Orrin Hatch

Mr. HATCH

Mr. HATCH. If the Senator will yield, the point I was making is this. Although Representative Clinger had a right to ask for it, I am not sure they should have given it to him. But they did. But at least before they gave it to him, somebody leaked it to U.S. News & World Report. That somebody had to be somebody in the Justice Department or the White House, which were the only two bodies who could possibly have had it. The White House called me, and, in all fairness to them, they said it wasn't them. So it had to be. If it was not them, the Justice Department, or somebody who got into the Justice Department, stole it. I do not think that is possible.

Mr. HATCH. The people there knew it.

Mr. HATCH. I have no idea. I imagine 45 minutes to an hour.

Mr. HATCH. I might add, it is going to take me a little bit of time to rebut what they have said. I will certainly be amenable to trying.

Mr HATCH

Mr HATCH. I yield to the distinguished majority leader. I would like to retain my right to the floor. Mr. LOTT addressed the Chair.

Mr. HATCH

Mr. HATCH. No, I didn't say that. I said he had been depositing some of the checks of the media.

Mr. HATCH. It was done regularly for years.

Mr. HATCH

Mr. HATCH. Mr. President, I want to commend my esteemed colleague from Colorado, Senator Campbell, for his vision and hard work on the drug trafficking problem in the Rocky Mountain region. I join him today in supporting the committee's focus on the unfortunate, growing tragedy in our region. The Rocky Mountain region contains three important States. My home State of Utah, Colorado, the home State for my colleague, Senator Campbell, and the State of Wyoming. It is important that the DEA and other Federal and State drug enforcement officers be able to accomplish their important tasks in each of these States, and the citizens of each one will benefit greatly from this project. It clearly is appropriate to this Senator that the Office of National Drug Control Policy should designate the States of Utah, Colorado, and Wyoming for increased assistance in the fight against drug traffickers. Again, I want to thank my colleagues Senators Shelby and Kerrey for their leadership and hard work on this important legislation. I yield the floor. gang resistance education and training program

Mr. HATCH

Mr. HATCH. Mr. President, everybody here knows I have worked hard to pass the hate crime statistics bill, I worked hard with the distinguished Senator from Massachusetts to pass AIDS bills and do other things that benefit people who are gay and lesbians. I believe that we should respond to the needs of our citizens in these regards. Special protected status in the law, however, is another matter. I, therefore, oppose this legislation. Mr. President, I oppose this legislation. This bill represents a massive increase in Federal power. The Federal bureaucracy will have a field day with this bill. The bill will be a litigation bonanza. Moreover, this bill deals in a blunderbuss way with an issue much more complex than issues raised by legislation addressing race, ethnicity, and gender. Sexual orientation involves conduct, not immutable nonbehavioral characteristics. Indeed, during the debate about homosexuals in the military, Gen. Colin Powell made this point in responding to the suggestion that discrimination against homosexuals in the military should be equated with racial discrimination. He said, Skin color is a benign, non-behavioral characteristic. Sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument. Indeed, this very bill exempts employment in the U.S. military, although it does not exempt the National Guard. It is totally indefensible to say that a black person should be denied the right to teach children of any race in any of our public or private schools. But should the Senate run roughshod over the concerns of parents and educators about having homosexuals teach their kids? I mentioned last week on the floor that Loudoun County, VA, parents and educators wanted to fire a male health and physical education teacher at a middle school, who was also an assistant athletic coach at a high school because of public homosexual conduct, in this case, participation in homosexual videos. Such concern is not triggered just by participation in videos. It can be triggered by public displays of romantic, physical affection between two persons of the same sex. In Loudoun County, the school superintendent said, We believe that teachers, as people who are chosen to be instructors as well as leaders of our young people, should be exemplary in their professional as well as personal lives. What we have here is an allegation of a lifestyle that is not in keeping with that. If the allegations are true, that is not conduct befitting a teacher. One parent of a daughter who attended a school where this person taught said she believed that what people do in their private lives is their business--unless they are teachers. ``I want our teachers to have the highest moral fiber. I'm not comfortable with him doing both.'' A school board member said, Here we have a teacher in a middle school working with children who are at that age where they are struggling with their identity. This is obviously a person who has made bad choices. To give someone like this access to children at that stage of development would be irresponsible of us. And just because some of the citizens of Loudoun County and across this country do not share the view of public morality of some of the sponsors of this measure, who seek to cast aspersions on opponents of this legislation, does not make those citizens bigots. Moreover, those proponents of this bill who, wrongly in my view, support blatant, intentional discrimination on the basis of immutable characteristics such as race and ethnicity in teacher hires in order to provide role models to students, are in no position to lecture parents concerned about the conduct of teachers as role models. Finally, I want to know how it is that proponents of a bill that itself exempts the military can dismiss the concerns of parents about the conduct of their children's teachers. I note, Mr. President, that if a school district wanted to dismiss, or decline to hire, a male teacher, for example, who engages in romantic, physical displays of affection in public with his male partner, this bill makes such a dismissal or refusal illegal--unless the school district will do the same regarding a male teacher's equivalent display of romantic affection for his wife or girlfriend. Additionally, this bill will empower the EEOC to require employers to collect statistics on the sexual orientation of their employees. One proponent of this bill last week said the bill does not give the EEOC this authority. That is wrong. The bill, at section 11, gives the EEOC, ``with respect to the administration and enforcement of this act'' the same power the EEOC has to administer and enforce title VII of the 1964 Civil Rights Act. Under title VII, the EEOC collects statistics on the race, ethnicity, and gender of employees. Would the EEOC request such information? No one in this body can assure us that the EEOC won't do so at some time in the future. Remember, the EEOC is one of those entities responsible for the growth and development of quotas and other preferences under title VII, relying heavily on statistics in the process. Moreover, it is well established that statistics can be used in intentional discrimination cases under title VII, such as pattern or practice cases. So, notwithstanding language in the bill about prima facie cases of disparate impact, this bill does not at all preclude the use of statistics in sexual orientation cases. Suppose a complainant, alleging that he was discriminatorily denied a promotion because he is a homosexual, asserts that a supervisor made anti homosexual remarks, and one or two more complainants make the same allegations. Those allegations, and evidence of a supervisor's anti homosexual remarks, could be combined by a Federal enforcement agency or private plaintiffs' lawyer with statistics on the number or percentage of homosexuals in the job in question, or the promotion rates based on sexual orientation, or both, to press a case of a pattern or practice of discrimination. Finally, let me note that this bill will lead to reverse discrimination and preferences in favor of homosexuals, and I will mention just one way that will happen. The bill's provision allegedly barring preferential treatment does not affect judicial power to enforce this bill. This bill gives the courts the same jurisdiction and powers as such courts have to enforce title VII of the Civil Rights Act of 1964. Further, the procedures and remedies applicable for a title VII violation are available under this bill. Under title VII's section 706(g), the Federal courts are authorized to order such affirmative action as may be appropriate in cases of intentional discrimination. The Supreme Court has said, unfortunately, that there are some cases in which a court may order numerical and other forms of preferential relief under title VII. Moreover, such preferential relief can be entered as part of a consent decree with the Federal Government, which wields enormous leverage over employers in these costly lawsuits, and in cases with private plaintiffs' lawyers. Proponents of this legislation have argued that it will not produce much litigation, because there have been very few cases brought in the States with similar laws. That prediction is not persuasive. By authorizing the EEOC to become involved in and to initiate law suits based on gender-preference discrimination, this bill would lead to scores of thousands of new law suits against persons acting on the basis of strongly held religious views. Consider the case of religious broadcasters, for example. This bill would force religious broadcasters to engage in hiring and promotion practices that are contrary to their reasonable, deeply held religious views. We should not force citizens to endorse sexual practices that are contrary to their religious views. This bill, however, would do just that. Let me also say that my support for the Hate Crimes Statistics Act, which Senator Simon and I have gotten through the Senate and enacted into law twice, is fully consistent with my position on this bill. My view that absolutely no one should be subjected to violence or vandalism because of who they are is, of course, widely shared. But it does not follow from the fact that while everyone, including homosexuals, should be free of violence, society must confer affirmative civil protections on the basis of sexual orientation not available, I might add, to everyone else. Let me just add this. There is a religious side to this that must be considered. There are sincerely believing, mainstream religious people in this country who believe we have gone too far in this matter. Can you imagine a religious broadcaster, because they are in a profitmaking business, having to comply with the provisions of this act? I urge the defeat of this legislation.

Mr. HATCH

Mr. HATCH. Mr. President, I ask that written testimony from Rabbi David Saperstein, director and counsel for the Religious Action Center of Reform Judaism, and a letter from Herman Hill Kay concerning S. 1740, the Defense of Marriage Act, be printed in the Record. Both Rabbi Saperstein and Mr. Kay submitted these materials to be included in the transcript of the hearing held before the Senate Judiciary Committee on July 11, 1996. Unfortunately, their statements were received too late to be included, and for that reason, I ask that they be printed in the Congressional Record. The material follows: Testimony of Rabbi David Saperstein i. introduction Mr. Chairman, members of the committee, thank you for this opportunity to comment on the ``Defense of Marriage Act'' (S. 1740). My name is Rabbi David Saperstein, and I am Director and Counsel of the Religious Action Center of Reform Judaism (RAC). The RAC represents the Union of American Hebrew Congregations and the Central Conference of American Rabbis, the lay and clerical bodies of Reform Judaism, with membership of over 1.5 million Reform Jews and 1700 Reform rabbis in 850 congregations nationwide. In recent years, both the parent bodies of the RAC have passed formal resolutions supporting gay civil marriage, and I have included copies of those statements as appendices to my testimony this morning. I am also an attorney who teaches advanced Constitutional Law, especially on the First Amendment's religion clauses at the Georgetown University Law Center. Over the years, I have written a number of books and articles addressing church- state and constitutional legal issues. This bill is woefully ill-advised and is morally wrong. Let me first address the legal concerns, lay out why this bill would likely fail to pass even the most forgiving constitutional test and why, under the current legal system, it is, unnecessary. I will then turn to some of the broader political and moral issues the bill raises. ii. legal observations on the defense of marriage act There are two key legal issues at stake in this legislation. The first is that the legislation is almost certain to be found unconstitutional both for its violation of the Full Faith and Credit clause and for its denigration of states rights as protected in the Tenth Amendment. The second issue is that it is, in all likelihood,--and from the perspective of my organizations, sadly--legally unnecessary since many of its key aims would be accomplished under the ``public policy exception'' to the conflict of laws rules, i.e. states would be able to avoid being forced to recognize same sex marriages if they determine such marriages to be in violation of fundamental public policy interests. A. Why Federal Government Intrusion in this Area is Unconstitutional The key issue in this regard is whether Congress has the power to abridge in any fashion the full faith and credit accorded sister states' judgments. While it will be offered by the proponents of the legislation that the measure does not restrict states' ability to offer full faith and credit, the plain face of the Constitution does not speak of a state's right to recognize sister states' judgments, rather, it is a mandate. As a doctrinal matter, while the proponents purport to be protecting states' rights and interests, they are, in fact, diluting those rights and interests. The clear expression in this legislation that the Congress has a role in determining when a state may not offer full faith and credit creates a standard of Federal control antithetical to the Tenth Amendment (and, ironically, to conservative political philosophy): that powers not enumerated for the Federal Government are reserved to the States. This legislation enumerates a Federal power, namely the power to deny sister states recognition, grants that power to the state, and therefore dangerously pronounces, expressio unius est exclusio alterius, that the Federal government in fact retains the power to limit full faith and credit and, for that matter, to regulate marital law more broadly. And it only need express that power substantive issue by substantive issue. This is an arrogation of power to the federal government which one would have assumed heretical to the expressed philosophy of conservative legislating. Under the guise of protecting states' interests, the proposed statutes would infringe upon state sovereignty and effectively transfer broad power to the federal government. Further, without exception, domestic relations has been a matter of state, not federal, concern and control since the founding of the Republic. Ankenbrandt v. Richards, 112 SCT 2206 (1992) (no subject matter jurisdiction in federal courts for domestic relations cases). There is simply ``no federal law of domestic relations.'' De Sylva v. Ballentine, 351 U.S. 570, 580 (1956). ``[T]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not to the laws of the U.S.'' In re Burrus, 136 U.S. 586, 593-4(1890). As a result, Congress has never before passed legislation dealing purely with domestic relations issues, especially marriage. As to the second prong of the Full Faith and Credit Clause, only rarely has Congress exercised the implementing authority that the Clause grants to it, and never in ways that limited application of the clause. The first, passed in 1790, 28 U.S.C.A. Sec. 1738, provides for ways to authenticate acts, records and judicial proceedings, and repeats the constitutional injunction that such acts, records and judicial proceedings of the states are entitled to full faith and credit in other states, as well as by the federal government. The second, dating from 1804, provides methods of authenticating non-judicial records. 28 U.S.C.A. Sec. 1739. Since 1804 these provisions have been amended only twice: the Parental Kidnapping Prevention Act of 1980, 28 U.S.C.A. Sec. 1739A, which provides that custody determinations of a state shall be enforced in different states, and 28 U.S.C.A. Sec. 1738B, ``Full Faith and Credit for Child Support Orders'' (1994). Neither of these statutes purported to limit full faith and credit; to the contrary, each of these statutes reinforced or expanded the faith and credit given to states. While the Supreme Court has not yet passed explicitly on the manner in which marriages per se are entitled to full faith and credit, it would appear from the face of the clause they should be afforded full faith and credit as either ``Acts'' or ``Records.'' In the absence of an express constitutional protection under full faith and credit, the general rule for determining the validity of a marriage legally created and recognized in another jurisdiction is to apply the law of the state in which the Marriage was performed. Albert A. Ehrenzweig, A Treatise on the Conflict of Laws, Sec. 138 (1961). Both Restatements support this general rule. Commentators to the Restatement urge that a choice of law rule that validates out-of-state marriages provides stability and predictability in questions of marriage, ensures the legitimization of children, protects party expectations, and promotes interstate comity. See, e.g., Hovermill. 53 Md.L.Rev. 450, 453 (1994). B. Why the Public Policy Exception Makes this Legislation Unnecessary There is, however, a recognized exception to this choice of law rule: a court will refuse to recognize a valid foreign marriage if the recognition of that marriage would violate a strongly held public policy of the forum state. Restatement (Second) Conflict of Laws Sec. 283 (1971). While we believe strongly that states should not invoke this power in this situation, that such a stance would be morally wrong and we will, accordingly, vigorously oppose all such efforts, until the Court makes a Constitutional ruling upholding same sex marriages within the rubric of a fundamental right (in which case the proposed legislation would clearly be useless), states will have a stronger argument under the public policy exception than they will under this legislation. Those states which desire to avoid the general rule favoring lex celebri will rely on an enumerated public policy exception to the rule through state statute, common law, or practice, and will make a showing that honoring a sister state's celebration of marriage ``would be the approval of a transaction which is inherently vicious, wicked, or immoral, and shocking to the prevailing moral sense.'' Intercontinental Hotels Corp. v. Golden, 203 N.E. 2d 210, 212 (N.Y. 1964). The rhetoric notwithstanding, the public policy exception will provide a means for states to withhold full faith and credit, (subject to the limitations of other constitutional provisions, i.e. equal protection, substantive due process, etc.) States will express their public policy exception to recognize same-sex marriages in other states by offering such legislation as gender specific marriage laws, and anti-sodomy statutes. Different courts have required different levels of clarity in their own state's expression of public policy before that exception could be sustained in that stat's court. Some have required explicit statutory expressions, Etheridge v. Shaddock, 706 S.W.2d 396 (AR 1986), while others much less clearly so, Condado Aruba Caribbean Hotel v. Tickel, 561 P.2d 23, 24 (CO Ct App 1977). Courts have considered a marriage offensive to a state's public policy either because it is contrary to natural law or because it violates a positive law enacted by the state legislature. Courts have invalidated foreign marriages that are incestuous, polygamous, and interracial, or marriages with a minor on the ground that they violate natural law, e.g., Earle v. Earle, 126 N.Y.S. 317, 319 (1910). For invalidation based on positive law, some courts have required clear statutory expressions that the marriages prohibited are void regardless of where they are performed, State v. Graves, 307 S.W. 2d 545 (AR 1957), and sometimes a clear intent to preempt the general rule of validation. E.g., Estate of Loughmiller, 629 P.2d 156 (KS 1981). Other courts create not so high a hurdle, such that a statutory enactment against the substantive issue was sufficient. Catalano v. Catalano, 170 A.2d 726 (Ct 1961) (finding express prohibition in a marriage statute and the criminalization of incestuous marriages sufficient to invalidate an out-of-state marriage). Those states that are enacting anti-same sex marriage statutes will likely find they have satisfied the first exception to the choice of law rule validating a marriage where celebrated, lex celebri. Interracial marriages were, before Loving v. Virginia, treated with the above choice of law analysis, and courts frequently determined the validity of interracial marriages based on an analysis of the public policy exception. ``Early decisions treated such marriages as contrary to natural law, but later courts considered the question one of positive law interpretation.'' 53 Md LRev at 464. How do these rules, then, apply to the question at hand? First, it would seem that states do have the ability to check the impact of the conflict of laws recognition as described above. However, it should be noted that where there have been such limitations those that have held up over time are those that have been aimed at protecting parties involved in marriage (i.e. spouses and potential children) such as prohibitions against incestuous relations, marriages involving a minor, polygamy. The ban on interracial marriages--the argument most analogous to this situation--was aimed at protecting the society's perception of public mores and public morals at a given moment. That shifted from a natural law argument to a positive law argument to its rejection based on Constitutional doctrine. I suggest that this is the very direction laws related to same sex marriages are moving--a direction we wholeheartedly approve of, but, under current law, the public exception doctrine would probably prevail in most states. It should be noted, however, that in 17 states, the status of the public policy exception is called into question by the Uniform Marriage and Divorce Act, which provides that ``[a]ll marriages contracted within this State prior to the effective date of the act, or outside this State, that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted or by the domicile of the parties, are valid in this State.'' 9A U.L.A. Sec. 210 (1979). The Act specifically drops the public policy exceptions; ``the section expressly fails to incorporate the `strong public policy' exception to the Restatement and thus may change the law in some jurisdictions. This section will preclude invalidation of many marriages which would have been invalidated in the past.'' Id., official comment. Of course, any state that wants to reassert a public policy exception for same sex marriages retains the right to so legislate, or not. The proposed federal bill has no effect on that. C. Constitutional Restraints There are several possible Constitutional limits on a state's ability to invoke a public policy exception to the general rule of validating foreign marriages under the Full Faith and Credit Clause, the Due Process Clause, Equal Protection or Substantive Due Process. As to due process, the second state must, before it can apply its own law, satisfy that it has ``significant contact or a significant aggregation of contacts'' with the parties and the occurrence or transaction to which it is applying its own law. Allstate Ins Co v. Hague, 449 U.S. 302 (1981). The contacts necessary to survive a due process challenge have been characterized as ``incidental,'' 53 Md L Rev at 467, and the fact that the same sex couple is probably a domiciliary of the second state would be enough to satisfy the Hague test. Substantive due process and equal protection can bar a state's application of the public policy exception as well. For the former, a court would have to find that there is a fundamental right for gay couples to marry. There is complete agreement that there is a fundamental right to marry, Zablocki, v. Redhail, 434 U.S. 374 (1978), and the argument will be pursued that this incorporates marriage of gay men and lesbians to each other. Turning to an Equal Protection analysis, a state's anti- same sex marriage statute could be subjected to one of three levels of scrutiny. City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). If it is viewed as almost all statutory enactments, it will receive rational basis review, and will, in almost all circumstances, survive challenge. If an argument can be persuasive that the anti same sex marriage statute is discrimination based on gender, it may well receive intermediate scrutiny. No court has yet been persuaded that anti-same sex marriage laws are gender-based discrimination, e.g., Baker v. Nelson, 191 N.W. 2d 185 (MN 1971). For strict scrutiny, the court would have to elevate, for the first time, classifications based on sexual orientation to that of strict scrutiny--a level which we believe is appropriate in theory, but nowhere operative. The key point here is that if our view on the standard should prevail and becomes the standard adopted by the federal courts, then the legislation before you would be invalidated just as the public policy exception would be validated. So, again, the legislation would accomplish nothing. D. Conclusion Whatever the result of this proposed legislation, a legal quagmire awaits us. If under any of these scenarios the Full Faith and Credit Clause does not compel states to honor each other's marriages, there is virtually universal argument that it does operate to compel recognition of each other's adoption judgments, divorce decrees, and final custody determinations. We could someday find ourselves in legal situations in which a couple, considered married in one state and unmarried in another, seeks divorce in the first state and recognition of a divorce decree in a state which did not ever consider them married. This is not the uniformity one would desire from the plain language of the Full Faith and Credit clause, but the proposed legislation has no bearings on the situation anyway. Congress simply cannot change the core application of the Full Faith and Credit Clause no matter how it legislates. Until a court determines that marriage is entitled to the same full faith and credit accorded divorce or other judgments, the anomalies will remain. III. moral and political concerns If the legislation is unconstitutional and unnecessary, why we are here today at all? We all know that same-sex civil marriage is not an issue of overwhelming importance to the average citizen. From our perspective, of course, we wish more people did care about this issue, about according gays and lesbians this fundamental right. Sadly, that is not yet the case,--but someday it will be. But the reality as we sit here today, discussing this specious proposal, is that our cities are mired in poverty, violence is on the rise, the middle class is shrinking and losing ground economically, talented, educated young people cannot find jobs; and incivility and divisiveness abounds in our public and culture life. Does anyone here doubt that if we left the dignified solemnity of this room and ventured onto the streets outside the Capitol-- or onto the streets of your home states--to ask people what most troubles them, very few, if any, would say ``same-sex civil marriage.'' This bill is not about protecting families. Certainly my family and your families will not be hurt by giving states the freedom to recognize the committed relationship of two loving adults. This bill is about politics, and whether it is your intent or not, this bill will surely turn out to be about gay bashing and scapegoating. Who gives us this bill? The same people who elsewhere complain of big, intrusive government; who believe that the Federal Government overregulates; who stand on ideological principle for the rights of State and local governments. These same people now want to weaken States' rights by enacting a dubious and discriminatory exemption to the ``Full Faith and Credit'' Clause. How strange. How odd that politicians who elsewhere wax eloquent about the sanctity of marriage and the wisdom of small government would now have the Federal Government massively moved into an arena effecting the most intimate aspects of people's lives shattering the Constitution's protections of States' rights and legitimizing the invalidation of civil marriages of committed, loving adult couples simply because they happen to be of the same sex. Mr. Chairman, my mind keeps returning to one question: How can two living adults coming together to form a family harm family values? Are our families and marriages and communities so fragile and shallow that they are threatened by the love between two adults of the same sex? Proponents of this legislation argue that families are the cornerstone of our society, and that, today, families are threatened. I agree. But what truly threatens families? Poverty threatens families, yet we face assaults on all types of programs aimed at supporting families in economic distress. Unemployment, underemployment and stagnant wages threaten families, yet this Congress has been tragically silent as corporations cut jobs and employees in a myopic obsession with short-term profits. Efforts to thwart a livable minimum wage, quality child care, and lack of education threatens families, yet almost every vital part of this country's public education infrastructure, from the Department of Education to Head Start is under attack today. Polluted air and drinking water threaten families, yet the vital environmental laws that keep our water and our air and our communities clean are similarly under attack. And that, sadly, is what this bill is all about. It is about saying to the American people, ``Pay no attention to these truly anit-family policies; gay men and lesbians are the real threats to the security and sanctity of your marriages, your homes, and your communities.'' This bill is about targeting scapegoats; and as a people who have been the quintessential scapegoats of Western civilization, we stand with our gay and lesbian brothers and sisters in saying that this bill is immoral and unjust. A national debate over this unnecessary and unconstitutional bill will only distract America from finding real solutions to real problems. Above all, the bill will only serve to codify bigotry. It has been proposed for no other reason than because some States and localities have properly interpreted the spirit, if not the letter, of the Fourteenth Amendment to the Constitution to require them to treat gays and lesbians no different under the law than heterosexuals. Mr. Chairman, the stamp of the divine is found in the souls of all God's children--gay, lesbian and straight. The love that God calls us to, the love that binds two people together in a loving and devoted commitment, is accessible to all God's children. Let the State acknowledge that. This legislation betrays those values. This Congress deserves a better legacy; the American people deserve a better, and more loving, vision. Thank you for your consideration.

Mr. HATCH

Mr. HATCH. I thank my colleague.

Mr. HATCH. Mr. President, while the proponents of this bill have tried to minimize the potential impact of the bill, the fact is that, if it passes, the public and private employers of America subject to title VII will face the juggernaut of the Federal enforcement machinery. Anyone who contends that this bill will not result in a litigation boom is not paying attention to the caseloads at the EEOC and Department of Justice. Let me say, once again, that equating opposition to this bill with opposition to civil rights measures for racial and ethnic minorities and women is totally unfair and serves only to divert attention away from the ramifications of the bill before us, which I described in my opening remarks. Moreover, it equates conduct with immutable characteristics. I think General Powell's comments, which I also cited earlier, on this equation are well worth considering. Some proponents of this bill bundle off concern by parents and educators about role models in the schools as nothing more than bigotry. But no answer was voiced to the examples I mentioned earlier about a heterosexual male teacher publicly displaying physical affection for a spouse or girlfriend, and a homosexual teacher publicly displaying physical affection for a male partner. Should Congress force a school district to treat both teachers the same? The proponents of the bill say yes. I say no. The supporters of the bill can offer bland assurances about whether the bill authorizes the EEOC to collect data on the sexual orientation of an employer's employees. They can claim the bill does not talk about statistics, but that is very misleading because the bill cross references title VII in so many ways. Section 11(a)(1) of the bill gives the EEOC ``the same powers as [it] has to administer and enforce title VII of the Civil Rights Act of 1964. * * *'' Under title VII, the EEOC requires a number of employers to provide data on the race, ethnicity, and gender of employees. Therefore, this bill empowers the EEOC to require employers to provide data on the sexual orientation of employees, plain and simple. And, these statistics and evidence of so- called underrepresentation can be used in cases of intentional discrimination. With respect to this bill's incorporation by reference of title VII's remedial scheme, including section 706(g) of title VII, see section 11(a)(5), I say again that the Supreme Court has allowed courts to impose preferences as remedies in some cases until title VII. The courts will have the same power under this bill. The Attorney General's ability to enter into consent decrees which encompass preferences, along with the ability of private parties to do so, under title VII has been set forth in Supreme Court precedent, however much some of us may disagree with those decisions. This bill provides for the same results. [Sections 11(a)(4) and 11(b)]. Mrs. KASSEBAUM addressed the Chair.

Mr. HATCH. Keep in mind the Senator just got through equating homosexuality with race, which is exactly what is going to happen should this legislation pass. Mr. President, I might add that the experience under State law that he refers to is largely irrelevant. Experience under State law cited by my friend from Massachusetts, in my opinion, is irrelevant. I cited the remedial provision of title VII, section 706(g), which gives Federal courts the power to award affirmative action relief. That is extremely different from the State statutes with regard to this. The Supreme Court has said in some cases preferential relief can be granted. The Court said that consent decrees with preferential relief may be entered. Since the bill does incorporate section 706(g), the same thing is going to happen here. It opens up a massive Federal role in employment matters with regard to gay and lesbian people. I have to say I am uncomfortable with both sides on the issue because I think the bill is not written well. I think it does not solve these problems. It will lead to tremendous Federal Government control over the employer workplace throughout the country, and I think it will lead to the same sort of sets of preferences that we see today under title VII that were said could never happen. These are some of the things that bother me. On the other hand, I do not want to see gay and lesbian people discriminated against. But I just heard my colleague from Massachusetts equate homosexuality with race by saying the churches have had to comply with the Civil Rights Act. That is true. On the other hand, he excludes churches in here but not the profitmaking aspects of the church, of the particular churches involved, which may include publication, it may include running facilities for the benefit of their members, it may include any number of other situations that may be considered profitmaking. Yet the particular religious belief may be such that it condemns homosexual conduct and sincerely does so and does so as a right of that religious institution, longstanding religious institutions in some cases, highly recognized, mainstream churches that have doctrines and principles that condemn homosexual conduct, and yet it would require them to have to comply with this law as it is written, and I believe in ways that will be very similar, no question about it, in ways that will be exactly like the requisites of title VII today. As Gen. Colin Powell so eloquently stated in a May 1992 letter to Representative Pat Schroeder defending restrictions on homosexuals in the military, he said: Skin color is a benign nonbehavioral characteristic. Sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument. I think he makes a good point. I do not think there is any question about it. This bill gives the EEOC the same power to administer and enforce this bill as the EEOC has under title VII. Under title VII, the EEOC collects statistics. It is in the regulations in 29 CFR, subpart A, B, and C. So to compare this with the States and the fact that there may be a dearth of suits under State law belies the fact that under Federal law there will be a proliferation of suits and I think testing of this matter all over the country, and I do not know that you will have any choice other than to apply the law as the Supreme Court has interpreted section 7 in bygone days and bygone ages. If that is the case, you are going to have, I think, an awful lot of difficulty in our society and especially among religious institutions and others that take highly moral views of these matters that I think will be very disruptive to our country. Having said that, I would like to continue to explore a way, some way of encouraging people in our country to be fair to gays and lesbians in our society. I do not think anybody should be discriminated against. On the other hand, these Federal statutes have sometimes resulted in discrimination against people who have sincerely held beliefs, religious or otherwise, that I think are valid. So having said that, I do not see the analogy, but I will accept the statements of the distinguished Senator from Massachusetts as said with regard to the dearth of cases in some of these States under State law. Under Federal law there will be a proliferation. I guarantee it. I do not think anybody doubts it. I think we have seen it and we will see it in the future if this bill passes.

Mr. HATCH. Mr. President, I oppose this legislation. The bill before the Senate has vast ramifications. This bill represents a massive increase in Federal power. For example, Federal bureaucrats, Federal courts, and plaintiffs' lawyers will be given enormous new sway over our Nation's private employers, as well as State and local governments. This bill will be, if it passes and becomes law, a litigation bonanza. I think I have a reputation around here as supporting civil rights legislation. I do not want to see any discrimination against anybody in our society. As the coauthor of the AIDS bill, as the coauthor of the Hate Crimes Statistics Act, and other bills, I think my reputation is that of someone who decries discrimination in any form in our society. However, this bill, in my opinion, is the wrong way to go. Moreover, notwithstanding ineffective language in the bill, Federal bureaucrats at the Equal Employment Opportunity Commission, lawyers at the Department of Justice, along with plaintiffs' lawyers in Federal courts, will open up an entirely new category of preferences and reverse discrimination. This new category, make no mistake about it, will be based on sexual orientation. The moral and religious sensibilities of millions of Americans will be overridden if this legislation comes to pass and is enacted into law. Let me turn to each point, starting with the vast increase in Federal Government power created by this bill. Mr. President, I respectfully submit that a vote for this bill is a vote to give the Equal Employment Opportunity Commission the power to require employers to provide the Government with data on the sexual orientation of their employees. Today, under title VII, the EEOC asks numerous employers to provide statistics on the racial, ethnic, and gender composition of their work forces and new hires. Let me stress, so that no one is misled by the bill's section on disparate impact, that statistics on the composition of a work force are not used just in disparate impact cases. These statistics are frequently used to prove cases of intentional discrimination on the basis of race, ethnicity, and gender, including pattern and practice cases. Section 11 of the bill grants to the EEOC ``with respect to the administration and enforcement of this act'' the same power the EEOC has to administer and enforce title VII of the 1964 Civil Rights Act. The EEOC, the Department of Justice, and plaintiffs' lawyers, will be able to use such statistics on the sexual orientation of employees at a particular workplace in proving cases of intentional sexual orientation discrimination under this bill. As I mentioned earlier, these would include pattern and practice cases that the Federal Government is now able to bring against employers under title VII. Here is what is authorized by this bill: someone alleges that he or she was denied a job because of the complainant's homosexuality. The Federal Government investigates. Perhaps there is evidence that a supervisor in the personnel office made statements expressing disapproval of homosexuality. Perhaps the Department of Justice or the EEOC received similar complaints from one or two other job applicants. The appropriate Federal agency could then turn to the statistical profile of that employer's work force and recent hires. If there are no homosexuals in that work force, or virtually none, if all or almost all recent homosexual job applicants were denied a job, those statistics can be used by the Government, or in a private lawsuit, as evidence of intentional discrimination. I hope that no Senator is under the misimpression that the use of statistical evidence in so-called underrepresentation cases is forbidden by this bill. This bill authorizes, indeed invites, the use of statistics based on sexual orientation by its grant to the EEOC of authority that it now has under title VII. Now some might ask, would the EEOC really seek such statistics? My answer is that EEOC is part of the very same bureaucracy which presently makes heavy use of statistics under title VII, and which played so crucial a role in the creation of preferences and reverse discrimination under that statute. Let me give one more example of the vast power this bill gives to the Federal bureaucracy and the Federal courts. Under title VII, harassment in the workplace on the basis of race, ethnicity, gender, and religion is forbidden, and properly so. If this bill becomes law, what is going to happen if a supervisor, based on religious or moral beliefs, expresses disapproval of homosexuality and there are homosexual employees in that workplace? What is going to happen if one or more employees express such views and supervisors are aware of those investigations and do nothing about them? The answer is there will likely be a lawsuit claiming a hostile work environment exists which adversely affects homosexual employees. However that lawsuit is resolved, think of the new costs imposed on our Nation's employers in dealing with these new lawsuits. It is bad enough under the current law. Mr. President, it is also certain that reverse discrimination and preferences will result from this bill. Some will ask, how can that be? The bill says ``a covered entity shall not give preferential treatment to an individual on the basis of sexual orientation.'' That is in section 7. But the bill says something more. The bill gives Federal courts ``The same jurisdiction and powers as such courts have to enforce title VII of the Civil Rights Act of 1964.'' That is in section 11(a)5. Further, ``The procedures and remedies available for a title VII violation'' are available under this bill, and that is section 11(b)1. Now, let us take a look at section 706(g) of title VII. That provision of title VII says that if the court finds that an employer intentionally discriminated, the court may enjoin such discrimination ``and order such affirmative action as may be appropriate or any other equitable relief as the court deems appropriate.'' Now, Mr. President, if you only read this bill, you will miss the powers this bill grants to the Federal Judiciary, including those pertaining to affirmative action are not evidence. We all know, Mr. President, regrettably, that the Supreme Court has construed section 706(g) of title VII to permit Federal courts in limited circumstances of persistent egregious, intentional discrimination to impose preferences as remedies in title VII cases. I have said the preferences are never appropriate as a remedy. But the same remedies under title VII will be available under this bill. Preferences on the basis of sexual orientation will be imposed when Federal courts think that an employer has intentionally discriminated in a persistent and egregious way, and whether we agree with this view or not, many employers have very strong religiously based/morally based objections to homosexuality which they may reflect in their employment practices that could well give rise to remedial orders of a preferential way in a number exceeding that which we have seen under title VII. Further, the Supreme Court has told us that a consent decree pursuant to a statute is part contract and part enforcement of the statute itself. The Federal agencies which bring the lawsuits under this bill have enormous leverage. These cases are very costly to defend, make no mistake. These agencies, as well as plaintiffs' lawyers in private cases, will also be able to extract consent decrees containing preferential relief from employers because the employers paid then because it is too expensive to fight them. Section 7 of this bill does not order the analysis. It does not limit a court's remedial power. Title VII has a similar provision, yet the Supreme Court told us the remedial authority of the courts are governed by section 706(g). The proponents of this bill can make the very same statement that our revered late colleague and dear friend of mine, Senator Hubert Humphrey, made during debate on the 1964 Civil Rights Act in response to concerns expressed about preferences and quotas. He said he would eat the pages of the Congressional Record, one after the other, if someone could show him where these preferences are in title VII. Within 5 years after the enactment of that act, Federal agencies and courts had misused title VII to create preferences, something the prime sponsor of that bill said could not occur. The very same agencies will enforce this bill on sexual orientation, under virtually identical provisions. So if the proponents of this bill want to tell the Senate the same thing our dear colleague Senator Humphrey told the Senate in 1964, I have no doubt that someday I will be sending them a copy of today's Congressional Record, together with a knife and fork and something to wash down the pages. I might add this, that a plaintiff's ability to use statistics to prove intentional discrimination is going to be a powerful silent incentive to employers to hire by the numbers on the basis of sexual orientation, in order to avoid these lawsuits. Mr. President, let me make one more point on affirmative action under this bill. There are forms of remedial affirmative action under title VII that I do support. For example, I believe it is appropriate for employers to be required to recruit and advertise to increase the applicant pool for members of such groups. This is a fairly routine remedy. Under this bill, an employer who discriminates on the basis of sexual orientation against homosexuals will likely be required to undertake such recruitment, such as by advertising among homosexual groups and media outlets. Should we be imposing this requirement on employers in the matter of sexual orientation? I do not think so. Let me note, Mr. President, that many employers have honest moral, religious-based objections to hiring homosexuals. These are views that should not be dismissed. I will mention one example. The July 19, 1996, Washington Post reported that a Loudoun County teacher and coach had starred in gay pornographic videos. This person had a job teaching health and physical education at Farmwell Station Middle School in Ashburn, VA. He was also an assistant coach for boys football, baseball, and wrestling at a high school. Loudoun School Superintendent Edgar B. Hatrick III said if the allegations were true, he would seek to fire the teacher. He noted, ``We believe that teachers, as people who are chosen to be instructors as well as leaders of our young people, should be exemplary in their professional as well as personal lives. What we have here is an allegation of a lifestyle that is not in keeping with that. If the allegations are true, that is not conduct befiting a teacher.'' I suspect that the principal would have taken the same attitude if it had been a pornographic movie starring a heterosexual teacher, and rightfully so. One parent of a daughter who attended a school where this person taught said she believed that what people do in their private lives is their business--unless they are teachers. ``I want our teachers to have the highest moral fiber. I'm not comfortable with him doing both.'' A school board member said, ``Here we have a teacher in a middle school working with children who are at that age where they are struggling with their * * * identity. This is obviously a person who has made bad choices. To give someone like this access to children at that stage of development would be irresponsible of us.'' Mr. President, those views are overridden by this bill. And even if one disagrees with these school officials and parents, as the proponents of this bill may do, is it appropriate for this Senate to run roughshod over their concerns? I know the supporters of this bill, including President Clinton who has strongly endorsed it, are sincere. In particular, I have worked very closely in the past with my friend, Senator Kennedy, on these matters. I have tried to be with him where I believe he is correct, and he has tried to be with me where he believes I have been correct. But the people in Loudoun County and millions of other Americans who agree with them are also sincere. Mr. President, in the version of this bill introduced last night, section 10 states that a covered employer can enforce rules ``regarding nonprivate sexual conduct, if such rules of conduct are designed for, and uniformly applied to, all individuals regardless of sexual orientation.'' This provision provides little help to the people of Loudoun County and across this country who have similar concerns. Its fundamental flaw is that in order to enforce rules under this section, homosexuality and heterosexuality must be treated entirely alike. Suppose a male teacher kisses his female spouse goodbye in front of the schoolchildren in the morning as she drops him off at school. Some might find such warmth and affection between husband and wife a good thing for the children to see. But Loudoun County would have to fire that male teacher before this bill would permit the county to fire a male teacher for kissing his male partner in front of the children at school. Or, suppose a single male teacher, during nonschool hours and in public, holds hands, walks arm in arm with his girlfriend, and engages in some kissing. I can well understand if the school authorities do not find that public behavior a matter for discipline. Under this bill, however, these same school authorities could not take action against a male teacher who engages in the very same public actions I just mentioned, with another male. I think that forcing Loudoun County to treat both situations the same, in terms of role models for schoolchildren and the other concerns parents and educators might have, is wrong. Mr. President, let me note some of the other flaws in the bill. The bill says it does not apply to the Armed Forces, defined as the Army, Navy, Air Force, Marine Corps, and Coast Guard. But the bill would apply to other elements of our military structure, such as the National Guard. Moreover, if the proponents of the bill think the military should be exempt, why didn't they exempt State and local police departments, and other law enforcement agencies at the local, State, and Federal levels? These are paramilitary organizations. They deal with domestic threats to the peace and our security. If some of the forces that deal with foreign threats to the peace and our security are exempted from the bill, why shouldn't the domestic law enforcement agencies be treated the same way? I might add that in many States homosexual conduct is illegal, by statute or common law, yet this bill would compel the law enforcement agencies in those States to hire individuals who are acknowledged to engage in such conduct. Let me also say that my support for the Hate Crimes Statistics Act, which Senator Simon and I have gotten through the Senate and enacted into law twice, is fully consistent with my position on this bill. My view that absolutely no one should be subjected to violence or vandalism because of who they are is, of course, widely shared. But it does not follow from the fact that while everyone, including homosexuals, should be free of violence, society must confer affirmative civil protections on the basis of sexual orientation not available, I might add, to everyone else. I would urge President Clinton to reconsider his support of this bill. I don't think we would be taking it up today if he wasn't such a strong backer of the bill. I don't think it would have a chance of passage if he opposed the bill, a bill which has so many noticeable flaws. Mr. President, those are just some of my feelings with regard to this bill. I have watched these EEOC applications of title VII and the court applications of title VII for many years. I believe that I have spoken the truth here about what really is happening, what has happened, and what will happen if this bill is passed. It would lead to a bonanza of litigation that would be second to none in the history of this country, and I think, frankly, that it is not in the best interest of the country, and would be used to trample right over the rights of many people who have sincerely held religious views about the matter. Mr. President, I may have some more to say about this bill later. I yield the floor at this time. Mr. KENNEDY addressed the Chair.

Mr. HATCH. Mr. President, could I just answer the Senator? If the distinguished chairman will yield 2 minutes to me, I would appreciate it.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce legislation with Senators Conrad, Pressler, Pryor, Nickles, and Baucus that would make permanent the current moratorium on the application of the pension nondiscrimination rules to State and local government pension plans. For nearly 20 years, State and local government pension plans have been deemed to satisfy the complex nondiscrimination rules of the Internal Revenue Code for qualified retirement plans until Treasury can figure out how or if these rules are applicable to unique Government pension plans. This bill simply puts an end to this stalled process and dispels over 20 years of uncertainty for administrators of State and local retirement plans. Let me summarize the evolution of this issue and why this bill is being introduced today. Mr. President, the Federal Government has a long-established policy of encouraging tax deferred retirement savings. Most retirement plans that benefit employees are employer sponsored tax deferred retirement plans. Over the years, Congress has required that these plans meet strict nondiscrimination standards designed to ensure that they do not provide disproportionate benefits to business owners, officers, or highly compensated individuals. In response to the growing popularity of employer sponsored tax deferred pension plans, Congress passed the Employee Retirement Income Security Act [ERISA] in 1974 to enhance the rules governing pension plans. However, during consideration of ERISA Congress recognized that nondiscrimination rules for private pension plans were not readily applicable to public pension plans because of the unique nature of governmental employers. Former Representative Ullman, during Ways and Means Committee consideration of ERISA, stated, ``The committee exempted Government plans from the new higher requirements because adequate information is not now available to permit a full understanding of the impact these new requirements would have on Governmental plans.'' Thus, Congress was not prepared to apply nondiscrimination rules to public plans. After studying the issue, the Internal Revenue Service on August 10, 1977, issued News Release IR- 1869, which stated that issues concerning discrimination under State and local government retirement plans would not be raised until further notice. Thus, an indefinite moratorium was placed on the application of the new rules to government plans. In 1986, Congress passed the Tax Reform Act of 1986, which made further changes to pension laws and the general nondiscrimination rules. On May 18, 1989, the Department of the Treasury, in proposed regulations, lifted the 12-year public sector moratorium and required that public sector plans comply with the new rules immediately. However, further examination revealed, and Treasury and the IRS recognized, that a separate set of rules was required for State and local government plans because of their unique features. Consequently, through final rules issued in September 1991, the Treasury reestablished the moratorium on a temporary basis until January 1, 1993, and solicited comments for consideration. In addition, government pension plans were deemed to satisfy the statutory nondiscrimination requirements for years prior to 1993. Since then, the moratorium has been extended three more times, the latest of which began this year and is in effect until 1999. Mr. President, here we are, in August 1996, 22 years since the passage of ERISA and State and local government pension plans are still living under the shadow of having to comply with the cumbersome, costly, and complex nondiscrimination rules. Experience over the past 20 years has shown that the existing nondiscrimination rules have limited utility in the public sector. Furthermore, the long delay in action illustrates the seriousness of the problem and the doubtful issuance of nondiscrimination regulations by the Department of the Treasury. Mr. President, last year during consideration of another extension of the moratorium, a coalition of associations representative of State and local governmental plans summarized their current position in a letter to IRS Commissioner Margaret Richardson dated October 13, 1995. In our discussions with Treasury over the past two years, there have been no abuses or even significant concerns identified that would warrant the imposition of such a cumbersome thicket of federal rules on public plans that already are the subject of State and local government regulation. Accordingly, while we always remain open to further discussion, as our Ways and Means statement indicates the experience of the past two years in working with Treasury to develop a sensible and workable set of nondiscrimination rules for governmental plans has convinced us that the task ultimately is a futile one--portending tremendous cost, complexity, and disruption of sovereign State operations in the absence of any identifiable problem. Mr. President, the sensible conclusion of this 20 year exercise is to admit that the Treasury is not likely to issue regulations for State and local pension plans and Congress should make the temporary moratorium permanent. Furthermore, there are examples to support this legislation. Relief from the pension nondiscrimination rules is not a new concept. Multiemployer plans are currently not covered by the nondiscrimination rules under the theory that labor-management collective bargaining will ensure nondiscriminatory treatment to rank-and-file workers. In reality, Mr. President, State and local government pension plans face an even higher level of scrutiny. State law generally requires publicly elected legislators to amend the provisions of a public plan. Electoral accountability to the voters and media scrutiny serve as protections against abusive and discriminatory benefits. Moreover, further precedent exists for Congress to grant relief from the nondiscrimination rules. In 1986, the Congress established the Thrift Savings Fund for Federal employees. As originally enacted, the Fund was required to comply with the 401(k) nondiscrimination rules on employee contributions and matching contributions to the fund. However, in 1987, as part of a Continuing Appropriations Act for 1988, the Congress passed a provision that made these nondiscrimination rules inapplicable to the Federal Thrift Savings Fund. Thus, Congress has reaffirmed the need to treat Governmental pension plans as unique. Mr. President, this legislation is not sweeping nor does it grant any new treatment to these plans. Because of moratorium, governmental plans are currently treated as satisfying the nondiscrimination rules. Lifting the moratorium would impose on governmental pension plans the costly task of testing for discrimination when no significant abuses or concerns exist. In fact, finally imposing these rules may require benefits to be reduced for State and local government employees and force costly modifications to these retirement plans. This legislation coincides with the principle of allowing a State to enjoy the right to determine the compensation of its employees. Mr. President, with another expiration of the moratorium looming in the future, I believe it is time to address this issue. I am under no delusion that it will be resolved quickly. The complexities of these rules and the uniqueness of governmental plans have brought us to where we are today. I believe that as members better understand the history of this issue they will agree with us that the appropriate step is to end this uncertainty and make the temporary moratorium permanent. Mr. President, I ask unanimous consent that the text of the bill be printed following my remarks.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce S. 2040, a bill to prevent the use of controlled substances to facilitate rape. This bill is to strike back at those who would use controlled substances to engage in the most reprehensible of crimes. Joining me in cosponsorship of this legislation is Senator Hutchison. Mr. President, earlier in the year as a member of the congressional task force on national drug policy, I joined in issuing a report, ``Setting the Course: A National Drug Strategy.'' This report noted that every survey of teenage drug use in the past two years indicates not only increasing use of dangerous drugs among teens, but a disturbing change in the attitudes teens have about the dangers of drug use. Two very important surveys have confirmed that teenage drug abuse is on the rise. The first study is the national high school report, Monitoring the Future, which surveys over 50,000 students in some 400 public and private secondary schools. The second study is the annual survey by the Parents' Resource Institute for Drug Education, which surveys nearly 200,000 ninth to twelfth graders. While these studies focused on the use of marijuana, the use of hallucinogens, stimulants, and other drugs are also on the rise. According to reports by the Center on Addiction and Substance Abuse, adolescents who use marijuana are 85 times more likely to move to other dangerous drugs, such as cocaine. As a recent report that we issued from the Judiciary Committee, Losing Ground Against Drugs noted: The implication for public policy is clear. If such increases are allowed to continue for just two more years, America will be at risk of returning to the epidemic drug use of the 1970's. While the overwhelming abuse of drugs by teenagers focuses on illicit drugs, the illegal diversion and misuse of medicines is also a growing problem in our country. During the past few years, there has been increasing abuse of a drug called rohypnol. Rohypnol is not approved for marketing in the United States but it is a legitimate therapeutic agent that is approved for use in several countries to treat sleep disorders. According to a report from the Haight Ashbury Free Clinic, several abuse patterns of rohypnol have evolved in the United States. Rohypnol is being abused by heroin addicts as an enhancing agent for low-quality heroin, as well as in combination with cocaine. In some areas it is referred to as a ``club drug''--where it is used by so called ``recreational'' users who intermittently abuse a variety of substances. However, the most disturbing use of rohypnol is its use to facilitate the rape of women. Reports continue to be made that rohypnol has been illicitly put into the drinks of unsuspecting victims before they are sexually assaulted. I believe that the Federal Government must show that it will not tolerate the use of this drug--or any drug--to facilitate rape. I believe it is necessary and appropriate to establish a new provision that establishes tough penalties for the use of any controlled substance to facilitate rape. Rohypnol abuse was initially reported in Florida and Texas, but its use has now become more widespread. In an effort to stem the illegal flow of rohypnol into the United States, the U.S. Customs Service developed and implemented a ban on the importation of rohypnol into the United States. Unfortunately, the problem continues to grow. Rohypnol is a member of the widely-used class of prescription medications known as benzodiazapines. This class of drugs is used to treat sleep disorders, anxiety disorders and to control seizures, among other purposes. When used for legitimate medical purposes, this class of drugs is vital to the physical and mental health of thousands of Americans. The Controlled Substances Act establishes five schedules of controlled substances, based primarily upon a drug's relative potential for abuse. Drugs listed in schedules I and II are those with the highest potential for abuse, while drugs listed in schedule V are those with the lowest potential for abuse. Rohypnol is currently listed in Schedule IV of the Controlled Substances Act. In addition to rohypnol, more than twenty other benzodiazepine substances are listed as a Schedule IV substance. Rohypnol is not marketed or manufactured in the United States. While not legally available for legitimate medical uses in the United States, rohypnol is widely used for legitimate medical purposes in many countries throughout the world. In response to reports that the incidence of abuse of rohypnol was increasing, the Drug Enforcement Administration instituted the formal rescheduling process for this substance by submitting a formal request on April 11, 1996 to the Food and Drug Administration to conduct an evaluation of the scientific and medical evaluation of this substance. That evaluation is ongoing. In a letter from Health and Human Services Secretary Donna E. Shalala to me on July 24, 1996, Secretary Shalala informed me that the goal of the rescheduling process was to make rohypnol subject to increased penalties for illicit use and trafficking. Since this particular drug has become a leading agent of abuse and the focus of this debate, I agree with Secretary Shalala that it is appropriate to increase the penalties for illegal trafficking in rohypnol. This bill does that. However, I am concerned about the precedent that rescheduling would have on this very useful class of medicines. I fee a more appropriate-- and rapid--method to respond to this crisis is to implement the increased penalties for illegal trafficking in rohypnol without having Congress circumvent the well-established process for rescheduling a substance. As I mentioned previously, the rescheduling process requires a careful scientific and medical evaluation of the substance. This evaluation is completed by the FDA in consultation with HHS' National Institute on Drug Abuse. Congress does not have the resources or expertise to complete such an evaluation, and by considering rescheduling may establish an unintentional precedent with regard to scheduling of controlled substances which we may regret later on. I believe that the Drug-Induced Rape Prevention Act of 1996 provides for a rapid, measured response to the problem that the abuse of rohypnol has presented, without establishing an unintended role for Congress with regard to the scheduling of controlled substances. I urge that this legislation be considered when we reconvene next month. Mr. President, I ask unanimous consent that the text of the bill and a section-by-section analysis be place in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce S. 2040, a bill to prevent the use of controlled substances to facilitate rape. This bill is to strike back at those who would use controlled substances to engage in the most reprehensible of crimes. Joining me in cosponsorship of this legislation is Senator Hutchison. Mr. President, earlier in the year as a member of the congressional task force on national drug policy, I joined in issuing a report, ``Setting the Course: A National Drug Strategy.'' This report noted that every survey of teenage drug use in the past two years indicates not only increasing use of dangerous drugs among teens, but a disturbing change in the attitudes teens have about the dangers of drug use. Two very important surveys have confirmed that teenage drug abuse is on the rise. The first study is the national high school report, Monitoring the Future, which surveys over 50,000 students in some 400 public and private secondary schools. The second study is the annual survey by the Parents' Resource Institute for Drug Education, which surveys nearly 200,000 ninth to twelfth graders. While these studies focused on the use of marijuana, the use of hallucinogens, stimulants, and other drugs are also on the rise. According to reports by the Center on Addiction and Substance Abuse, adolescents who use marijuana are 85 times more likely to move to other dangerous drugs, such as cocaine. As a recent report that we issued from the Judiciary Committee, Losing Ground Against Drugs noted: The implication for public policy is clear. If such increases are allowed to continue for just two more years, America will be at risk of returning to the epidemic drug use of the 1970's. While the overwhelming abuse of drugs by teenagers focuses on illicit drugs, the illegal diversion and misuse of medicines is also a growing problem in our country. During the past few years, there has been increasing abuse of a drug called rohypnol. Rohypnol is not approved for marketing in the United States but it is a legitimate therapeutic agent that is approved for use in several countries to treat sleep disorders. According to a report from the Haight Ashbury Free Clinic, several abuse patterns of rohypnol have evolved in the United States. Rohypnol is being abused by heroin addicts as an enhancing agent for low-quality heroin, as well as in combination with cocaine. In some areas it is referred to as a ``club drug''--where it is used by so called ``recreational'' users who intermittently abuse a variety of substances. However, the most disturbing use of rohypnol is its use to facilitate the rape of women. Reports continue to be made that rohypnol has been illicitly put into the drinks of unsuspecting victims before they are sexually assaulted. I believe that the Federal Government must show that it will not tolerate the use of this drug--or any drug--to facilitate rape. I believe it is necessary and appropriate to establish a new provision that establishes tough penalties for the use of any controlled substance to facilitate rape. Rohypnol abuse was initially reported in Florida and Texas, but its use has now become more widespread. In an effort to stem the illegal flow of rohypnol into the United States, the U.S. Customs Service developed and implemented a ban on the importation of rohypnol into the United States. Unfortunately, the problem continues to grow. Rohypnol is a member of the widely-used class of prescription medications known as benzodiazapines. This class of drugs is used to treat sleep disorders, anxiety disorders and to control seizures, among other purposes. When used for legitimate medical purposes, this class of drugs is vital to the physical and mental health of thousands of Americans. The Controlled Substances Act establishes five schedules of controlled substances, based primarily upon a drug's relative potential for abuse. Drugs listed in schedules I and II are those with the highest potential for abuse, while drugs listed in schedule V are those with the lowest potential for abuse. Rohypnol is currently listed in Schedule IV of the Controlled Substances Act. In addition to rohypnol, more than twenty other benzodiazepine substances are listed as a Schedule IV substance. Rohypnol is not marketed or manufactured in the United States. While not legally available for legitimate medical uses in the United States, rohypnol is widely used for legitimate medical purposes in many countries throughout the world. In response to reports that the incidence of abuse of rohypnol was increasing, the Drug Enforcement Administration instituted the formal rescheduling process for this substance by submitting a formal request on April 11, 1996 to the Food and Drug Administration to conduct an evaluation of the scientific and medical evaluation of this substance. That evaluation is ongoing. In a letter from Health and Human Services Secretary Donna E. Shalala to me on July 24, 1996, Secretary Shalala informed me that the goal of the rescheduling process was to make rohypnol subject to increased penalties for illicit use and trafficking. Since this particular drug has become a leading agent of abuse and the focus of this debate, I agree with Secretary Shalala that it is appropriate to increase the penalties for illegal trafficking in rohypnol. This bill does that. However, I am concerned about the precedent that rescheduling would have on this very useful class of medicines. I fee a more appropriate-- and rapid--method to respond to this crisis is to implement the increased penalties for illegal trafficking in rohypnol without having Congress circumvent the well-established process for rescheduling a substance. As I mentioned previously, the rescheduling process requires a careful scientific and medical evaluation of the substance. This evaluation is completed by the FDA in consultation with HHS' National Institute on Drug Abuse. Congress does not have the resources or expertise to complete such an evaluation, and by considering rescheduling may establish an unintentional precedent with regard to scheduling of controlled substances which we may regret later on. I believe that the Drug-Induced Rape Prevention Act of 1996 provides for a rapid, measured response to the problem that the abuse of rohypnol has presented, without establishing an unintended role for Congress with regard to the scheduling of controlled substances. I urge that this legislation be considered when we reconvene next month. Mr. President, I ask unanimous consent that the text of the bill and a section-by-section analysis be place in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, with respect to the corporate-owned life insurance provision in the conference agreement to the Health Insurance Portability and Accountability Act of 1996, I would like to clarify the definition of a fixed and variable rate of interest as it relates to the deduction of interest on pre-1986 life insurance contracts. It is my understanding that a life insurance contract with an option to elect a variable rate of interest, which has borne the same rate of interest since its date of issuance, is considered a contract with a fixed rate of interest. If the interest rate under this contract is changed to a variable rate as the result of the exercise of an election under the contract, the contract would then be considered a contract with a variable rate of interest.

Mr. HATCH. Mr. President, it has been a long journey to this moment in history, as we prepare to approve the conference agreement on H.R. 3103, the Kassebaum/Kennedy Health Insurance Reform Act of 1996, and send it to the President for his signature. What we thought would be a sprint because the ideas made so much sense turned out to be a marathon. As one of the original cosponsors of this important legislation, I am pleased the impasse which prevented this bill from moving forward has been resolved. After months of delay, the American people will soon realize the benefits of the time and energy that have been devoted in making this legislation a reality. The Republican leadership in the House and Senate are to be commended for their steadfast commitment to reach an agreement with the White House on such contentious issues as medical savings accounts, insurance portability, mental health parity, and advisory opinions. Overall, this legislation embraces many key elements of health care reform that have been pending in Congress for over five years, even before the 1994 health care overhaul proposal by President and Mrs. Clinton. In my opinion, H.R. 3103 is a good bill. It represents meaningful, workable, and targeted health care reform that will provide a significant measure of assistance to millions of Americans. The underlying insurance reforms included in the bill have now been enhanced by additional provisions that strengthen and improve the scope of the legislation. Although much of the controversy over the past several months centered on issues unrelated to the insurance provisions, it is important that we not lose sight on the importance of the insurance reforms. This bill will provide greater assurance to an estimated 25 million Americans that they can carry their health insurance coverage from job to job, without losing that protection, as well as obtain health insurance irregardless of preexisting health problems. These protections are clearly the hallmark of the Kassebaum/Kennedy bill. These protections are important because access to health insurance remains one of the fundamental problems facing Americans in today's health insurance market. The unfortunate fact of today's insurance market is that there is too little protection for individuals and families with significant health problems. This legislation is clearly aimed at correcting that problem. By restricting the use of preexisting limitations or exclusions on individuals, H.R. 3103 will increase access to health coverage as well as provide portability of insurance coverage for those wishing to change jobs. Although these changes have been described as incremental by some, they are significant improvements in the manner in which Americans obtain health insurance. Through the enactment of this bill, Congress is sending a message that the status quo is unacceptable. This bill will help a significant number of people and for that reason alone it is worthy of passage. Aside from the insurance reforms, there are a number of other provisions added in the House and on the Senate floor to the underlying insurance bill. For example, the bill creates a newly coordinated Federal, State and local health care antifraud and abuse program that will dramatically increase the enforcement authority of the Departments of Health and Human Services and Justice. As Chairman of the Senate Judiciary Committee, I have been particularly interested in the development of the antifraud provisions. It is clear from the hearings conducted in the Judiciary Committee as well as other committees in Congress that more effective law enforcement tools are needed to fight health care fraud. The problems have been well-documented by the distinguished Senator from Maine, Senator Cohen, who developed the underlying legislation from which many of the fraud provisions of H.R. 3103 were developed. I strongly support tough and effective measures to address fraud and abuse. But in our efforts to deter, detect and prosecute fraudulent behavior, we need to ensure that these efforts do not penalize innocent behavior or unintentionally bog down the delivery of health care. The practice and delivery of health care is overwhelmingly conducted by honest and well meaning individuals who should not be suspected of wrongdoing merely because they are physicians, hospital administrators or other health care providers. Creating a cloud of suspension over the entire health care community will not solve the fraud problem when only a few are guilty of wrongdoing. We need to ensure that new antifraud and abuse provisions provide clear and unambiguous guidance on what constitutes fraudulent behavior. Equally important is that antifraud provisions avoid penalizing innocent individuals for inadvertent or clearly innocent behavior. I would remind my colleagues that antifraud proposals over the past several years have essentially proposed to expand the scope of existing antifraud and abuse laws applicable to health care providers. A clear case is the application of the antikickback laws which are, at best, complex and confusing and are not easily conveyed in the context of managed care. Overly broad applications of these laws are particularly worrisome. As an example, the legislation creates a new Federal criminal statute under title 18 of the U.S. Code against health care fraud. Fines and imprisonment for up to 10 years can be imposed for violating provisions of the new statute. Within the practice of health care, legitimate disagreements regarding medical judgment and treatment decisions should not be cause for imposing legal penalties. It is critical that the antifraud provisions be carefully crafted to avoid punishing unintentional acts by health professions. Accordingly, I am pleased the conference report contains language I proposed that specifically defines any new Federal health care offense to include both a knowing and willful standard of intent. The addition of willful in this standard is essential to ensure that inadvertent or accidental conduct is not deemed criminal. The standard is now clear that criminal liability will be imposed only on an individual who knows of a legal duty and, intentionally, violates that duty. Without this clarification, legitimate disagreements regarding a physician's medical judgment and treatment decisions could have been the basis for imposing criminal penalties. Another issue which surfaced during consideration of the antifraud provisions concerned the impact on the provision of alternative and complementary health care. As my colleagues know, I have championed the cause of alternative and complementary medicine. I am sensitive to concerns within this community regarding unintended negative implications of the fraud language on the provision and practice of nontraditional and nonmedical forms of health care. I want to make it clear to my friends in the alternative and complementary medicine community that under this bill the practice of complementary, alternative, innovative, experimental or investigational medical or health care itself, will not constitute fraud. I have specifically addressed these concerns in the legislative and conference report language to clarify any misunderstandings or ambiguity arising from the implementation of the fraud provisions. In this regard, I want to thank the National Nutritional Foods Association, the American Chiropractic Association and the American Preventive Medical Association for their input. While it is easy to focus only on the laudable benefits of the insurance provisions in this bill, because they are so important, we must not lose sight of the very significant tax provisions that are also included in this legislation. These provisions will work to make health insurance more affordable, to ease the financial burdens of long-term care, and to allow individuals to use individual retirement account funds for catastrophic health expenses without penalty. Mr. President, I am very pleased that this bill increases the percentage of health insurance costs that can be deducted by the self- employed to 80 percent. This provision takes a huge step toward correcting what has long been a gross inequity. No one has ever been able to defend the policy of allowing corporations to fully deduct health insurance expenses, but allowing the self-employed to deduct only a small portion. At a time when we are trying to encourage the creation of new businesses, especially by those who have been laid off from large corporations over the past few years, this lack of full deductibility has been a real disincentive. Although this bill takes us most of the way there by getting to 80 percent deductibility, I want to note that our job is far from finished in this area. First, 80 percent is not enough. We must find a way to go the rest of the way and allow for full deductibility. Second, under this bill, it takes us 10 years to go from the 35 percent that is deductible under the current law to the 80 percent level that this bill finally provides. I urge my colleagues to not sit back and relax on this issue. I hope that in the next Congress, we can find a way to get to full deductibility and sooner. The long-term care provisions of this bill are also very important, Mr. President. As our population ages, millions of families will find themselves facing the problem of how to pay for needed health care for aged loved ones. Up until now, the Medicaid program has borne the brunt of these expenses in cases where the individual or family did not have the resources to cover the often very significant cost of nursing home care or skilled nursing assistance. It is clear, however, that our Medicaid system will simply not be adequate to cover such expenses as we move into the next century and the public's capacity to pay for these huge expenses are pushed beyond the limit. The bill before us begins to address this problem by making it easier for individuals and families to pay for long-term care insurance, easier for insurance companies to provide such coverage, and more beneficial to employees of companies that provide such insurance as part of an employee benefit package. These changes are key in moving the majority of the responsibility for long-term care expenses from the public sector to families and individuals. Many of these tax provisions are very similar to changes I have long advocated in long-term care legislation. These provisions are, in fact, comparable to the long-term care provisions included in the quality care for life legislation I introduced earlier in this Congress. I believe these provisions will serve to begin to shift public attitude from one largely of government dependence to one of personal responsibility. Private insurance is vital to making this shift, and these provisions will all make it much easier for insurance to be a viable alternative. Mr. President, I also want to comment on a small, but important, provision, that will help thousands of Americans who are hit by high medical expenses. This bill allows for penalty-free withdrawals from individual retirement accounts to pay medical expenses that exceed 7.5 percent of the taxpayer's adjusted gross income. When the IRA concept was first enacted into our tax law, penalties were placed on early withdrawals to discourage any use of the money beside that for which it is mainly intended--to provide funds for retirement. This was wise, Mr. President. However, we also need to recognize that when devastating illness strikes a family, the need for cash is immediate. This provision helps in cases where a family is hard hit with medical expenses but has the means to help pay them in IRA funds. I also commend the provision that allows IRA funds to be used to pay for health insurance premiums in cases of unemployment. This provisions should help many families who might face the ugly choice of dropping health care coverage when the paycheck temporarily stops. Also included in the conference report is a four year pilot project for medical savings accounts, or MSA's. Beginning in 1997, MSA's are available to employees covered under an employ-sponsored high deductible plan of a small employer or self- employed individual. Taxpayers (including the self-employed) will be allowed to make tax-deductible contributions within limits of an MSA. The number of taxpayers benefiting annually from an MSA contribution would be limited to a threshold level of 750,000 taxpayers. I strongly support MSA's. I believe they will provide needed incentives for Americans to become more cost conscious as purchasers of medical services. MSA's will clearly give people more control over their health care dollars with the opportunity to save unspent MSA dollars for future health and long-term care needs. Mr. President, overall this legislation represents an appropriate balance between the role of the Federal Government with the private insurance market in addressing the health-related problems currently facing many of our citizens. However, we must recognize that we are breaking new ground with the enactment of this bill. The level of Federal involvement proposed in H.R. 3103 in the affairs of the historically private marketplace of insurance products does indeed raise concerns. We will not ignore these concerns in the implementation of this new legislation, and we will review carefully the long-term impact of these provisions. Mr. President, I would also like to say to the gentleman from New Mexico, Senator Domenici, that I, too, am disappointed that the conferees could not work out language on mental health. I voted for that amendment, because I strongly believe we need to do more to address the problem of mental health insurance coverage for the millions of Americans who suffer from mental illnesses that are as devastating to individuals and families as physical ones. During our preconference sessions, I worked with my colleagues to see if there were alternatives to parity which could be pursued in this legislation, because I truly believe that we are not doing enough on mental health. One idea I put forward was to direct increased resources to mental health through the Substance Abuse and Mental Health Services Administration. I put this proposal forward in a good-faith effort to increase our federal presence on mental health. I understand the concerns of my colleagues that this would not go far enough when compared to the Domenici amendment, but nevertheless I regret that the bill does not contain any mental health provision. I will continue to work with my colleagues on this issue. Nevertheless, on balance, I am convinced that this bill will serve the interests of the American people who have long sought responsible health insurance reform. Finally, Mr. President, I would be remiss if I did not take this opportunity to recognize the efforts of the distinguished Chairman of the Committee on Labor and Human Resources, Senator Kassebaum, who is to be commended for her leadership and perseverence, in developing this legislation. I can think of no fitting tribute to her than the enactment of this health reform bill. Her dedication, hard work, and common sense have been hallmarks of her career in the U.S. Senate. Let me also thank the ranking minority member, Senator Kennedy, who has also been an instrumental player and leader in the development of this legislation. I urge my colleagues to support the conference report to H.R. 3103.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to describe why the repeal of Internal Revenue Code section 956A, which is included in the Small Business Tax Relief bill, is important to both U.S. businesses and American workers. In his remarks 2 days ago, the distinguished senator from North Dakota insisted on referring to the repeal of 956A as opening a tax loophole. This is simply not true. Rather, what the repeal does is loosen a noose that has been strangling the competitiveness of many of our U.S. businesses. How many of my colleagues would stand up and say, ``Yes, I would like to hamper the competitiveness of U.S. businesses abroad by imposing tax restrictions on them unequal to any restriction imposed on their competitors.'' Or, how many of my colleagues would say that they are in favor of discouraging U.S. firms from increasing employment at home by taking advantage of business opportunities abroad. Yet, in essence, this is the effect of not repealing section 956A. I don't believe there is even one Senator in this Chamber who wants to go home in August and brag about putting U.S. companies at a competitive disadvantage. I don't believe there is even one Senator who wants to go home and brag about eliminating jobs for U.S. workers. Yet, this is exactly what section 956A does. Mr. President, let me briefly discuss the history of section 956A. Until 1993, when President Clinton signed the largest tax increase in the history of this Nation, the U.S. generally did not tax the active income earned by a U.S. corporation's foreign subsidiaries until that income was actually repatriated to the U.S. parent. This tax deferral enabled U.S. companies with foreign affiliates to compete on a reasonably level playing field with foreign competitors. This is because no other industrial nation's tax law forces a parent corporation to pay taxes on income earned by a subsidiary until that money is sent home to the parent. However, in 1993, the Clinton administration proposed and Congress enacted a limitation on this tax deferral. The provision, now known as section 956A, forces the parent corporation to pay tax on a portion of its foreign subsidiary corporation's active income to the extent it has an excessive accumulation of passive assets. Mr. President, this new restriction did not close a tax loophole. Instead, 956A closed doors of opportunity for U.S. business and hindered employment and investment growth. As I mentioned, section 956A has no counterpart in the tax laws of our foreign competitors. Hence, it effectively places an undue burden on U.S.-owned companies abroad--a burden that our competitors do not have. There are some who want us to believe that the enactment of section 956A would discourage U.S. companies from moving jobs overseas. Mr. President, this is just not true. In fact, the provision has resulted in just the opposite effect--it encourages U.S. companies to employ more overseas workers. Let me explain. As I stated before, section 956A subjects excessive passive assets to U.S. tax before profits are repatriated to the United States. This provision has actually created an unintended incentive for companies to invest in hard assets, such as manufacturing facilities, outside the United States. Doing so enables the subsidiary to increase its hard assets and thus lower the ratio of it passive assets to total assets, which effectively lowers the tax. Manufacturing facilities, unlike passive assets, require workers, almost always hired from the host nation. Thus, the perverse effect of section 956A is to provide an incentive for U.S. multinational companies to invest in jobs overseas for non-U.S. workers. Contrary to what some contend, U.S. companies generally do not invest abroad simply to take advantage of lower labor costs. In fact, most foreign investments by U.S. companies are in countries where labor costs are often higher than in the United States. In 1993, two-thirds of the assets and sales of U.S.-controlled foreign corporations were in seven primary locations: Germany, France, Japan, United Kingdom, Netherlands, Canada, and Switzerland. The average annual compensation paid to foreign workers in these countries was 15 percent higher than the average paid to workers in the United States by the parent corporations. U.S. foreign businesses are almost always established in order to better service foreign customers, to have a local presence, to avoid excessive transportation costs, or to develop natural resources in the geographic locations where they are found. In other words, decisions of where to invest are made for solid business reasons--not for tax avoidance. Many foreign countries insist that contracts be made only with local entities. It is also important to note that these U.S. subsidiary corporations seldom take jobs away from the United States, but actually supplement domestic production and increase U.S. jobs. U.S.-owned foreign corporations are large purchasers of exports from their affiliated companies in the United States. According to the U.S. Department of Commerce, 40 percent of U.S. multinational corporations' exports are sold to U.S. affiliates overseas. For every one billion U.S. dollars in manufactured exports, over 14,000 manufacturing jobs are created in the United States. Employment growth between 1987 and 1992 at U.S. plants that started or continued exporting during that time was 17 to 18 percent greater than at comparable plants that did not export. These statistics clearly indicate that expanding U.S. business overseas increases growth back home, including employment growth. We cannot ignore the global economy we are living in by discouraging U.S. companies from expanding to other countries. Repeal of section 956A doesn't benefit just a handful of large corporations, as has been suggested. Small businesses must invest overseas also. In today's world, any business that doesn't recognize the necessity to go global is in jeopardy of losing out to foreign competition. In fact, many small Utah businesses are having great success in exporting and are finding a need to invest outside the U.S. to establish a global presence. Does this mean we are losing jobs in Utah? Hardly. Rather, such international growth has further fueled my State's employment boom. Finally, Mr. President, let me emphasize that repealing 956A will give no special treatment to U.S. businesses with foreign affiliates. In fact, the tax treatment of U.S. businesses after the repeal of 956A will be the same as the tax treatment received by a U.S. individual who holds shares in a company and defers U.S. tax on the earnings of the company until the company actually pays the dividend to the shareholder. Until 1993, our tax law has always taxed the active profits of American-owned companies abroad when those earnings were sent to the U.S. company through dividend, transfer payment, or other means. Let me reiterate that repeal of section 956A does not change this basic concept of the Internal Revenue Code. Rather, it restores the traditional treatment that was changed by the misguided 1993 provision. I am proud to say that I stand for creating employment for American workers. I stand for increasing our exports and developing foreign markets, and I stand for repealing section 956A to remove the strangling provisions it places on U.S. businesses trying to compete on a level playing ground with foreign competitors.

Mr. HATCH

Mr. HATCH. Mr. President, today I am introducing the community protection initiative of 1996. This bill will exempt current and former law enforcement officers from State and local laws prohibiting the carrying of concealed firearms. In so doing, this bill will adopt a clear, uniform rule in place of the various State and local laws that are on the books today. This bill has the support of many law enforcement organizations and individuals, including the Law Enforcement Alliance of America, Fraternal Order of Police, National Association of Police Organizations, National Sheriffs Association, National Troopers Coalition, Southern Police Benevolent Association, National Law Enforcement Council, the Salt Lake City police chief, the Salt Lake County sheriff, and the Utah Highway Patrol Association. This bill will prove to be a useful addition to our laws in several ways. This bill will enhance public safety. It will do so by potentially placing thousands of additional police officers on the streets of America--at no additional cost to the public. Law enforcement officers are highly trained professionals. Their classroom teaching, as well as their experience in the field, are the most valuable weapons that they possess. But all of that skill and experience will be of little benefit for a police officer if he cannot prevent A crime from occurring because he is unable to carry the firearm his community has authorized him to carry as part of his job. This bill puts more police on the street, at no cost to the taxpayer. That result alone is a valuable one. But there is more. The bill will help law enforcement officers protect themselves and their families when they travel interstate. By itself, that is a valuable benefit. Any one police officer may make scores of arrests throughout his career, and an officer may not always remember the face of every suspect that he apprehends. Many criminals, however, remember. They remember the face of the judge, the face of the prosecutor, and, most importantly, the face of the arresting officer. This bill enables police to protect themselves and their families in the face of these long memories. Currently, police officers can protect themselves when they remain within their jurisdictions on-duty. If those jurisdictions permit, officers can carry their firearms off-duty. This bill would allow each qualified police officer to travel out of State without being at risk of criminal assault. A firearm is an important tool in a battle with a criminal, especially an armed one. A firearm in the hands of a trained police officer, when off duty, will make our streets safer. For private citizens, a firearm is best compared to a fire extinguisher, because each one is a piece of emergency, lifesaving equipment. But for police officers, a firearm is a necessary tool of his profession. We expect that police officers will intervene to prevent crimes from occurring. No, we demand that police officers carry out that responsibility. That is why we train them in law enforcement; and that is why we give them a badge; that is why we give them a gun. This bill will ensure that we do not disarm the police just because they have traveled interstate. There are more than 600,000 State and local law enforcement officers in more than 17,000 police agencies. This bill would allow those officers, and many of their retired colleagues, to carry firearms when they travel out of State. That puts each of those officers on the streets in the service of law enforcement in this Nation. To be sure, only some police officers will take advantage of this provision. But we know that there will be some officers who prevent some crimes and who prevent some people from becoming victims. At the same time, this bill achieves those benefits in a careful manner. It does not allow unqualified officer to carry firearms interstate. Rather, it requires current police officers to be in good standing to take advantage of the benefits of this bill. The bill also does not allow all retired police officers to carry firearms. Before a retired police officer can carry a concealed firearm under this bill, the bill requires that the retired officer be authorized by his or her State of residence to carry a concealed firearm within that State. Finally, this bill does not authorize the carrying of firearms on aircraft. I look forward to working with my colleagues on a bipartisan basis in moving this legislation. In the House, Representative Cunningham of California has introduced a similar measure. Together, we can bring about passage of a bill that will protect the public, our Nation's law enforcement officers, and their families.

Mr. HATCH

Mr. HATCH. Mr. President, today I am introducing the community protection initiative of 1996. This bill will exempt current and former law enforcement officers from State and local laws prohibiting the carrying of concealed firearms. In so doing, this bill will adopt a clear, uniform rule in place of the various State and local laws that are on the books today. This bill has the support of many law enforcement organizations and individuals, including the Law Enforcement Alliance of America, Fraternal Order of Police, National Association of Police Organizations, National Sheriffs Association, National Troopers Coalition, Southern Police Benevolent Association, National Law Enforcement Council, the Salt Lake City police chief, the Salt Lake County sheriff, and the Utah Highway Patrol Association. This bill will prove to be a useful addition to our laws in several ways. This bill will enhance public safety. It will do so by potentially placing thousands of additional police officers on the streets of America--at no additional cost to the public. Law enforcement officers are highly trained professionals. Their classroom teaching, as well as their experience in the field, are the most valuable weapons that they possess. But all of that skill and experience will be of little benefit for a police officer if he cannot prevent A crime from occurring because he is unable to carry the firearm his community has authorized him to carry as part of his job. This bill puts more police on the street, at no cost to the taxpayer. That result alone is a valuable one. But there is more. The bill will help law enforcement officers protect themselves and their families when they travel interstate. By itself, that is a valuable benefit. Any one police officer may make scores of arrests throughout his career, and an officer may not always remember the face of every suspect that he apprehends. Many criminals, however, remember. They remember the face of the judge, the face of the prosecutor, and, most importantly, the face of the arresting officer. This bill enables police to protect themselves and their families in the face of these long memories. Currently, police officers can protect themselves when they remain within their jurisdictions on-duty. If those jurisdictions permit, officers can carry their firearms off-duty. This bill would allow each qualified police officer to travel out of State without being at risk of criminal assault. A firearm is an important tool in a battle with a criminal, especially an armed one. A firearm in the hands of a trained police officer, when off duty, will make our streets safer. For private citizens, a firearm is best compared to a fire extinguisher, because each one is a piece of emergency, lifesaving equipment. But for police officers, a firearm is a necessary tool of his profession. We expect that police officers will intervene to prevent crimes from occurring. No, we demand that police officers carry out that responsibility. That is why we train them in law enforcement; and that is why we give them a badge; that is why we give them a gun. This bill will ensure that we do not disarm the police just because they have traveled interstate. There are more than 600,000 State and local law enforcement officers in more than 17,000 police agencies. This bill would allow those officers, and many of their retired colleagues, to carry firearms when they travel out of State. That puts each of those officers on the streets in the service of law enforcement in this Nation. To be sure, only some police officers will take advantage of this provision. But we know that there will be some officers who prevent some crimes and who prevent some people from becoming victims. At the same time, this bill achieves those benefits in a careful manner. It does not allow unqualified officer to carry firearms interstate. Rather, it requires current police officers to be in good standing to take advantage of the benefits of this bill. The bill also does not allow all retired police officers to carry firearms. Before a retired police officer can carry a concealed firearm under this bill, the bill requires that the retired officer be authorized by his or her State of residence to carry a concealed firearm within that State. Finally, this bill does not authorize the carrying of firearms on aircraft. I look forward to working with my colleagues on a bipartisan basis in moving this legislation. In the House, Representative Cunningham of California has introduced a similar measure. Together, we can bring about passage of a bill that will protect the public, our Nation's law enforcement officers, and their families.

Mr. HATCH

Mr. HATCH. Mr. President, today we take the first big step in ending the era of big government. Today, we send the states the authority to design their own programs for the needy. We move one step further away from the one-size-fits-all approach that comes from a Federal bureaucracy far removed from individual state environments and constituencies. This bill completely changes the very nature of welfare from one of endless individual entitlement to one of temporary assistance and personal responsibility. This legislation is the result of a truly bipartisan process. I want to thank my colleagues for their work in crafting a compromise that can be supported by a majority of both parties. I also want to congratulate the President for joining this effort. While we all wondered whether, after vetoing welfare reform twice in the last year, he would sign this measure, I am delighted that he has announced his support for this bill. I commend him for this decision. This is a great victory for Congress, for the President, for the States, for the taxpayers, and, above all, for the needy families of America. Do we know exactly what will happen after this bill is passed? No. No one is blessed with that kind of omniscience. The current system provides an excellent illustration of the uncertainty of the future. The current system was well-intentioned at its inception. No one was deliberately trying to create a cycle of dependency or despair for beneficiaries who much too often found themselves locked into the system. However, the current system has turned out to be just that, destroying the very spirit of those who are receiving benefits. Through hindsight, we can see that the approaches taken in the current system have not, do not, and will not work. It has been a near total failure despite its worthy intentions. We have learned from this experience. We have not crafted this welfare reform proposal out of whole cloth. We did not simply dream it up. We reviewed the findings of academics; we heard hours and hours of testimony; we poured over statistics; and we listened to our constituents. The result is a welfare system built on a new paradigm--a ``can do'' philosophy that must be infused into recipients and administrators alike. In designing a new approach to assisting the needy, we have looked to those programs that are successful in moving people to work and helping them become independent. The States have been moving in this direction and have been designing innovative and successful programs for several years. My own State of Utah is in the third year of a successful demonstration project that has just gone statewide. The Single Parent Employment Demonstration [SPED] has 90 percent of the caseload actively participating in work activities, utilizes the use of education and training to provide basic job skils, and has been successful in moving participants into unsubsidized, private sector jobs. This bill will continue this trend and allow the States to continue to design comprehensive programs to address their unique constituencies, needs, and resources. Mr. President, this bill is not perfect. There are several things included in this bill that I don't agree with. There are many things that aren't in this bill that I think should be there. There are even some things that I think need to be changed. I would particularly like to see an expansion of the use of education and training to provide job skills for long-term employment, changes made in the language regarding existing State waivers, and a broader compromise on Medicaid eligibility to provide a level of administrative relief to the States. However, the core reforms contained in this bill far, far outweigh these concerns. This bill contains block grants to States and gives them the opportunity to design their own systems--systems that will provide not only the wherewithal to transition people into jobs, such as child care, but also systems that have dignity, hope, and independence as the primary goals. Throughout this debate, we heard from many who were concerned about the effects that these reforms could have on native Americans. I am pleased that this conference report retains several provisions addressing these concerns. The most important of these provisions is the native American tribal allocation provision. I would like to thank my colleagues for working with me to address this issue. The tribal allocation provisions in this bill will provide tribal governments the same opportunities and responsibilities as the States to receive direct funding and the flexibility to design their own programs based on the unique geographical and cultural needs of tribal members. This represents a significant shift in thought and Federal policy. Through provisions like these, this legislation reinforces the Federal Government's commitment for Indian self-determination and self- governance. Mr. President, we have heard from the American taxpayers in no uncertain terms that they are tired of paying for people to do nothing. Families who are getting up to work every day and are still struggling to make ends meet are tired of seeing families receiving assistance with virtually no obligation to work for it. This bill changes all that. Under this legislation, people must work for their benefits. No longer will beneficiaries be able to continue to receive benefits for nothing. Families receiving assistance will now be given the resources and opportunity to receive job training and education and to move into work and independence. The legislation provides child care and other support services to these families. Mr. President, we have heard much during this debate about the children and about how this bill is bad for children. This bill is not bad for children. If there is a program that has been cruel to children, it is the current system. How can anyone say that a program that traps our families in a hopeless cycle of dependency is good for and helps children? The current system may throw money at the problem of poverty, but it does not provide a solution. This bill provides a solution, a way out of the dependency cycle. This bill gives needy children back the things that money can't buy-- hope, dignity, self esteem, and a way out of long-term dependency. The best way we can help needy children in the long run is to give their parents the skills and resources--and, yes, motivation--to enter and be successful in the labor market. It can be done. Many have done it. Many more can be successful under the new system of assistance and incentives incorporated in this bill. Mr. President, this bill is not the end of the welfare reform debate. Congress will continue to review and reform programs for the needy of this country. The reforms contained in this bill will continue to be monitored and evaluated. We can even see some technical corrections that could be made in the near future. I assure my colleagues and the American people that the passage of this legislation does not signal the end of congressional interest in the welfare programs. Passing this legislation is only the first, most important step in a long ongoing process. Not only is this bill only the first step in reforming the welfare system, it is also the first step in tackling the seemingly insurmountable problem of ever-growing entitlement programs and balancing the Federal budget. This is not a plateau but rather a ledge on the way to the top of the mountain. Congress must continue to look at other entitlement programs for the needy. We must look at the Medicaid Program, at Medicare, at programs for the disabled, and yes, even Social Security. Without reforming these programs, this country will find itself digging itself deeper and deeper into a black hole with no way to get itself out. But, more importantly, our citizens who have come to rely on these programs will wake up one day to find that these programs have met with fiscal disaster and are no longer viable. Just as important as the fiscal aspect of reforming these programs is the evaluation of the role and values of the Federal Government. We must reform the very nature of Federal programs from one of dependency to one of independence and transition. I encourage my colleagues to continue this fight. We must not stop here at the first victory over big government, but rather continue the process of reviewing the role of the Federal Government and of reforming those programs that are holding us back on the way to a prosperous and secure 21st century.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to introduce the Carjacking Correction Act of 1996. This bill adds an important clarification to the Federal carjacking statute, which is to provide that a rape committed during a carjacking should be considered a serious bodily injury. I am pleased to be joined in this effort by the ranking member of the Judiciary Committee, Senator Biden. He has long been a leader in addressing the threat of violence against women, and our partnership in enacting the Violence Against Women Act is evidence of strong bipartisan outrage at every incident of assault or domestic violence. This correction to the law is necessitated by the fact that at least one court has held that under the Federal carjacking statute, rape would not constitute a serious bodily injury. Few crimes are as brutal, vicious, and harmful to the victim than rape. Yet, under this interpretation, the sentencing enhancement for such injury may not be applied to a carjacker who brutally rapes his victim. In my view, Congress should act now to clarify the law in this regard. The bill we introduce today would do this by specifically including rape as serious bodily injury under the statute. I want to thank Representative John Conyers, the ranking member of the House Judiciary Committee, who brought this matter to my attention and is leading the effort in the House for passage of this legislation. I urge my colleagues to support swift passage of this bill.