Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I was supposed to be accorded 15 minutes for my remarks. I have to make these remarks this morning. I appreciate if it could be extended. I was on the list. Could I follow the distinguished Senator from Mississippi?

Mr. HATCH. Will the Senator yield?

Mr. HATCH. Could it be in this order: the distinguished Senator from Mississippi, then the Senator from Utah, then the Senator from North Dakota?

Mr. HATCH

Mr. HATCH. Mr. President, I wish to respond to some of the extraordinary remarks President Clinton made during the recent congressional recess on crime and judicial appointments. Let me note, again, that there is simply no substitute, as a practical matter, for the sound exercise of Presidential judgment in nominating persons to lifetime Federal judgeships. I find President Clinton's remarks on April 2--which have been echoed by Vice President Gore and by White House aides--concerning the administration's record on judges to be a remarkable effort to dodge the consequences of his own judicial selections and to deflect the attention of the American people from these selections. I welcome the opportunity to set the record straight and to dispel the administration's myths they are attempting to weave to protect their judges and themselves. myth no. 1 The President said, regarding criticism of his judicial selections, that this side is ``sort of embarrassed'' by our crime record. Vice President Gore repeated this assertion before a group of newspaper editors, and Jack Quinn, the White House counsel, echoed it in yesterday's USA Today. This simply is not true, no matter how many times the President repeats himself. And this from a President AWOL-- absent without leadership--in the war on drugs. He mentioned the Brady bill, the so-called assault weapon ban pertaining to 19 firearms, the 100,000 police he keeps talking about, and the 1994 crime bill. I will examine each in turn. It is the swift apprehension, trial, and certain punishment of criminals that is our best crime prevention mechanism, not the gun control measures the President mentions. Hard-nosed judges, tough prosecution policies, and adequate prison space will do more to control crime than these measures. I might add that it is particularly ironic to hear the President's comment this month. This side of the aisle has just sent the President the product of over a decade of Republican efforts to curb endless, frivolous death row appeals. The bill also places prohibitions on terrorist fundraising; contains provisions on terrorist and criminal alien removal and exclusion; strengthens the laws pertaining to nuclear, biological, and chemical weapons; authorizes $1 billion over 4 years for the FBI, the Drug Enforcement Agency, the INS, U.S. attorneys, the Customs Service, and other law enforcement agencies; and a number of other tough provisions. Although I expect the President to sign the antiterrorism bill today, he worked against its key restrictions on the abuse of the writ of habeas corpus. He even sent his former White House Counsel, Abner Mikva, to lobby on the Hill to dilute these provisions, which will provide for the swifter execution of death row murderers. Meanwhile, his Solicitor General, Drew Days, has failed to appeal decisions, such as the case of United States versus Cheely, that may hamper efforts to impose the death penalty on terrorists such as the unabomber in California. During a November hearing chaired by myself and my good friend Senator Thompson, the Judiciary Committee learned that the Clinton administration's Solicitor General generally has ceased the efforts of the Reagan and Bush administration to vigorously defend the death penalty and tough criminal laws. Instead, the Clinton administration's Solicitor General has refused to appeal soft-on-crime decisions to the Supreme Court, and he even has argued before the Court to narrow Federal child pornography laws. The President talks about 100,000 new police officers. His plan will not add 100,000 police officers to the rolls of our law enforcement agencies. The 1994 crime bill? When it left the Senate, it was a reasonably tough bill, not perfect, but a solid contribution to the swift apprehension of criminals and tough, certain punishment. By the time the other body and the Clinton administration got through with it, it was softened and loaded with billions and billions of dollars of wasteful pork--old-fashioned Great Society social spending boondoggles. This is why some of us opposed the bill. Meanwhile, the President abandoned the bully pulpit in the fight against drugs. In 1993, he slashed the drug czar's office. He proposed significant drug enforcement personnel cuts to the Drug Enforcement Agency, the FBI, the INS, the Customs Service, and the Coast Guard. President Clinton has cut America's ability to interdict drug shipments in the transit zone. Through the 1980's and early 1990's, the United States experienced dramatic and unprecedented reductions in casual drug use. But since 1992 drug use among young people has shot back up. Myth No. 2 According to the Clinton administration, there are decisions by Reagan and Bush judges that favor criminals. That is no doubt the case. I do not agree with every decision made by a Republican-appointed judge, nor do I disagree with every decision made by a Democratic- appointed judge. But, on the whole, Republican appointed judges are going to be tougher on crime. And the American people will never see a Republican President appoint a Rosemary Barkett or a Lee Sarokin or a Martha Daughtrey to the Federal appellate bench. Presidents Reagan and Bush appointed 573 judges to the Federal courts, and some of them have served for more than a decade. They have thousands of decisions they have written, and some of these no doubt will find in favor of a criminal defendant, and sometimes, of course, it is the case that the police or prosecutors have stepped over the line. President Clinton has appointed 185 judges so far to the Federal bench, and many of them have served for only 2 years. Furthermore, several of these judges consistently have issued decisions that are soft on crime--not just because of their result, but because of their reasoning. That is why I take such care to describe the facts and reasoning of these decisions, because once the American people learn what these activist judges have written, it is clear that they display a tolerant attitude toward crime and drugs. myth no. 3 The Clinton administration alleges that I and other Republicans have focused on only the same dozen criminal cases. They find references to these cases meaningless, because they do not accurately represent the large number of cases decided correctly. This answer is a red herring at best. It ignores the obvious fact that some decisions by some courts are more important than others. Decisions by the Supreme Court are far more important than hundreds of decisions by district court judges, because it is the decision of the High Court that binds all others. Perhaps the most important judges are those who sit upon the 13 Federal courts of appeals, because these courts effectively exercise the final say on most of the cases brought in the Federal courts. President Clinton has appointed 30 judges of the 175 judges who sit on the appellate courts. Most of these judges have been on the bench 2 years of less. But in those 2 years, more than half of those Clinton judges--at least 17 of the 30--have issued or joined activist opinions that have been sympathetic to criminal defendants at the expense of legitimate law enforcement interests, or that have sought to substitute their policy preferences for those of the people as expressed in written law. Judges Sarokin, Baird, and Daughtrey are only the most egregious examples, because their crystal clear track records reflected their activist bent. But take, for example, Judges Judith Rogers and David Tatel, who have voted with the liberal wing of the D.C. Circuit--probably the second most powerful court in the land--in every important en banc case. In particular, both judges dissented in Action for Children's Television v. F.C.C. [58 F.3d 654 (CADC 1995) (en banc)], in which the majority-- all Reagan and Bush appointees--held that the Government could restrict indecent broadcasts on television during certain hours. Judges Rogers and Tatel joined two Carter judges in arguing that the Government was somehow violating the first amendment. This is activism of the worst sort, and, as the distinguished majority leader pointed out yesterday, at odds with the President's posturing on the V-chip legislation. Or take, for example, the performance of Judge Martha Daughtrey of the sixth circuit. As I recall it, Vice President Gore was a strong supporter of then Tennessee State Supreme Court Justice Martha Daughtrey when she was nominated to the Court of Appeals for the Sixth Circuit. We had a rollcall vote in the Judiciary Committee on Judge Daughtrey, where I voted against her. I believed she was insufficiently tough on crime. Among the concerns I expressed, when she was a member of an intermediate State court, ``she voted frequently, often in dissent, to reduce prison sentences for convicted criminals or to eliminate them entirely in favor of mere probation.'' My concerns about Judge Daughtrey have been realized in certain respects. In United States v. Garnier [28 F.3d 1214 (CA6 1994)], police in Johnson City, TN, stopped a car for making a left turn without signaling and for erratic driving. The police believed that the driver might have been under the influence. The traffic infractions alone provided grounds to stop the car. A field sobriety test of the driver was negative. But, during the stop, police noticed that a passenger reached several times into a bag on the floorboard of the car. Reasonably concerned for their safety, police asked the passenger to exit the vehicle and asked to look in the bag. Passenger Rudolph Garnier consented, but nothing was found. When police frisked Garnier for weapons, they found a cellular phone, a pocket beeper, and two rolls of cash totaling about $2,100. Police then asked if they could search the trunk. Both the driver and Garnier consented. The police found a shopping bag belonging to Garnier that contained a baggie with a large amount of crack cocaine. Here, we had erratic driving early in the morning, motions toward a bag, large amounts of cash, a cellular phone, and beeper. Law enforcement officers well know that drug dealers often carry large amounts of cash and use cellular phones and beepers to set up sales. I think most people would find the search reasonable, especially since it came after the voluntary consent of the driver and passenger. Judge James Ryan of the sixth circuit, appointed by President Reagan, would also agree. When this case came up for appeal, he voted to uphold the legality of the police search. He wrote, These items provided the officer with sufficient articulable suspicion to extend the purpose and scope of the stop. No competent police officer in America, in 1993, would fail to suspect, reasonably, that these items suggested that narcotics might well be present somewhere in the vehicle. Unfortunately for law abiding citizens, Judge Ryan's opinion was a dissent. The majority opinion, written by Judge Daughtrey, and joined by Judge Damon Keith, a Carter appointee, threw the evidence out of the case. They held that unless police had found a weapon on Garnier, police had no right to ask to search the trunk. Frankly, Judge Daughtrey created this rule out of thin air. The fourth amendment, which Judge Daughtrey did not even quote in her opinion, prohibits only ``unreasonable searches and seizures.'' There is no per se rule that a weapon must be found before an officer can even ask to search further. He only asked for permission to search, it was not a coercive search. And, in fact, the defendant gave permission. Think about it. In Judge Daughtrey's world, police are not even allowed to ask for permission to search a vehicle unless certain predicates are found to have occurred. Unfortunately, the citizens of Michigan, Ohio, Tennessee, and Kentucky are going to have to live with Judge Daughtrey long after President Clinton has left office. I will mention one more case involving Judge Daughtrey. In United States versus Long, customs inspectors discovered child pornography videos mailed from overseas to defendant's address. Police obtained a warrant to search the defendant's residence and found 19 magazines, books, and drugs. Judge Milburn, a Reagan appointee, and senior Judge Weis, a Nixon appointee, upheld the search. Judge Daughtrey dissented on the ground that there was no probable cause to search for additional pornographic material at the defendant's home. She flatly ignored a law enforcement officer's unrebutted affidavit, who said that based on his experience and from experts in the field that it was likely that more examples of child pornography would be found. These judges are typical of more than half of the Clinton appellate judges. These judges sit on high above the district court judges who make the hundreds and thousands of usually uncontroversial, run-of-the- mill rulings that come up in a trial. These appellate judges make rulings on issues of law that will extend from the case before them to bind the other judges in that circuit on every similar case. The White House has cited decisions by Reagan-Bush judges as being soft on crime, but these decisions are almost exclusively at the trial level and seem to be an aberration for the particular judge. By contrast, I have focused attention previously on the important appellate decisions, and I have focused on particular judges rather than particular aberrational cases. It is clear that President Clinton has put on the bench particular individual judges who are continually activist. To be sure, there are 13 Clinton appellate judges who have yet to issue activist decisions. But many of them have been on the bench for only a few months, and have yet to issue any significant opinions. And, quite honestly, I have not yet researched all of the decisions of all of these judges. who knows what I will find when I have more time to read these other decisions. myth no. 4 The Clinton administration maintains that it has appointed only moderate, highly qualified judges because its nominees have received better ratings from the American Bar Association than those received by judges appointed by Republican Presidents. This is truly unconvincing, because the ABA itself is no longer just an impartial trade association; over time it has been transformed into an ideological advocacy group. The ABA has taken positions on some of the most divisive issues of our day, such as abortion, and it has vigorously lobbied on Capitol Hill against many of the sensible legislation and reforms that we, in the 104th Congress, have pursued. It has lobbied against the flag desecration amendment, against mandatory minimum sentences, against changes in the exclusionary rule, and against habeas corpus reform. It has lobbied for proracial preference and quota legislation and against the 104th Congress' efforts to end them. I question whether an ideological organization such as the ABA can be trusted to play an impartial role in any governmental process, such as judicial selection. It is my hope that the ABA can play an impartial role. Only the future and the ABA's willingness to depoliticize itself, will tell. myth no. 5 The Clinton administration believes that it is hypocritical for Republicans in the Senate to criticize the Clinton judiciary, because we only voted against confirming a handful of the nominees. To be sure, sometimes we cannot predict how a nominee will act. In those cases where we can, in good faith, predict how a nominee will act, we have opposed the nomination, as in the cases of Judges Barkett, Sarokin, and Daughtrey. But my main response is to remind the President of first constitutional principles. The Senate's job is only to advise and consent to those individuals nominated by the President. When Presidents Reagan and Bush lived with a Democratic Senate, we, Republicans, argued that the Senate owed some discretion to the President. We have remained consistent in that position even under a Democratic President. As Alexander Hamilton explained in the Federalist No. 66: It will be the office of the president to nominate, and with the advice and consent of the senate to appoint. There will of course be no exertion of choice on the part of the senate. They may defeat one choice of the executive, and oblige him to make another; but they cannot themselves choose--they can only ratify or reject the choice of the president. The words of our Founding Fathers clearly explain why this election is so important. As a practical and as a constitutional matter, the Senate gives every President some deference in confirming judicial candidates nominated by the President. It is the President's power to choose Federal judges, and his alone. A Republican President would not nominate the same judges that a Democrat would, and vice versa. Thus, the American people should keep in mind that when they elect a President, they elect his judges too--and not just for 4 years, but for life. There simply is no substitute for the power to nominate Federal judges. Finally, I would like to say this: We are not going to treat the Clinton judges the way our judges were treated in the Reagan and Bush administrations. We have treated them fairly. Yes, I would not have appointed very many of those judges. Neither would any other Republican. Neither will Senator Dole when he becomes President. But the fact of the matter is President Clinton was elected. He is our President. He has a right to choose these judges, and we have an obligation to support those judges unless we can show some very valid constitutional reason or other reason why we should not. As a general rule, we follow that rule and we do it even though we may not agree with these particular selections. But that does not negate the fact that in retrospect as you look over the record these judges are more liberal. They are deciding cases in a more liberal fashion. They are deciding cases in an activist fashion. They are deciding cases that are soft on crime. And I have to say this is one of the big issues of our time. Are we going to continue to put up with this? Are we going to start realizing that these are important issues? And that is not to say that there are not Republican judges who make mistakes too. But these are more mistakes. These involve philosophy of judging that literally should not be a philosophy of judging. Judges are not elected to these positions. Judges are appointed for life and confirmed for life. They should be interpreting the laws made by those elected to make them, and they should not be making laws as legislators from the bench. Unfortunately, that is what we are getting today. Mr. President, I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce the Federal Gang Violence Act. I am pleased to be joined in this important effort by Senator Feinstein, as well as by Senators Kerry, Harkin, Reid, and D'Amato. Gang violence in many of our communities is reaching frightening levels. Recently, Asipeli Mohi, a 17-year-old Utahn, was tried and convicted of the gang-related beating and shooting death of another teenager, Aaron Chapman. Why was Aaron Chapman murdered? He was wearing red, apparently the color of a rival gang. Ironically, Mr. Chapman was on his way home from attending an antigang benefit concert when he was killed. Before committing this murder, the killer had racked up a record of 5 felonies and 15 misdemeanors in juvenile court. Sadly, this example of senseless gang violence is not an isolated incident in my State or elsewhere. It is a scene replayed daily with disturbing frequency. Gang violence is now common even in places where this would have been unthinkable several years ago. Indeed, many people find it hard to believe that Salt Lake City or Ogden could have such a problem--gangs, they think, are a problem in cities like New York, Chicago, and Los Angeles, but not in our smaller cities. However, reality is much grimmer. Since 1992, gang activity in Salt Lake City has increased tremendously. For instance, the number of identified gangs has increased 55 percent, from 185 to 288, and the number of gang members has increased 115 percent, from 1,438 to 3,104. The number of gang-related crimes has increased a staggering 388 percent, from 1,741 in 1992 to 8,496 in 1995. In 1995, 174 of these involved drive-by shootings, and in the first quarter of 1996 alone, there were 64 gang-related drive-by shootings. Our problem is severe. Moreover, there is a significant role the Federal Government can play in fighting this battle. I am not one to advocate the unbridled extension of Federal jurisdiction. Indeed, I often think that we have federalized too many crimes. However, in the case of criminal street gangs, which increasingly are moving interstate to commit crimes, there is a very proper role for the Federal Government to play. This bill will strengthen the coordinated, cooperative response of Federal, State, and local law enforcement to criminal street gangs by providing more flexibility to the Federal partners in this effort. Among the important provisions of this bill: This legislation increases the ability of the Federal Government to prosecute criminal street gangs that operate interstate or commit Federal or State gang related crimes, by updating the criminal gang and Travel Act provisions of the Federal criminal code. Under our bill, these laws will cover criminal activities typically engaged in by gangs. Our bill adds a 1- to 10-year sentence for the recruitment of persons into a gang. Importantly, there are even tougher penalties for recruiting a minor into a gang, including a 4-year mandatory minimum sentence. The bill adds the use of a minor in a crime to the list of offenses for which a person can be prosecuted under the Federal racketeering laws, known as RICO. It enhances the penalties for transferring a handgun to a minor, knowing that it will be used in a crime of violence; and adds a new Federal penalty for the use of body armor in the commission of a Federal crime. Finally, the legislation we introduce today adds serious juvenile drug offenses to the list of predicates under the Federal Armed Career Criminal Act, and authorizes $20 million over 5 years to hire Federal prosecutors to crack down on criminal gangs. Mr. President, this legislation is not a panacea for our youth violence crisis. But it is a large and critical step in addressing this issue. I look forward to working with my colleagues on this bill, and urge their support. Mr. President, I ask unanimous consent that the bill and a section analysis be printed in the Record.

Mr. HATCH

Mr. HATCH. If my colleague would yield for a moment, I would like to take this opportunity to discuss some concerns I have with the section which pertains to establishment of a new health care fraud and abuse data collection program.

Mr. HATCH. I would be glad to. I have concerns in four specific areas. First of all, would the Senator agree that the mere practice of unconventional or non-standard therapies would not fall within the definition of fraud? I am not asking you to amend the bill here, but rather to give me your assurances and the implementing agencies your guidance that such is the case.

Mr. HATCH. Thank you. My next concern relates to creation of the health care fraud and abuse data collection program. As you know, some people are concerned about the very establishment at the Federal level of this new program. I understand those concerns, but I also am very sympathetic to my colleague's argument that this would be a strong weapon in our Federal arsenal to fight the fraud and abuse which are costing our health care system so many billions of dollars each year and robbing us of valuable resources which would be better used for patient care. The specific concern I want to raise now is that the program not duplicate existing data bases which already collect information about credentialing, licensing, and malpractice violations against providers. Is that the Senator's intent?

Mr. HATCH. I thank Senator Cohen very much for his work in this area, and specifically for his efforts to clarify the bill with respect to the treatment of alternative medical providers. I think that his changes have improved the bill greatly. I appreciate his efforts in this regard.

Mr. HATCH. The last issue I wish to raise is with respect to a data base requirement of reporting providers, suppliers, and licensed health care practitioners who are excluded from participation in Federal or State health care programs. This is my concern. Increasingly, managed care organizations are excluding providers from participation solely because of economic concerns, not because of any wrong-doing or program violations. For example, a physician could be excluded from a managed care organization certified by the State to care for the Medicaid population solely because that provider may have ordered more services than the managed care plan allows. If a provider were excluded from participation in such a plan because of such ``economic decredentialing,'' could that provider be reported to the data base?

Mr. HATCH. Mr. President, I rise in strong support of the Health Insurance Reform Act, S. 1028. This important legislation represents a significant and reasonable step in extending health insurance coverage to a larger segment of the American population. I am proud to serve as an original cosponsor of this bill and would like to take this opportunity to commend the distinguished chairman and ranking minority member of the Committee on Labor and Human Resources, Senator Kassebaum and Senator Kennedy, for the outstanding contribution they have made in helping to provide literally millions of Americans with peace of mind that they will not lose their health coverage. As my colleagues are aware, insurance market reform is a bipartisan issue and it is something we have been working toward for many years. I am thinking back to the Bentsen-Durenberger bill which many of us cosponsored 4 years ago. Indeed, as most of my colleagues know, the Senate and House have spent considerable time and energy over the past 5 years debating various proposals designed to address problems with our Nation's health care system overall. Perhaps no other issue in recent years has captured the attention and concern of the American people than the issue of health care reform and the role of the Federal Government in shaping that reform. But I submit that today is not the time to debate measures of such tremendous scope. Unlike the President's approach, S. 1028 is targeted and narrowly focused reform aimed at assisting nearly 25 million Americans in obtaining health insurance coverage. Most of us in the Senate recall the innumerable hours spent considering President Clinton's legislation that was ultimately rejected by the American people and by the Congress. One of the lessons we learned from that endeavor was the need to provide for greater access to health insurance than what is currently available. And access to health insurance is unquestionably one of the fundamental problems facing Americans today. The current health insurance market provides too little protection for individuals and families with significant health problems and makes it too difficult for employers--particularly small employers--to obtain coverage for their employees. The health insurance reform bill is specifically designed to address this problem. It will reduce many of the current barriers to obtaining health coverage by making it easier for people who change jobs or lose their jobs to maintain adequate coverage, and by providing increased purchasing power to small businesses and individuals. The bill will not only increase access to health care coverage, but will also provide portability of insurance coverage and increase the purchasing power of individual and small employers who wish to seek to purchase insurance. Specifically, the bill restricts the use of preexisting condition limitations by insurance carriers. Some insurers today impose preexisting condition limitations or exclusions on individuals when they first become covered by an insurer. These exclusions may limit coverage of a medical condition for a certain period or longer or may exclude coverage of a medical condition--forever. Under the provisions of S. 1028, insurers, HMO's, and self-insured firms would be limited in the ability to use preexisting condition limitations to no more than 12 months after the enrollment date. In addition, benefit limits or exclusions could not be imposed for newborns, newly adopted children, children newly placed for adoption, or for benefits for pregnancy. Another important component of this bill is the provision regarding the guaranteed issue of health coverage benefits. Under this provision, an insurer or health plan is required to cover any group or individual who applies, without regard to health status or claims experience. The bill would require all insurers who offer group coverage to accept coverage for all groups that apply. Insurers would be required to offer individual coverage to all individuals moving from group coverage to individual coverage as well. However, to be eligible for this guarantee, the individual must satisfy the following four criteria: First, the individual must have been covered under one or more group health plans for at least the past 18 months; Second, the individual must not be eligible for group health coverage, or, if eligible for continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, or COBRA, or a similar State program, then they must have elected, and exhausted that coverage; Third, the individual must apply for individual coverage not more than 30 days after the last day of coverage under the group plans, or the termination date of COBRA benefits; and Fourth, the individual must not have lost group coverage due to nonpayment of premiums or fraud. Accordingly, in order to be eligible for insurance coverage in the individual market, we have incorporated important benchmarks to foster individual responsibility and accountability in the purchasing or insurance plans. We are all aware that this bill has engendered considerable debate on how it would impact existing premiums. The American Academy of Actuaries has studied this issue in great detail and estimates that people who are newly eligible for individual coverage would pay an average of two to three times the standard-risk premium rate, unless States restrict premiums. The Academy further states that S. 1028 will have no effect on individual insurance premiums for those currently purchasing coverage in the vast majority of States. In States that restrict premiums, S. 1028 would lead to individual market premium increases in the range of 2 to 5 percent, spread out over a 3-year period. Thus, I believe that fears the bill will lead to large increases in premiums are unwarranted. However, I recognize those concerns, and I will be monitoring this situation closely. Another important provision in this legislation addresses insurance portability. During our consideration of health care reform, it was clear that the use of preexisting condition provisions in insurance plans has contributed to a problem referred to as ``job lock''. In effect, employees are locked into their current jobs because changing jobs might subject them to periods without health insurance coverage because of a preexisting health condition. For an employee with a medical condition, or a dependent with a medical condition, loss of coverage during a limitation period, or worse, exclusion of coverage of the condition forever could mean significant out-of-pocket health care expenditures. As a result, guaranteed issue and limits on the use of preexisting condition provisions by insurers provide needed portability of coverage for American workers. It is also important to note that the legislation provides specific guidance with respect to State flexibility in compliance with this new law. Federal provisions for group to individual portability only become effective if States do not have programs meeting Federal requirements for access. S. 1028 will provide for state flexibility for compliance with Federal provisions. State mechanisms could include guaranteed issue or open enrollment programs by one or more plans, a high risk pool, or mandatory conversion policies. In my State of Utah, we have already enacted many of these reforms. The legislation would permit a waiver from Federal law if a State could demonstrate that its law achieved the objectives of affordable individual market portability and renewability. And finally, S. 1028 promotes group purchasing by small businesses by assisting employers and individuals in forming private, voluntary coalitions to purchase health insurance and negotiate with providers and health plans. These coalitions will provide small employers and individuals with the kind of clout in the marketplace currently enjoyed by large employers. It's important to note what this bill does not contain. S. 1028 does not impose new, expensive regulatory requirements on individuals, employers or States. S. 1028 does not create new Federal bureaucracies or agencies. S. 1028 does not contain any new taxes, spending, or price controls. S. 1028 does not require employes to pay for health insurance coverage. And, S. 1028 contains no unfunded mandates on State, local, or Indian tribal governments. In effect, this bill contains none of the onerous provisions contained in the ill-fated Clinton health care reform bill. Mr. President, I will state in all candor that initially I had reservations about supporting this legislation. As a general rule, I believe the Federal Government should not intervene in areas where consumer choice and natural marketplace conditions determine the level and costs of products and services. And, indeed, in the past I have supported what I believe were true market-based reform proposals in the health care area. However, the problem of access to health insurance has long been a problem to millions of Americans. This problem remains, and it will continue to remain until appropriate Federal action is taken. Over the course of the past year, we have worked to develop and fine- tune the provisions embodied in S. 1028. Most of these modifications were developed to more clearly reflect the intent of the bill. These revisions were principally designed to provide more certainty to States and insurers as well as to respond to concerns that the Secretary of the Department of Health and Human Services was given too much discretion over alternative State programs. I am pleased that the manager's amendment deals with concerns expressed to me from constituents in Utah over the need to revise the bill's provisions regarding conflict of interest language as it applies to purchasing cooperatives. And, I would like to thank Senator Kassebaum's cooperation in resolving these issues. This legislation will now permit insurers, agents, and brokers to serve on purchasing cooperative boards or be employed by a cooperative as long as they do not personally benefit from the sale of services or products to that cooperative. I believe we have come as close as possible in this present political environment in developing a viable measure that will appropriately address the problem of access to health insurance for millions of Americans. The General Accounting Office estimates that passage of S. 1028 will help at least 25 million Americans each year. According to the GAO, an estimated 43 million Americans or 18.7 percent of the nonelderly population were without health insurance coverage for some period of time in 1995. This bill will truly help people, and I believe it deserves our strong support. It is clear that insurance market reform is one area which enjoys wide bipartisan support in both houses of Congress. The fact that the bill currently has 65 cosponsors and was reported unanimously by the Labor and Human Resources Committee serves as a testimonial to its strong bipartisan support in the Senate. It is clear that this important piece of legislation with its strong bipartisan support has the potential to be signed into law by the President as he indicated in his State of the Union Address in January. I commend Senators Kassebaum and Kennedy, and all the cosponsors, and hope that we can move this key legislation forward today.

Mr. HATCH. I appreciate my colleague's actions to accommodate my concerns here. Turning to another concern I have with respect to reporting action on licensing and certification of health care providers, suppliers and licensed health care practitioners, I understand that the Senator intends that the actions to be reported are final actions, after completion of due process. Is my understanding correct?

Mr. HATCH. As you may be aware, the alternative medicine community has expressed concerns about this provision. I have received communications from, for example, the American Preventive Medical Association and the National Nutritional Foods Association. In general their concerns--which I share--focus on the potential abuse of the fraud provisions we are passing today. I am sure my colleague is aware, for I know he shares my strong support for alternative medicine, that providers of alternative medical treatments sometimes find themselves in the cross hairs of the more traditional medical establishment. Personally, I believe that both alternative and traditional medicine are important and that both can benefit patients. But, this cooperative coexistence has not been fully realized it seems. While we are all supportive of strong efforts to weed out health care fraud and abuse, I hope the Senator from Maine will agree that we do not want to create an opportunity for those who might want to eliminate or discourage such alternative treatments by threatening fraud actions under the new language we are considering today.

Mr. HATCH

Mr. HATCH. I am correct.

Mr. HATCH. Mr. President, I understand the pending business is the Brown amendment. It is my understanding that he will make his arguments and then withdraw the amendment; am I incorrect on that?

Mr. HATCH

Mr. HATCH. Will the Senator yield for a unanimous consent request?

Mr. HATCH

Mr. HATCH. Mr. President, although I understand that the Senator from Colorado plans to withdraw his amendment, I want to take this opportunity to express my opposition to both the Brown/Pryor/Chafee amendment and the idea that it should be included as part of the Kassebaum-Kennedy health insurance reform measure. I said it on December 7, and I say it today: ``Here we go again.'' Four months ago, we considered the Pryor language in this chamber. That time, it was an amendment to the partial birth abortion ban bill the President just vetoed. We agreed then, by a vote of this body, that the Judiciary Committee should hold hearings on the issue. On December 13, I sent a letter to Senators Pryor, Brown, and Chafee, and I made a commitment to hold a hearing on February 27 and a markup by the end of March. In fact, the committee did hold the hearing on February 27, as I promised. I agreed to hold a markup the week of March 25, but had to delay that because of lengthy committee consideration of the immigration bills. I rescheduled the markup at the first opportunity. In fact, it was to have been today, but as my colleague may have heard, we did not get a quorum. I still intend to press forward expeditiously for consideration of this issue in the committee. It will be on the agenda for the next markup and that is my commitment. I find it ironic that proponents of this amendment are using the same timetable as I. There is no disagreement here. The process is moving forward. In sum, I have lived up to my word. As a matter of fact, I have bent over backwards to accommodate the interests of this body in a full and fair examination of the issue. We had 10 witnesses at the February 27 hearing, 5 on each side. It was a good session, one during which I believe we all learned a lot. I plan to go ahead with the markup. We will try to work out a resolution. I hope we will be able to. I don't think that the Brown amendment today meets that test. The GATT/pharmaceutical patent issue is unquestionably one of the most complicated we have seen, as it involves the confluence of patent law, trade policy and food and drug law and regulations. Its resolution has potentially enormous consequences, both on the future of biomedical research in this country and on the ability of consumers to have access to the most safe, effective, and low cost drugs possible. The proponents of this amendment argued today, as they have in the past, that this is a case of Congress making a simple mistake and that now we should act to fix this mistake by adopting this technical mistake. This is the type of argument that is often made when this body acts through unanimous consent. I wonder how many times we have debated a purported technical corrections bill for 3 hours--as we did on December 7--then split almost down the middle on a 49-48 vote that cut across party lines. There is no foundation for the argument that this is a simple perfecting amendment that would achieve a result which is clearly intended by Congress. Again today we heard the now familiar litany on the issue of intent. We heard about Ambassador Kantor, FDA Deputy Commissioner Bill Schultz, and all the other Administration representatives who attend the school of revisionist history on this issue. What has become apparent to me during this debate, a fact which has not been revealed today by any of my colleagues, is that the argument on intent has been rejected by the Court of Appeals for the Federal Circuit, which could find no definitive evidence of intent. In the November, 1995 Royce decision, the Federal Circuit stated: The parties have not pointed to, and we have not discovered, any legislative history on the intent of Congress, at the time of passage of the URAA, regarding the interplay between the URAA and the Hatch-Waxman Act. Perhaps some day my colleagues can explain why it is that the Federal Circuit, a neutral judicial tribunal, is having so much trouble finding any evidence on the question of intent, a question that seems to lie at the center of this debate. Perhaps some day my colleagues can explain why, in their quest to ``level the playing field,'' they have created a special benefit for one industry. I challenge them to identify any industry that has attempted, let alone succeeded, to use the GATT transition rules to reach the market prior to expiration of the newly extended patents. It just hasn't happened, and it probably will not unless anyone can identify acts that would not have been infringing before we enacted the URAA that continued and became infringing after the URAA was enacted. It is curious to me that a lawyer for the generic drug industry would argue to the Supreme Court that ``the most obvious intended beneficiary of this statutory licensing system was the generic drug industry . . . In fact, since the adoption of TRIPS and the URAA, no industry other than the generic drug industry has emerged as being potentially affected by the equitable remuneration system.'' I will not prolong my remarks today. I look forward to exploring these and other issues in much greater detail at the markup. In closing, I want to reiterate my strong opposition to the amendment, and my disappointment that we are considering it here today prior to the Judiciary Committee's scheduled markup. Mr. DORGAN addressed the Chair.

Mr. HATCH

Mr. HATCH. I will withhold that unanimous-consent request.

Mr. HATCH. Mr. President, I think this is a big victory for all of America, but most of all for those folks who suffered in Oklahoma City, OK, and other terrorist incidents in the world. I want to acknowledge the work of some people who were critical to the passage of this bill--in particular, the majority leader. The majority leader, Bob Dole, is to be commended for his leadership. Once again, Senator Dole has delivered for the American people. I personally express my gratitude to our distinguished majority leader. I also want to acknowledge the work of Chairman Henry Hyde over in the House, and my fellow conferees, Senators Thurmond, Simpson, Biden, and Kennedy. Senators Nickles and Inhofe deserve mention, too, because they never let this institution forget who this bill was for. All of the survivors from the Oklahoma tragedy and the Pan Am disaster were critical to this bill's passage. So they all deserve our thanks. I want to mention a few of the other people who worked on this bill, as well--in particular, the staffers who worked long hours out of deep commitment to public service. Jeanne Lapatto, Christina Rios, Nick Altree, Mike Ashburn, John Gibbons, and Ed Richards were invaluable. Ashley Disque--a young woman who came to the committee as an L.C. and has not looked back--epitomized initiative. Mike Kennedy, an attorney who is going to go places, in my opinion, worked around the clock. Finally, I want to commend Mike O'Neill, our crime counsel. Mike is going to be leaving here in a few weeks to clerk for Justice Thomas over at the Supreme Court. Our loss is the Supreme Court's gain. Quite simply, Mike O'Neill, more than any other staffer, made this bill happen. Manus Cooney, our committee staff director and senior counsel is also to be commended. Some of Senator Biden's staff should be mentioned as well--Demetra Lambros and Chris Putala are true professionals. Also, I would like to thank Valerie Flappan of the legislative counsel's office. I also want to compliment the other House conferees and, in particular, Congressmen Hyde, McCollum, Schiff, Buyer, and especially Bob Barr from Georgia, who worked very hard on this bill and has provided an awful lot of input on this bill. Another staffer who should be mentioned here is Pat Murray, Henry Hyde's able and dedicated counsel who, in working with our staff, helped craft a true terrorism bill. Paul McNulty also deserves credit. There are so many others I would like to commend at this point. But I will end at this point and thank all of these good people for the good work they have done. I pay respect to my distinguished colleague, the minority leader on the Judiciary Committee. He is a tough, tough opponent. He is a very good advocate. It is one of the privileges in my life to be able to work with him on the Judiciary Committee and to be able to have this type of a relationship, and still to occasionally fight each other on the floor and, hopefully, walk away still friends. In particular, I want to make all those congratulations. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the Subcommittee on Parks, Historic Preservation, and Recreation of the Committee on Energy and Natural Resources be granted permission to meet during the session of the Senate on Wednesday, April 17, 1996, for purposes of conducting a subcommittee hearing which is scheduled to begin at 9:30 a.m. The purpose of this hearing is to consider S. 128, a bill to establish the Thomas Cole National Historical Site in the State of New York; S. 695, a bill to provide for the establishment of the Tallgrass Prairie National Preserve in Kansas; and S. 1476, a bill to establish the Boston Harbor Islands National Recreation Area.

Mr. HATCH. Mr. President, I ask unanimous consent that the Administrative Oversight and the Courts Subcommittee be authorized to meet during the session of the Senate on Wednesday, April 17, 1996, at 2 p.m., to hold an executive business meeting.

Mr. HATCH

Mr. HATCH. I thought maybe the Senator had used his time. I withdraw my request.

Mr. HATCH. I do not have to move to table?

Mr. HATCH. Mr. President, I yield 60 seconds of my time to the distinguished Senator from Delaware.

Mr. HATCH. It is my understanding that these votes will be back to back starting now.