Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, 100 years ago today, January 4, 1896, President Grover Cleveland signed a proclamation admitting Utah as the 45th State of the Union. I rise in recognition of this event and to join with Utahns everywhere to celebrate the centennial of the State of Utah. Prior to President Cleveland's action, Utahns had diligently battled for more than half a century to attain this goal. The telegram announcing Utah's statehood arrived at 9:13 a.m. on that winter morning in January at the Western Union office located on Main Street in Salt Lake City. As gunshots rang out the news, hundreds of people began shouting with joy, ``Statehood has been proclaimed.'' Bells and whistles reverberated throughout the valley, and one-by-one, 100 American flags were hoisted. President Cleveland actually signed the proclamation at 10:03 a.m. in Washington, DC. His private secretary, Mr. Thurber, was quoted in the Salt Lake Tribune as saying, The President looked upon the signing of the proclamation as purely as Executive act, and one not, therefore, to be witnessed by the public any more than the affixing of his signature to other routine business which came before him. Let me emphatically state 100 years later than President Cleveland's act was not just routine business--this was the birth of a truly remarkable State. Utah is great because its people make it so. Utahns, regardless of religious affiliation, hold solid values in common that I believe are essential to the quality of life anywhere. These include a strong work ethic, honesty, charity, compassion, thrift, perseverance, and respect for the family. There is a positive can do attitude in our State that is irresistible and refreshing. As our State motto indicates, Utah is industrious. As we excel in the arts and humanities, we also excel in the sciences and in commerce. This success has brought us an enviable level of prosperity compared to other States, and sets the stage for a stable future for our children. Utah's natural beauty is unsurpassed. The State of Utah has as a lasting and historical landmark, the Great Salt Lake; the greatest snow on Earth; and everything to offer in pure natural beauty. We are surrounded by the majesty of our mountains and forests; the breathtaking beauty of our red rock canyons; and the wide, open, limitless expanse of our farmlands and deserts. People have come to Utah from every part of the world with one basic motivation--the belief that this is the place where they would find the opportunity to pursue their hopes and dreams. Utah's history is filled with tales of people who have displayed remarkable determination and the will to forge ahead regardless of the odds. Our history and our people have literally made a desert blossom. Utah leaves an indelible impression upon its citizens, its visitors, and its leaders. The Utah values and the people who believe in them are the reasons Utah is a wonderful place to live, work, and most importantly raise our families. Mr. President, most of my colleagues have had the opportunity to visit Utah and experience the spirit that makes our State what it is today. As many have told me, they can fully understand why I am so proud to represent Utah in this body. I choose to bring this highly important date to the attention of the Senate in the hope that my colleagues will join with me in congratulating all Utahns for a job well done. I want to publicly recognize all of the citizens of the great State of Utah and sincerely thank them for making Utah the wonderful place that it is today. I am honored to represent the people of Utah, and I hope and pray that the next 100 years will be successful and peaceful for all those who dwell within Utah's borders. Happy 100th birthday Utah.

Mr. HATCH

Mr. HATCH. Mr. President, I am very pleased to introduce today the Federal Trademark Dilution Act of 1995. Mr. President, this bill is designed to protect famous trademarks from subsequent uses that blur the distinctiveness of the mark or tarnish or disparage it, even in the absence of a likelihood of confusion. Thus, for example, the use of DuPont shoes, Buick aspirin, and Kodak pianos would be actionable under this bill. The concept of dilution dates as far back as 1927, when the Harvard Law Review published an article by Frank I. Schecter in which it was argued that coined or unique trademarks should be protected from the ``gradual whittling away of dispersion of the identity and hold upon the public mind'' of the mark by its use on noncompeting goods. Today, 25 States have laws that prohibit trademark dilution. A Federal dilution statute is necessary, Mr. President, because famous marks ordinarily are used on a nationwide basis and dilution protection is only available on a patchwork system of protection. Further, some courts are reluctant to grant nationwide injunctions for violation of State law where half of the States have no dilution law. Protection for famous marks should not depend on whether the forum where suit is filed has a dilution statute. This simply encourages forum-shopping and increases the amount of litigation. Moreover, Mr. President, the GATT agreement includes a provision designed to provide dilution protection to famous marks. Thus, enactment of this bill will be consistent with the terms of the agreement, as well as the Paris Convention, of which the United States is also a member. Passage of a Federal dilution statute, Mr. President, would also assist the executive branch in its bilateral and multilateral negotiations with other countries to secure greater protection for the famous marks owned by U.S. companies. Foreign countries are reluctant to change their laws to protect famous U.S. marks if the United States does not afford special protection for such marks. Mr. President, as many Members will recall, a Federal dilution statute was proposed as part of the comprehensive trademark reform package that was enacted into law in November 1988, and took effect 1 year later. The comprehensive bill initially passed by the Senate included the dilution provision. However, the dilution proposal was deleted from the bill prior to final congressional passage. The current proposal, I believe, eliminates any concerns previously voiced in congressional hearings regarding the former Federal dilution provision. Mr. President, the bill I am introducing today is the product of years of consideration and the study by Congress and various experts in this field, including the International Trademark Association, formerly the United States Trademark Association. It would amend section 43 of the Trademark Act to add a new subsection (c) to provide protection against another's commercial use of a famous mark which results in the dilution of such mark. The bill defines the term ``dilution'' to mean ``the lessening of the capacity of registrant's mark to identify and distinguish goods and services regardless of the presence or absence of (a) competition between the parties, or (b) likelihood of confusion, mistake, or deception.'' The proposal adequately addresses legitimate first amendment concerns espoused by the broadcasting industry and the media. The bill will not prohibit or threaten noncommercial expression, such as parody, satire, editorial and other forms of expression that are not a part of a commercial transaction. The bill includes specific language exempting from liability the ``fair use'' of a mark in the context of comparative commercial advertising or promotion. The legislation sets forth a number of specific criteria in determining whether a mark has acquired the level of distinctiveness to be considered famous. These criteria include: First, the degree of inherent or acquired distinctiveness of the mark; second, the duration and extent of the use of the mark; and third, the geographical extent of the trading area in which the mark is used. With respect to remedies, the bill limits the relief a court could award to an injunction unless the wrongdoer willfully intended to trade on the registrant's reputation or to cause dilution, in which case other remedies under the Trademark Act become available. The ownership of a valid Federal registration would act as a complete bar to a dilution action brought under State law. Mr. President, the Judiciary Committee, which I chair, looks forward to working with all interested parties to secure enactment of a Federal dilution statute that adequately meets the needs of trademark owners and is consistent with the public interest. I ask unanimous consent that the text of the bill and a section-by- section analysis be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I am very pleased to introduce today the Federal Trademark Dilution Act of 1995. Mr. President, this bill is designed to protect famous trademarks from subsequent uses that blur the distinctiveness of the mark or tarnish or disparage it, even in the absence of a likelihood of confusion. Thus, for example, the use of DuPont shoes, Buick aspirin, and Kodak pianos would be actionable under this bill. The concept of dilution dates as far back as 1927, when the Harvard Law Review published an article by Frank I. Schecter in which it was argued that coined or unique trademarks should be protected from the ``gradual whittling away of dispersion of the identity and hold upon the public mind'' of the mark by its use on noncompeting goods. Today, 25 States have laws that prohibit trademark dilution. A Federal dilution statute is necessary, Mr. President, because famous marks ordinarily are used on a nationwide basis and dilution protection is only available on a patchwork system of protection. Further, some courts are reluctant to grant nationwide injunctions for violation of State law where half of the States have no dilution law. Protection for famous marks should not depend on whether the forum where suit is filed has a dilution statute. This simply encourages forum-shopping and increases the amount of litigation. Moreover, Mr. President, the GATT agreement includes a provision designed to provide dilution protection to famous marks. Thus, enactment of this bill will be consistent with the terms of the agreement, as well as the Paris Convention, of which the United States is also a member. Passage of a Federal dilution statute, Mr. President, would also assist the executive branch in its bilateral and multilateral negotiations with other countries to secure greater protection for the famous marks owned by U.S. companies. Foreign countries are reluctant to change their laws to protect famous U.S. marks if the United States does not afford special protection for such marks. Mr. President, as many Members will recall, a Federal dilution statute was proposed as part of the comprehensive trademark reform package that was enacted into law in November 1988, and took effect 1 year later. The comprehensive bill initially passed by the Senate included the dilution provision. However, the dilution proposal was deleted from the bill prior to final congressional passage. The current proposal, I believe, eliminates any concerns previously voiced in congressional hearings regarding the former Federal dilution provision. Mr. President, the bill I am introducing today is the product of years of consideration and the study by Congress and various experts in this field, including the International Trademark Association, formerly the United States Trademark Association. It would amend section 43 of the Trademark Act to add a new subsection (c) to provide protection against another's commercial use of a famous mark which results in the dilution of such mark. The bill defines the term ``dilution'' to mean ``the lessening of the capacity of registrant's mark to identify and distinguish goods and services regardless of the presence or absence of (a) competition between the parties, or (b) likelihood of confusion, mistake, or deception.'' The proposal adequately addresses legitimate first amendment concerns espoused by the broadcasting industry and the media. The bill will not prohibit or threaten noncommercial expression, such as parody, satire, editorial and other forms of expression that are not a part of a commercial transaction. The bill includes specific language exempting from liability the ``fair use'' of a mark in the context of comparative commercial advertising or promotion. The legislation sets forth a number of specific criteria in determining whether a mark has acquired the level of distinctiveness to be considered famous. These criteria include: First, the degree of inherent or acquired distinctiveness of the mark; second, the duration and extent of the use of the mark; and third, the geographical extent of the trading area in which the mark is used. With respect to remedies, the bill limits the relief a court could award to an injunction unless the wrongdoer willfully intended to trade on the registrant's reputation or to cause dilution, in which case other remedies under the Trademark Act become available. The ownership of a valid Federal registration would act as a complete bar to a dilution action brought under State law. Mr. President, the Judiciary Committee, which I chair, looks forward to working with all interested parties to secure enactment of a Federal dilution statute that adequately meets the needs of trademark owners and is consistent with the public interest. I ask unanimous consent that the text of the bill and a section-by- section analysis be printed in the Record.

Mr. HATCH

Mr. HATCH. I very much appreciate my colleague from Michigan's efforts, and I also appreciate his willingness to forbear from offering his proposals at this time. I know that he agrees with me on the need to act this session to make restitution mandatory in the Federal courts. We all agree that more remains to be done to enforce these debts. My colleague's proposals are both interesting and innovative, and I want to work with him and other Members to see that they are adopted by this body in some fashion when we take up our fines bill next year.

Mr. HATCH. Mr. President, I rise in strong support of Victims Justice Act. As reported by the Judiciary Committee, and amended by the managers' substitute offered by myself and Senator Biden, this bill will fill a tremendous gap in our criminal justice system. This legislation represents an important step toward a criminal justice system in which the rights and needs of the victim are respected. This legislation has a long history. Congress first enacted a general Federal victim restitution statute in 1982 as a part of the Victim and Witness Protection Act (Public Law 97-291). The 1982 act sought to remedy the unfortunate situation noted even then by the Judiciary Committee that: . . . restitution . . . lost its priority status in the sentencing procedures of our federal courts long ago. As a matter of practice, [restitution] is infrequently used and indifferently enforced. The 1982 act provided, for the first time, Federal courts with the authority to order payments of restitution independently of a sentence of probation, and required the court to state its reasons for the record in instances in which restitution was not ordered. The legislation enacted in 1982 has been the subject of modest amendments in the years since, but remains substantially intact as enacted 13 years ago. Unfortunately, however, while strides have been made since 1982 towards a greater respect for victims in the criminal justice system, much progress remains to be made in the area of victim restitution. According to the 1994 Annual Report of the U.S. Sentencing Commission, during Fiscal Year 1994, Federal courts ordered restitution in only 20.2 percent of criminal cases. Data from the same report show that restitution was ordered in only 27.9 percent of all murders, 28.2 percent of all kidnappings, 55.2 percent of all robberies, and 12.5 percent of all sexual abuses cases. That is simply not enough. It is just as important for a victim of violent crime to receive recompense for her injuries as it is for a victim of property crime to have the property returned, or otherwise paid for. Restitution, as a concept of justice, extends far beyond the mere return of property. Language substantially similar to H.R. 665 has passed the Senate on three previous occasions. However, this language was never approved in legislation presented to the President. In 1994, Congress enacted the Violence Against Women Act. That act included provisions requiring mandatory restitution in Federal cases to victims of sexual abuse, sexual exploitation and other abuse of children, and domestic violence. The 1994 Crime Act also made restitution mandatory for victims of telemarketing fraud, a provision I strongly supported as the chief author of the Senior Citizens Against Marketing Scams [SCAMS] Act. It is time now, however, to extend this important protection to victims of other crimes as well. Far too often our criminal justice system appears to ignore the victims of crime. It frequently seems that only criminals have rights in the system. Victims often seem to be marginalized once the criminal justice system shifts into gear. As a result, crime victims often feel victimized twice--once by the criminal and then again by the system that seems to ignore their plight. Restitution to the victims of crime is a critical component of the justice system. The order of restitution represents the justice system's recognition that a real person, not only society, has suffered a wrong. Too often lost in the mix is the fact that, when the United States brings a criminal prosecution, while it does so on behalf of all the people, there is frequently a single person who has been victimized. While it is true that society as a whole is aggrieved by any criminal act, it is not society that must cope with the most immediate costs--the burden of fear, the loss of a loved one, or the anguish of personal loss. These burdens are reserved to the victims and survivors of crime. Restitution, moreover, can provide important closure to victims of crime, even if it cannot turn back the clock and undo the loss itself. Many crime victims have told me that until the criminal is directed to pay restitution, the wound of the crime is not completely healed. Restitution has an important penalogical function as well, providing a necessary reminder to the offender of the human consequences of his or her criminl act. Critics charge that most criminal defendants are too poor to pay restitution. But even if only a few dollars a month are collectd, it forces the criminal to contemplate his criminal act and truly pay for the crime. As I have noted, the U.S. Sentencing Commission has reported that judges ordered restitution in only a small percent of Federal criminal cases during fiscal year 1994. This legislation addresses this problem with solid victim restitution reform. For the first time, it will be mandatory that identifiable victims of violent crimes, property and fraud crimes under title 18, and product tampering receive full restitution for their losses. We nevertheless recognize and wish to avoid the danger that in complex cases the sentencing process could turn into a mini-civil trial. For this reason, the legislation permits the court to decline to order restitution if the number of identifiable victims is so large as to make restitution impracticable, or if the determination of complex factual issues would place burdens on the sentencing process that far outweigh the need for restitution. This bill also recognizes the need of victims to have full restitution ordered despite the sad fact that the defendant will often be unable to make more than nominal payments. Our legislation gives the courts the flexibility to order nominl installment payments in these instances. At the same time, we cannot ignore the costs that making orders of restitution mandatory in all Federal criminal cases could impose on the judicial cases could impose on the judicial system. We have attempted to strike a balance in this legislation, and I believe we have largely succeeded. Our bill also provides one set of procedures for the issuance and enforcement of a restitution order under title 18. A single section of title 18, section 3664, will govern the issuance of all criminal victim restitution orders, including those we enacted last year in the Violence Against Women Act and the SCAMS Act. I want to emphasize that the scope of restitution orders authorized under those laws remains unchanged. We simply seek to reduce the burden caused by incompatible restitution systems. The bill will also utilize existing provisions for the collection of fines to enforce restitution orders. Moreover, it will improve our ability to actually collect both restitution and fines by strengthening tools such as the revocation of probation, resentencing and other sanctions. Finally, the bill strengthens victims assistance programs by including provisions that have already passed the Senate as a part of the terrorism bill. A provision originally authored by Senator Leahy authorizes victim's assistance to victims of terrorism and makes other improvements to the Crime Victims Fund. Our bill seeks to enhance the resources available for victims assistance by including a McCain amendment to the terrorism bill that doubles the special assessments on persons convicted in Federal cases. Mr. President, I want to express my particular appreciation to Senator Biden, Senator Nickles, Senator McCain, and Senator Grassley for their able assistance in crafting this important bill. This bill is not perfect. All of us recognize that there is much we need to do to streamline the collection of criminal debts, including restitution. Nor is this the last step we need to take to restore the victim to their rightful place in the criminal justice system. However, it is an important step. When enacted, our legislation will do much to restore respect for the victims of crime and to recognize their loss. I urge all of my colleagues to support this bill.

Mr. HATCH. The Senator from Arizona is correct. The committee intends to take up an enforcement bill next year. The initiatives you have outlined deserve serious consideration and I look forward to working with you on them.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce the Parole Commission Phaseout Act of 1995. I am pleased to be joined in this effort by the ranking member of the Judiciary Committee, Senator Biden, as well as by Senator Thurmond and Senator Kennedy. This legislation, which is supported by both the administration and the Federal judiciary, provides for a reduction in size of the Parole Commission. At the same time, it will ensure that the Commission's duties, which are required by the due process and ex post facto clauses of the Constitution, will continue to be carried out. Under the Sentencing Reform Act of 1984, Congress eliminated parole for persons convicted of offenses committed after November 1, 1987. Pursuant to amendments to the Sentencing Reform Act, the Parole Commission is currently scheduled go out of existence on November 1, 1997. At that time, however, the Federal Government will retain custody over a significant number prisoners sentenced for crimes committed before 1987, and thus entitled to parole hearings. The Parole Commission estimates that as of November, 1997, there will be approximately 6,000 such so-called old law convicts remaining in prison. In addition, it is anticipated that another 6,000 such convicts will have been released on parole, subject to reincarceration for parole violations. Presently, no other agency of the Federal Government can adequately assume the duties of the Parole Commission with regard to these old law prisoners. Yet, these prisoners are constitutionally entitled to parole consideration. Without the Parole Commission, these prisoners could claim that their sentences were being unconstitutionally lengthened by the application of a law enacted after their offense, and apply for immediate release. Thus, were the Commission allowed to terminate as scheduled, public safety could be endangered by the immediate release of dangerous criminals who have not served their sentences. The parole Commission is also commendably seeking to reduce its size to better accommodate its smaller workload. As the number of ``old law'' prisoners continues to shrink, the need for the Commission, as presently constituted, will disappear, and remaining functions will be able to be transferred to another agency of the government. This legislation accomplishes the prudent phaseout of the Commission be extending its mandate for an additional 5 years, until November 1, 2002. Simultaneously, the bill reduces the size of the Commission. The Commission's size would be reduced by one member immediately upon enactment, and by another member in October 1996. Thus, the size of the Commission would be reduced by one-third by October 1996, with significant savings to the American taxpayers. I urge my colleagues to support this commonsense proposal, and look forward to the swift passage of this bill.

Mr. HATCH

Mr. HATCH. Mr. President, religious liberty is the first freedom mentioned in the Bill of Rights. Today, I am introducing a religious equality constitutional amendment to restore that freedom to its intended and proper place in American society. This amendment is intended to rescue the first amendment's requirement that Congress ``shall make no law * * * prohibiting the free exercise [of religion] * * *'' from a misguided Supreme Court jurisprudence and the hostility that jurisprudence has spawned among local, State, and Federal Governments toward the participation of religious institutions in the public square. This is the same amendment introduced by Congressman Henry Hyde, chairman of the House Judiciary Committee. In my view, our Nation benefits greatly from the participation of religious institutions in the public square. Religious values and influences are important components in addressing the social problems facing our country. These problems include the breakdown of the family, loss of respect for the values of human life, honesty, and hard work, the growing problem of juvenile crime, and the worsening drug problem. We can provide public support to private religious institutions in carrying out vital social welfare functions whenever public support is provided to private secular institutions without establishing a religion or group of religions. The amendment embodies two key principles. First, if public benefits are dispensed to private secular entities, Government cannot deny such benefits to private religious entities. Second, in dispensing such benefits among private religious entities, the Government may not discriminate among them based on religious beliefs. Mr. President, I introduce this amendment after careful personal consideration and considerable public debate. I revere the Constitution and do not take lightly the proposal of new amendments to it. But after long study and discussion, and a series of hearings in the Judiciary Committee which I chair, I believe that a constitutional amendment is necessary to protect the rights of believing Americans. These rights are now often denied as a result of a confused and often erroneous constitutional jurisprudence in the courts and discrimination against religious groups and individuals by administrative agencies. In our Judiciary Committee hearings this past autumn, we heard stories of individuals who were denied access to government benefits simply because of their religious beliefs. Surely no one who has not been schooled in the intricate confusions of first amendment jurisprudence would think that the cases we heard were fairly resolved. We heard from the station manager of the Fordham University public radio station, which was denied construction funds available to all other public radio stations by the Clinton administration's Commerce Department because it broadcasts the Catholic mass 1 hour a week. Arguments that the religious broadcast was a very small part of a very diverse programming schedule or that it was a practice going back more than 50 years were unavailing. Even the fact that the station was responding to community needs, as public stations are supposed to, by providing this religious programming to the elderly and disabled shut- ins did not move the bureaucrats at the Commerce Department. Given that the station needed the funds to comply with government facility requirements, but were told that the station would receive no money as long as the offending program was broadcast, the Clinton administration was virtually saying, ``stop broadcasting Catholic mass or stop broadcasting at all.'' This is appalling enough as an administrative abuse, but is has been abetted by a lower Federal court, and now awaits an appeals court decision. I should note that the statutory remedy provided by the landmark Religious Freedom Restoration Act, which I was proud to cosponsor and which President Clinton was proud to sign, was held unavailing in this case. Two Supreme Court cases that were much discussed at our hearings by constitutional experts point up the human costs of discrimination by the government in dispensing public benefits. In Aguilar versus Felton, the Supreme Court held that remedial English and math could not be provided to economically deprived children on the premises of their school, if the school is religious. Similarly, in the case of Witters versus Dept. of Services for the Blind, Larry Witters, and otherwise eligible applicant for Government assistance to blind students, was ultimately denied that assistance because his chosen course of study was religious. The Supreme Court held that the first amendment did not require that he be denied funding, but it was not prepared to hold that the First Amendment prohibited antireligious discrimination. On remand, the State supreme court of Washington found that the State constitution required the denial of benefits and the U.S. Supreme Court denied further review of the case. Mr. President, does it make sense that people with disabilities who are otherwise entitled to Government assistance are denied that help because they also choose to exercise their rights of conscience? Even when a religious person wins a case, it often takes so long that the help is no longer needed, or the case is decided on such narrow grounds or with such narrow vote margins that future parties have no comfort in ordering their conduct based on Supreme Court precedent. In the case of Zobrest versus Catalina Foothills School District, a deaf student's right to a deaf interpreter at school was not vindicated until well after he had graduated. And in the important case of Rosenberger versus University of Virginia, decided earlier this year, a Christian student group's right to funding of publishing activities on par with other student groups, including Jewish and Muslim groups, was upheld on a 5-to-4 vote, with Justice O'Connor, one of the five-vote majority, explicitly stating that the case was decided on its particular facts and that no broad principle upon which anyone can rely was announced in that case. Mr. President, more must be done to safeguard the right of conscience of religious Americans. Many of us have tried to help with statutory safeguards like the Religious Freedom Restoration Act. But statutory solutions are not wholly adequate to correcting the erroneous interpretations of first amendment law by the courts. Only a constitutional amendment can do that. And that is why I am proposing one today. The proposed amendment does not seek to bring back school-sponsored or state-sponsored prayer; it does not seek to create a nationally established theology. It merely seeks to require that the government act neutrally among beneficiaries of generally available resources. At a time when social values are eroding and family structures are collapsing why should we actively discriminate against religious entities and drive them out of the public square? At a time when all types of groups and viewpoints can receive Federal funds, why do we shut out or seriously hamper religious groups? At a time when we wish to make our Federal dollars go farther, why should we not take advantage of religious charities, day care, educational, or other social services? We should not be cutting ourselves off from their help simply because they have a partly religious mission. Nor should we be turning away otherwise qualified Americans from Government assistance simply because they seek to enjoy their rights as religious believers. On a more personal note, Mr. President, I come from a religious tradition which has known the heavy hand of government. People of my faith know what it is like to be a minority religion subject to persecution by other religions and by the State and Federal Governments. In the middle of the last century, the Mormons were driven from State to State, and ultimately out of the then-United States altogether, and even then they were still molested by the Federal Government. I am concerned that government not drive religion out of the public square and from our public dialog on issues confronting our people. And I am concerned that the Government not single out persons of faith for worse treatment than their fellow Americans when it comes to enjoying the benefits of public resources. Rather than upset the fine balance between religious beliefs and other philosophies in our pluralistic society, the proposed amendment seeks to restore it. No group should be disenfranchised by government fiat--and we should be especially careful that no group be disenfranchised for exercise of religious faith. Their rights were to be protected by the First particular among our Bill of Rights. It is sad that we must revisit so basic an issue in this way at this late hour because of recent aberrations in our Government's understanding of those rights. Mr. President, I realize that this is an important issue and that amending the Constitution is a serious step. I am confident that this amendment will generate useful discussion and debate about the issue, and I think that will be good for the country. I commend this amendment to my colleagues, scholars, and fair-minded people throughout our country, and hope it will find their support.

Mr. HATCH

Mr. HATCH. Mr. President, we stand here today to debate and vote on a very important piece of legislation, one that could change the lives of America's needy families. Not since the Economic Opportunity Act was signed into law by President Lyndon Johnson on August 20, 1964, have we had such broad- sweeping and radical change in our welfare system. Mr. President, we all know that the current war on poverty has not been successful. Since the war began, the number of children on the welfare rolls has grown from 3.3 million to 9.6 million in 1993. This was not the result of negligence, or a lack of trying. The combined Federal, State, and local spending on welfare in constant dollars increased from $38.4 billion in 1965 to $324.3 billion in 1993. The current system is not working. What was designed with good intent, has become a trap pulling the needy families of America into a cycle of dependency that eats at their self-esteem and their ability to become self-sufficient. The legislation before us today would change all that. This legislation moves the Federal Government out of the paper-pushing bureaucracy and moves it into a facilitator for families moving into self-sufficiency. This legislation will help empower our families, not pull them into perpetual dependency. Gone will be the days of welfare checks for nothing. Beneficiaries will now have to engage in work activities in order to receive assistance. This legislation retains the role of the Federal Government in overseeing the allocation of Federal money, but also gives the authority for designing the systems to the States. The States are in the best position to know the needs and environment of their unique constituencies. This legislation will allow them to design programs that coordinate resources and support families rather than just lead them through the blind maze of bureaucracy. Mr. President, we all agree that the current system must be changed. This legislation turns the welfare programs of this country into a cohesive system flexible enough to meet the varying demands of individual States and areas while protecting our families and our children. I urge my colleagues and the President to take the chance we have today to make good on President Clinton's campaign promise to ``change welfare as we know it.'' Let us pass this legislation and enable it to become public law.

Mr. HATCH

Mr. HATCH. Mr. President, religious liberty is the first freedom mentioned in the Bill of Rights. Today, I am introducing a religious equality constitutional amendment to restore that freedom to its intended and proper place in American society. This amendment is intended to rescue the first amendment's requirement that Congress ``shall make no law * * * prohibiting the free exercise [of religion] * * *'' from a misguided Supreme Court jurisprudence and the hostility that jurisprudence has spawned among local, State, and Federal Governments toward the participation of religious institutions in the public square. This is the same amendment introduced by Congressman Henry Hyde, chairman of the House Judiciary Committee. In my view, our Nation benefits greatly from the participation of religious institutions in the public square. Religious values and influences are important components in addressing the social problems facing our country. These problems include the breakdown of the family, loss of respect for the values of human life, honesty, and hard work, the growing problem of juvenile crime, and the worsening drug problem. We can provide public support to private religious institutions in carrying out vital social welfare functions whenever public support is provided to private secular institutions without establishing a religion or group of religions. The amendment embodies two key principles. First, if public benefits are dispensed to private secular entities, Government cannot deny such benefits to private religious entities. Second, in dispensing such benefits among private religious entities, the Government may not discriminate among them based on religious beliefs. Mr. President, I introduce this amendment after careful personal consideration and considerable public debate. I revere the Constitution and do not take lightly the proposal of new amendments to it. But after long study and discussion, and a series of hearings in the Judiciary Committee which I chair, I believe that a constitutional amendment is necessary to protect the rights of believing Americans. These rights are now often denied as a result of a confused and often erroneous constitutional jurisprudence in the courts and discrimination against religious groups and individuals by administrative agencies. In our Judiciary Committee hearings this past autumn, we heard stories of individuals who were denied access to government benefits simply because of their religious beliefs. Surely no one who has not been schooled in the intricate confusions of first amendment jurisprudence would think that the cases we heard were fairly resolved. We heard from the station manager of the Fordham University public radio station, which was denied construction funds available to all other public radio stations by the Clinton administration's Commerce Department because it broadcasts the Catholic mass 1 hour a week. Arguments that the religious broadcast was a very small part of a very diverse programming schedule or that it was a practice going back more than 50 years were unavailing. Even the fact that the station was responding to community needs, as public stations are supposed to, by providing this religious programming to the elderly and disabled shut- ins did not move the bureaucrats at the Commerce Department. Given that the station needed the funds to comply with government facility requirements, but were told that the station would receive no money as long as the offending program was broadcast, the Clinton administration was virtually saying, ``stop broadcasting Catholic mass or stop broadcasting at all.'' This is appalling enough as an administrative abuse, but is has been abetted by a lower Federal court, and now awaits an appeals court decision. I should note that the statutory remedy provided by the landmark Religious Freedom Restoration Act, which I was proud to cosponsor and which President Clinton was proud to sign, was held unavailing in this case. Two Supreme Court cases that were much discussed at our hearings by constitutional experts point up the human costs of discrimination by the government in dispensing public benefits. In Aguilar versus Felton, the Supreme Court held that remedial English and math could not be provided to economically deprived children on the premises of their school, if the school is religious. Similarly, in the case of Witters versus Dept. of Services for the Blind, Larry Witters, and otherwise eligible applicant for Government assistance to blind students, was ultimately denied that assistance because his chosen course of study was religious. The Supreme Court held that the first amendment did not require that he be denied funding, but it was not prepared to hold that the First Amendment prohibited antireligious discrimination. On remand, the State supreme court of Washington found that the State constitution required the denial of benefits and the U.S. Supreme Court denied further review of the case. Mr. President, does it make sense that people with disabilities who are otherwise entitled to Government assistance are denied that help because they also choose to exercise their rights of conscience? Even when a religious person wins a case, it often takes so long that the help is no longer needed, or the case is decided on such narrow grounds or with such narrow vote margins that future parties have no comfort in ordering their conduct based on Supreme Court precedent. In the case of Zobrest versus Catalina Foothills School District, a deaf student's right to a deaf interpreter at school was not vindicated until well after he had graduated. And in the important case of Rosenberger versus University of Virginia, decided earlier this year, a Christian student group's right to funding of publishing activities on par with other student groups, including Jewish and Muslim groups, was upheld on a 5-to-4 vote, with Justice O'Connor, one of the five-vote majority, explicitly stating that the case was decided on its particular facts and that no broad principle upon which anyone can rely was announced in that case. Mr. President, more must be done to safeguard the right of conscience of religious Americans. Many of us have tried to help with statutory safeguards like the Religious Freedom Restoration Act. But statutory solutions are not wholly adequate to correcting the erroneous interpretations of first amendment law by the courts. Only a constitutional amendment can do that. And that is why I am proposing one today. The proposed amendment does not seek to bring back school-sponsored or state-sponsored prayer; it does not seek to create a nationally established theology. It merely seeks to require that the government act neutrally among beneficiaries of generally available resources. At a time when social values are eroding and family structures are collapsing why should we actively discriminate against religious entities and drive them out of the public square? At a time when all types of groups and viewpoints can receive Federal funds, why do we shut out or seriously hamper religious groups? At a time when we wish to make our Federal dollars go farther, why should we not take advantage of religious charities, day care, educational, or other social services? We should not be cutting ourselves off from their help simply because they have a partly religious mission. Nor should we be turning away otherwise qualified Americans from Government assistance simply because they seek to enjoy their rights as religious believers. On a more personal note, Mr. President, I come from a religious tradition which has known the heavy hand of government. People of my faith know what it is like to be a minority religion subject to persecution by other religions and by the State and Federal Governments. In the middle of the last century, the Mormons were driven from State to State, and ultimately out of the then-United States altogether, and even then they were still molested by the Federal Government. I am concerned that government not drive religion out of the public square and from our public dialog on issues confronting our people. And I am concerned that the Government not single out persons of faith for worse treatment than their fellow Americans when it comes to enjoying the benefits of public resources. Rather than upset the fine balance between religious beliefs and other philosophies in our pluralistic society, the proposed amendment seeks to restore it. No group should be disenfranchised by government fiat--and we should be especially careful that no group be disenfranchised for exercise of religious faith. Their rights were to be protected by the First particular among our Bill of Rights. It is sad that we must revisit so basic an issue in this way at this late hour because of recent aberrations in our Government's understanding of those rights. Mr. President, I realize that this is an important issue and that amending the Constitution is a serious step. I am confident that this amendment will generate useful discussion and debate about the issue, and I think that will be good for the country. I commend this amendment to my colleagues, scholars, and fair-minded people throughout our country, and hope it will find their support.

Mr. HATCH

Mr. HATCH. I thank the Chair. Mr. President, on December 19, 1995, President Clinton vetoed the conference report to H.R. 1058, the Securities Litigation Reform Act of 1995. This act represents a very modest step forward in addressing some of the egregious abuses present in our litigation system today. In doing so, I believe President Clinton has sided with a handful of very wealthy lawyers and against the interests of the American people at large. President Clinton is a tenacious defender of the status quo. I do not think the status quo is serving us well. The securities bill was developed over the past several Congresses by a dedicated, bipartisan, moderate group of reformers who have long seen the need to change our securities litigation system. Senators Christopher Dodd and Pete Domenici have led this effort for a number of years and finally saw the opportunity for meaningful reform in this Congress. The securities litigation conference report passed the Senate by a bipartisan vote of 65 to 30. A total of 19 of our colleagues on the other side of the aisle voted in support of this moderate and meaningful bill. The legislation sought to make securities litigation fairer by curbing the abusive litigation practices that have been employed by a small number of plaintiffs lawyers in securities litigation class action lawsuits. That very small group of trial lawyers who specialize in securities litigation lawsuits represents the only ones who are truly hurt by the securities litigation reform bill. Likewise, they are the only ones who are helped by the President's veto--just a few, very wealthy litigation lawyers in the field of securities law. The plaintiffs lawyers who benefit from the President's veto are the ones who perfected the so-called strike suits. Strike suits are filed against companies after a drop in the stock price, frequently without regard to whether there has been any fraud or wrongdoing on the part of the company. And by the time the suit really gets in full swing, the litigation is so expensive for the companies that many of these companies just settle for defense costs to get rid of the problem and the embarrassment, and to not have to take a chance with some of the juries in some of the more, shall we say, jury-liberal States in our country. For example, in 1990, when LA Gear, the sportswear and sneaker manufacturer, announced lower than expected earnings, one law firm filed 15 lawsuits just 3 days after the announcement. The Banking Committee heard testimony concerning other cases in which securities lawsuits were filed within 90 minutes of the drop in share prices. These kinds of filings without regard to the merits are ridiculous. They are hurting American businesses and consumers. I am particularly concerned because perhaps hardest hit have been high-technology companies. Those companies form a key part of the American economy and are vitally important to the economies of Utah and many other States. They are being disproportionately hurt by these lawsuits. A Stanford University law professor, conducting a study of securities class action lawsuits filed in the 1980's, most involving high- technology firms, found that every single company, every single high- technology firm that experienced a market loss in stock price of at least $20 million was sued. Every single company. Those kinds of abuses are an outrage and an affront to the legal system. These are some of the most successful American companies, and they are being besieged with lawsuits. Some think it should be called legal extortion. It simply cannot be that every single high-technology firm that has suffered a $20 million or more loss is engaged in securities fraud. It just is not true. But by the time the lawsuits start and the litigation begins, and the depositions start and the discovery becomes burdensome and onerous, a lot of companies just throw up their hands in the air and pay whatever they have to to get out of it because they know that kind of litigation is never ending. The current litigation system encourages wasteful and needless litigation even where there is absolutely no evidence of wrongdoing. The unavoidable fact is that because of current skewed incentives in the litigation system, the small group of lawyers who file most strike suits are not filing such suits to protect shareholders against corporate fraud and wrongdoing. They are doing so to line their own pockets. I happen to be a lawyer. I happen to understand securities law. And I can tell you that is what is happening. The Banking Committee heard testimony that plaintiffs in these suits typically receive only 14 cents for every dollar while the trial lawyers collect a whopping 39 percent of these settlements. That is abominable and everybody knows it. Other studies have suggested even lower plaintiff recoveries. We are talking about the people who are supposedly wronged getting 14 cents out of every dollar while the attorneys get 39 cents out of every dollar. These lawyers are filing these lawsuits so that they can terrorize American companies into paying exorbitant settlements because they know these companies cannot afford the high legal fees that would be required to defend themselves even against meritless lawsuits. When companies must pay for needless litigation, settlement and insurance costs with dollars that could be going to create jobs or to further research and development, consumers and stockholders, virtually all Americans in fact are hurt. Due to wasted resources, profits and stock prices are lower than they would otherwise be and the shareholders in the end lose out. That should not be lost in this debate. The truth is that shareholders are very well protected under the securities laws and under this securities bill. This legislation ensures that the class action device remains available for those shareholders who have been in fact victims of securities fraud. In fact, it improves that device so that injured investors, not a small group of greedy lawyers, can control the litigation. Although the President pointed to what he claimed are a number of shortcomings in the bill that justify his veto, his excuses are just that--slender excuses for siding with some of these jackal lawyers. First, the President nitpicked with the bill's pleading requirements. However, legislative history in the House and Senate makes clear why a heightened standard requiring pleading with particularity is necessary to eliminate securities lawsuit abuses. The conference report sensibly requires a heightened pleading standard to weed out frivolous litigation and to free parties against whom claims are made from being subject to abusive and expensive discovery. Second, the President went after the safe harbor provision, which creates a safe harbor for forward-looking, predictive statements. Some companies have faced damaging lawsuits merely on the basis of vague but optimistic projections that the company would do well even though it was clear that the prediction was speculative and future oriented. The safe harbor provision sensibly addresses those problems. In fact, President Clinton notes that he supports the conference report language but is concerned with some language in the statement of the managers of the bill on this provision. Now, the Constitution gives the President the authority to veto legislation, but nowhere does it give the President authority to veto legislative history. I think a veto on the grounds of legislative history in this case is extreme, especially in light of the clear language of the bill. In short, President Clinton was stretching for excuses to veto this legislation. The only thing President Clinton has shown with his veto of the securities litigation reform bill is that he will side with a handful of trial lawyers against the interests of all Americans-- especially American consumers and shareholders. He has proven that he is not an agent of meaningful and needed change but instead a tenacious defender of the status quo. I encourage my colleagues to override his veto so we can provide meaningful change to Americans who are fed up with lawsuit abuse in this country. My good friend and colleague from Pennsylvania has joined the Clinton administration in questioning the pleadings standards contained in this bill. I should note, for the record, that in June of this year this very administration that has vetoed this bill called the bill's pleadings standards ``sensible'' or ``workable.'' I would also note that these pleadings standards were based, in part, on the recommendations of Judge Anthony Scirica of the Third Circuit Court of Appeals. Mr. President, I ask that the June administration policy statement and an October 31 letter from Judge Scirica be printed in the Record.

Mr. HATCH. Mr. President, this is an important bill. It is true reform. Having read and studied securities litigation, under the securities law true fraud can be prosecuted, true fraud can be brought. This bill is not going to interfere with those cases. What it does is stop the abuse and misuse of the class action litigation and even things out. This will stop the abuse of companies that have a downturn in their stocks, which happens to a lot of companies, and perhaps through no fault of their own or through some economic downturn that affects them, and will stop the litigation that is brought in many cases just to get defense costs. Too often, it costs more for companies to defend themselves, even though the case is meritless, than it would just to settle the case and get rid of the nasty hornet that has been buzzing around the company's head, for the use of these sometimes very greedy lawyers. Not all lawyers are greedy; not all lawyers are bad. Most of them are very good people. But there are abuses in the law. In this area it is particularly pronounced. This bill is brought to try and correct some of those pronounced abuses.

Mr. HATCH

Mr. HATCH. Mr. President, today, I rise to cosponsor with Senators Simon, Moseley-Braun, Bond, and Ashcroft, S. 1496, a bill to extend for 2 additional years the exclusive marketing period for the drug oxaprozin. I am supportive of Senator Simon's effort, because unusual, and perhaps unprecedented, administrative delays in review of this pharmaceutical have denied the manufacturer any patent protection. The Food and Drug Administration [FDA] review of oxaprozin consumed the entire 17-year patent term plus another 4 years. Some history on this issue may be useful at this point. Oxaprozin is a nonsteroidal, anti-inflammatory drug, or NSAID. It is used to treat arthritis and other ailments. Oxaprozin was first patented by G.D. Searle in 1971. Shortly thereafter, an investigational new drug [IND] application was submitted to FDA. In August 1982, a new drug application [NDA] was filed, but FDA did not approve the drug until October 29, 1992. In total, over 21 years expired after submission of the IND application and over 10 years elapsed from the filing of the NDA. As a result of this unusually long, and perhaps unprecedented, FDA regulatory review period, the patent for oxaprozin expired before oxaprozin could be brought to market. In the 1980s, Congress became concerned that the lengthy FDA pre- marketing regulatory approval system was depriving many companies of a substantial amount of the potential economic value of new drug patents, and thereby decreasing the incentives that lead to new breakthrough medications. In 1984, Representative Henry Waxman and I worked to secure enactment of the Drug Price Competition and Patent Term Restoration Act, a law that, in part, attempted to add patent term or an exclusive marketing period to partially restore time lost through FDA regulatory review. Under this 1984 law--sometimes referred to as the ``Hatch-Waxman Act'' or ``Waxman-Hatch'' an administrative procedure was provided to extend certain drug patents or prevent generic copies from entering the marketplace in order to provide compensation for at least some of the time lost as a result of FDA regulatory review. This legislation, however, did not contemplate extreme outliers such as oxaprozin. In some respects, oxaprozin presents a classic Catch-22 situation: Administrative patent extensions under Hatch-Waxman were not available until FDA approval was granted, but these administrative extensions could only be granted if the term of the patent had not expired. If a drug was not approved until after the expiration of the patent, no Hatch-Waxman patent extension could be granted, even though such cases represent the most egregious example of the problem Congress was trying to redress in the first place. In addition to patent extensions, the Hatch-Waxman Act contained marketing exclusivity provisions to address cases such as oxaprozin in which no patent protection remains. The Hatch-Waxman law provided 10 years of marketing exclusivity for pioneer drugs that were approved for marketing between January 1, 1982 and September 23, 1984. One result of oxaprozin's unduly long FDA review was that it could not qualify for extended patent life under the Hatch-Waxman transition rule. Instead, oxaprozin received only the more limited 5-year period of marketing exclusivity even though its review period at the FDA exceeded all of those drugs that received a 10-year extension. From 1974 until 1982, the FDA took, on average, only about 2 years to review and approve NSAID product applications. From about 1982, however, there existed a de facto moratorium on the approval of new NSAIDs. The Congress has examined the reasons behind this moratorium. In 1992, both the Senate and House Judiciary Committees, and House Energy and Commerce Committee, conducted hearings into the FDA delays in the approval of NSAIDs. In addition, the Judiciary Committees requested the GAO to investigate this delay. These examinations revealed that FDA faced an unusual set of circumstances from 1982 through 1987. As a result of the controversy surrounding four previously approved NSAIDs that raised serious post- marketing safety concerns, the average time taken to approve NSAID NDAs nearly doubled. By concentrating its resources to investigate the causes behind the reported NSAID adverse effects, the FDA directed its manpower away from approval of the pending NSAID NDAs. Mr. President, 2-weeks ago, the Senate was engaged in a debate that involved the sufficiency of the patent laws to help attract private sector investment into biomedical research. This issue has important ramifications for the public health. Over the next few months the Senate Judiciary Committee, on which I serve as Chairman, will be examining pharmaceutical patent issues. It will be important for the committee to examine fully the complex interrelationship between the patent laws and the FDA product review system for drugs. Oxaprozin serves as an important case study of a flawed system in which FDA regulatory delay materially undermines the value of intellectual property. A regulatory review period of 21 years is simply too long. I hope we can all agree that the FDA review period should not exhaust the entire patent term of a drug product. In light of the general disruption that occurred within the FDA NSAID review division and the particular facts relating to the 21 year FDA review of oxaprozin, the partial relief granted by S. 1496 is justified. I urge my colleagues to support this bill.

Mr. HATCH

Mr. HATCH. I appreciate the action of my friend from West Virginia because I know how busy he is, as all of us are, and my friends who are managing this bill. I think I would always yield to him, if I could. But he has been gracious enough to ask me to go forward. It has been implied in this debate that I have been listening to that the Whitewater investigation has been a waste, that it has been too costly and too expensive. I have to say, I did not hear the same arguments during the Iran-contra problem. But let me say, I would note that the Whitewater investigation has resulted in five indictments, including the indictment of a sitting Governor, and nine guilty pleas so far. We have also seen the No. 3 person at the Justice Department go to Federal prison. I personally feel badly about that because I liked him very much. I still like him very much and I am sorry he has had that difficulty. But I have to say, it shows that the Whitewater investigation has not been in vain, that it has been extremely important. Frankly, the investigation is not complete. I wonder how much all of that work is worth to the country. It seems to me the American people would want to investigate wrongdoing. I think the record shows that the independent counsel is moving ahead in an appropriate manner. And I believe the distinguished committee on White-water is moving ahead very well, too. I commend the two leaders, Senators D'Amato and Sarbanes, for the good way that they worked together and the tremendous amount of work they have done on this--plus their counsel. Their respective counsel have been as good as any I have ever seen. Having said that, Madam President, I rise in support of the resolution to authorize enforcement of the subpoena to obtain notes from a White House meeting concerning Whitewater. I do not take this step lightly, however. As chairman of the Judiciary Committee, I see it as my duty to defend the prerogatives of the executive branch and the separation of powers. Indeed, I recognize that the executive branch has a right to confidential communications regarding its core functions. After giving this issue careful thought and consideration, however, I have decided that enforcing the subpoena is the proper course of action to take. This issue transcends claims of partisanship and goes to the very constitutional authority of Congress to investigate wrongdoing at the highest levels of Government. The Senate has a constitutional obligation to conduct oversight hearings. It is a duty we must not surrender. The President has refused to comply with a legitimate request to obtain information relating to Whitewater. After President Clinton's initial refusal to provide the meeting notes, the Special Whitewater Committee took the wholly appropriate step of subpoenaing the notes. It is unfortunate that the President has chosen to resist the congressional subpoena. Not only has President Clinton defied a Congress that is in good faith attempting to investigate a matter of great public concern, he has chosen to do so by hiding behind a questionable claim of attorney-client privilege. I would like to review the claim of privilege the President is asserting and explain to the American people why it is simply not credible. First, the President not only claims that the November 5 Whitewater meeting is cloaked in attorney-client privilege, but that the privilege applies against Congress. No Congress in history, however, has recognized the existence of a common-law privilege that trumps the constitutionally authorized investigatory powers of Congress. While Congress has chosen, as a matter of discretion, to permit clear, legitimate claims of privilege, it has never allowed its constitutional authority to investigate wrongdoing in the executive branch to be undermined by universal recognition of the attorney-client privilege. As Senator Sarbanes has noted, we have chosen, in our discretion, to recognize the privilege with respect to some of the witnesses who have testified before the Committee. The attorney-client privilege exists as only a narrow exception to broad rules of disclosure. And the privilege exists only as a statutory creation, or by operation of State common law. No statute or Senate or House rule applies the attorney-client privilege to Congress. In fact, both the Senate and the House have explicitly refused to formally include the privilege in their rules. As the Clerk of the House stated in a memorandum opinion in 1985: ``attorney-client privilege cannot be claimed as a matter of right before a congressional committee.'' The attorney-client privilege is a rule of evidence that generally applies only in court; it does not apply to Congress which, under article I, section 5 of the Constitution, has the sole authority to ``determine the Rules of its Proceedings.'' The historical practice of congressional committees has borne this out. As Joseph diGenova, a special counsel and former U.S. attorney, has pointed out in an article in today's Wall Street Journal, as early as in the 19th century investigation of the Credit Mobilier scandal, Congress clearly refused to recognize attorney-client privilege. Indeed, in 1934, Senator Hugo Black, later one of the Supreme Court's great liberal justices, as chairman of a committee refused to recognize the privilege. As recently as 1986, a House subcommittee, Committee on Foreign Affairs, Subcommittee on Asian and Pacific Affairs, took pains to note that it need not recognize the privilege asserted by individuals involved in setting up a web of dummy corporations for the Marcos family. This body cannot simply take the President's claim of privilege against Congress at face value. To do so would be to surrender an important constitutional obligation. We can not compromise the ability of the Congress to conduct investigatory hearings. I ask my colleagues on the other side of the aisle to place partisan politics aside and to support the institutional integrity of this body. Second, the President has stated that he is merely asserting the type of attorney-client privilege that any American would claim with respect to his or her own attorney. I do not think that any of us would disagree that Mr. Clinton, as a private citizen dealing with personal legal troubles, has a claim of attorney-client privilege. That goes without saying. Certainly with regard to Mr. Kendall, his personal attorney. The problem, however, is that we do not have an ordinary citizen here, nor are we in a court of law. An ordinary citizen does not supervise the law enforcement resources of the Federal Government; an ordinary citizen does not appoint or fire U.S. attorneys; an ordinary citizen does not direct the FBI; an ordinary citizen does not control IRS or the RTC. An ordinary citizen is not in the position to interfere with the legitimate law enforcement investigation of his own activities. Indeed, President Richard Nixon did not assert attorney-client privilege. What would have happened if President Nixon had attempted to use the privilege to prevent White House counsel John Dean from testifying? That is essentially what is happening now. Even during the so-called Iran-Contra affair, Department of Justice lawyers concluded that the privilege could only be claimed by lawyers preparing for litigation, not preparing for congressional inquiries. Although the committee recognized attorney-client privilege for Oliver North and certain others, it did so only as a matter of discretion, which the committee has a right to do. Thus, if we are going to recognize any attorney-client privilege of the President, we do so at our discretion. Now, in general I would be willing to recognize the privilege when it validly exists. Here, however, it clearly does not, and so Congress must issue the resolution to enforce the subpoena. Courts recognize the privilege only for communications between a client and his attorney for the purpose of providing legal advice. It makes perfect sense that a person would be able to discuss legal matters with his or her lawyer that should not be revealed in court or to the opposing side. That is a well-established principle we can all agree with. I, as well as legal experts such as former U.S. Attorney General William Barr, former U.S. Attorney Joseph diGenova, and Prof. Ronald Rotunda fail to see how Mr. Clinton can assert privilege over the November 1993 meeting. It is hard for me to understand how advice about a private legal matter could be given at a meeting where neither the President nor the First Lady were present. An additional problem is that in addition to Mr. Kennedy and Mr. Kendall, other lawyers were at the meeting who represented the President in his official capacity. These White House lawyers had a duty to represent the American people as well as the Office of the President. It would be a violation of the basic ethical rules for Government lawyers to work on private legal matters for the President. A memo from the President's personal lawyers at Williams & Connolly concedes that each group of lawyers--the Government lawyers and the private lawyers--had a different client: the Government lawyers represented the Office of the President and the U.S. Government, the private lawyers represented the President in his personal capacity. Since they are representing different entities, they cannot share the same attorney-client privilege. The administration responds to this straightforward legal point by drawing an analogy to the common-interest privilege that is given to coconspirators who are permitted to share advice and information in preparing a joint defense. This analogy collapses upon close examination. The supposed common interest is that both clients represented at the November 5 meeting--the Clintons in their private capacity and the Office of the President--faced adversarial legal proceedings. But in this setting, the only possible adversary for the Clintons is the U.S. Government, and one group of lawyers at the November 5 meeting--those representing the Office of the President, represent the U.S. Government, and were on the payroll of the U.S. Government. Therefore, the U.S. Government and those lawyers who represented it could not possibly have a common interest with the Clintons in thwarting or defending against adversarial legal proceedings brought or potentially to be brought by the U.S. Government against the Clintons in their private capacities. In fact, the lawyers from the White House Counsel's Office represented the only possible adversaries of the President, and therefore there could not have been a common interest between the two groups of lawyers. In fact, there is no claim that Whitewater involves the Office of the President; the issues should not involve the Presidency at all. At the time that the Whitewater affair occurred, Mr. Clinton was not even President. It is hard to say that the Office of the Presidency was facing any adversary, with whom it would need to coordinate a common defense. The White House, in a memorandum provided to the special committee, claims that this was a meeting in which the President's former private attorney, Mr. Kennedy, was handing off information to his newly retained counsel, Mr. Kendall. The White House's lawyers claim that they were serving necessary and important public interests at the meeting, and that they were at the meeting to ``impart information that had been provided to them in the course of official duties.'' What information was imparted? Surely the transmission of Government information to private attorneys is not protected by the attorney- client privilege. I am deeply troubled by the fact that White House lawyers were present at this meeting. After all, these lawyers do not represent the President in his personal capacity. I am concerned about the possibility that Government lawyers, who have an obligation to the American people, as well as to the President, may have passed information to the Clinton's personal lawyers that the White House Counsel's Office may have gained through their official capacities. Is it the proper role of Government officials to act as messengers for Mr. Clinton in his private capacity to the President's private lawyers? These lawyers were discussing Whitewater matters that were being investigated by the Department of Justice and the RTC--legal matters that would place Mr. Clinton in an adverse position to the U.S. Government. Essentially, Mr. Clinton is claiming attorney-client privilege over a meeting in which Government lawyers may have been involved in a strategy session to frustrate investigations conducted by other parts of the executive branch. I hope that nothing occurred during the meeting that would in any way sully the Office of the President. But to find out whether anything illegal occurred, the President must disclose the notes. It is also likely that even if a privilege may have existed, it was waived. After all, Bruce Lindsey, who did not serve in the White House Counsel's Office at this time, but rather served in the White House Personnel Office, was at the meeting. He was not legal counsel to the President in either a personal or a professional capacity. To say that he represented the Office of the President as legal counsel at this meeting is dubious at best. Information discussed in his presence thus would constitute a waiver of the privilege. Were this legal fiction to survive judicial review, virtually any discussions or conspiracies involving lawyers could be claimed as privileges. In order to avoid the brewing constitutional confrontation that will arise when this issue goes to court, I call upon the President to release the notes of the November 5 meeting now. It is in the best interests of the President, of the Congress, and, indeed, of the American people, for all the information concerning Whitewater to come out into the open. As Justice Louis Bradeis put so succinctly: ``Sunlight is the best of disinfectants.'' By being forthcoming with the American people, President Clinton can begin to put Whitewater behind this administration. While we must, in my opinion, vote today to enforce the subpoena, I would hope that we will not ultimately have to resolve this dispute in court. I would hope that the President would do as he has long promised: fully comply with the investigation into the Whitewater affair. Having said all of that, again I note that this has not been a waste of time--the work these two leaders on the committee have done, the work the special counsel has done which has resulted in five indictments, nine guilty pleas, and the imprisonment of one of our top Justice Department officials. I think those facts alone justify the work that the distinguished chairman of this committee has been trying to do. So I want to commend him for the work he is doing, and I want to commend all members of committee for the attention that they have given to this work. And I hope that some of the comments that I have made will help on this matter. I yield the floor.

Mr. HATCH. Without losing my right to the floor, and I ask unanimous consent in that regard.

Mr. HATCH. I do not think I will be much more than 15 minutes. Pretty close to 3 o'clock, maybe a little less than that.

Mr. HATCH. Under the same unanimous-consent request.

Mr. HATCH. I do not believe I will be very long, and I am happy to yield to my distinguished colleague, but I ask unanimous consent that he be permitted to speak immediately following my remarks, which should not be too long.

Mr. HATCH. I appreciate my colleague. I am happy to yield to him.

Mr. HATCH. Madam President.

Mr. HATCH

Mr. HATCH. Mr. President, I am joined by Senators Harkin, Craig, and Bennett in introducing legislation that will assist farmers' cooperatives in purchasing the refining and processing facilities that receive their goods and lower the cost of bringing agricultural products to market. The bill extends certain nonrecognition of gain benefits contained in the Internal Revenue code to owners of agricultural product refining and processing facilities if they sell to a farmers cooperative. Currently, the Tax Code provides various incentives for the promotion of economic activity and growth. For example, section 1042 grants employees participating in an Employee Stock Ownership Plan [ESOP] and worker-owned cooperatives the opportunity to acquire an ownership interest in certain corporate stock. This has enabled employees and members of worker-owned cooperatives to participate as owners of the business. This Congress, as have previous Congresses recognizes that economic conditions are changing as advancing technology has transformed our business climate into one that is more dependent on capital investment for growth and profits. Participatory ownership at all levels is important in spreading the benefits of capital ownership from the few to the many. The bill would provide farmers who form farmers cooperatives the opportunity for an ownership interest in the processing and marketing of their products. Owners of a refining or processing facility would be able to receive nonrecognition treatment on any capital gain if the facility is sold to a farmers cooperative that did at least 50 percent of its business with the refining or processing facility, so long as the owners reinvest the sales proceeds into similar property. Mr. President, farmers generally own their own businesses. Some have a few acres of land and some have developed large operations. Over the years, farmers cooperatives have been formed to take advantage of economies of scale. These farmers cooperatives bring farmers together to sell their agricultural products to someone else who refines or processes them and sells them to the public. The chain in agricultural marketing includes both the farmer and the refiner or processor. Each additional link in the chain can add increasing costs to the final sale of these agricultural products. If the farmers, through the combined power of a farmers cooperative, could acquire ownership in the refiner or processor that finishes and markets their products, the driving need for profits at both levels of the chain would be lessened. By combining their business interest, an additional level of overhead and profitability could be greatly reduced. The net result would be lower costs to the consuming public and a healthier farm economy. America's farmers have seen many changes to their industry over the past few years. It is tough to be a farmer. Price changes, demands for new machinery, changes in agricultural demand, the unpredictable weather, and economic hardship have shaken the farming industry. This bill will give farmers a chance for more stability and control in the future marketing of their products. Of course, not all farmers will take advantage of these benefits. However, those that do will hopefully reap greater benefits from a more integrated agricultural business. Representatives Pat Roberts, chairman of the House Committee on Agriculture, Charles Stenholm, and others introduced similar legislation in the House as H.R. 2676. This bill has bipartisan support. It is timely assistance for our Nations farmers' cooperatives. I urge my colleagues in the Senate on both sides of the isle to support this initiative for our Nation's farming industry. This bill has been endorsed by the National Council of Farmers' Cooperatives. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I am joined by Senators Harkin, Craig, and Bennett in introducing legislation that will assist farmers' cooperatives in purchasing the refining and processing facilities that receive their goods and lower the cost of bringing agricultural products to market. The bill extends certain nonrecognition of gain benefits contained in the Internal Revenue code to owners of agricultural product refining and processing facilities if they sell to a farmers cooperative. Currently, the Tax Code provides various incentives for the promotion of economic activity and growth. For example, section 1042 grants employees participating in an Employee Stock Ownership Plan [ESOP] and worker-owned cooperatives the opportunity to acquire an ownership interest in certain corporate stock. This has enabled employees and members of worker-owned cooperatives to participate as owners of the business. This Congress, as have previous Congresses recognizes that economic conditions are changing as advancing technology has transformed our business climate into one that is more dependent on capital investment for growth and profits. Participatory ownership at all levels is important in spreading the benefits of capital ownership from the few to the many. The bill would provide farmers who form farmers cooperatives the opportunity for an ownership interest in the processing and marketing of their products. Owners of a refining or processing facility would be able to receive nonrecognition treatment on any capital gain if the facility is sold to a farmers cooperative that did at least 50 percent of its business with the refining or processing facility, so long as the owners reinvest the sales proceeds into similar property. Mr. President, farmers generally own their own businesses. Some have a few acres of land and some have developed large operations. Over the years, farmers cooperatives have been formed to take advantage of economies of scale. These farmers cooperatives bring farmers together to sell their agricultural products to someone else who refines or processes them and sells them to the public. The chain in agricultural marketing includes both the farmer and the refiner or processor. Each additional link in the chain can add increasing costs to the final sale of these agricultural products. If the farmers, through the combined power of a farmers cooperative, could acquire ownership in the refiner or processor that finishes and markets their products, the driving need for profits at both levels of the chain would be lessened. By combining their business interest, an additional level of overhead and profitability could be greatly reduced. The net result would be lower costs to the consuming public and a healthier farm economy. America's farmers have seen many changes to their industry over the past few years. It is tough to be a farmer. Price changes, demands for new machinery, changes in agricultural demand, the unpredictable weather, and economic hardship have shaken the farming industry. This bill will give farmers a chance for more stability and control in the future marketing of their products. Of course, not all farmers will take advantage of these benefits. However, those that do will hopefully reap greater benefits from a more integrated agricultural business. Representatives Pat Roberts, chairman of the House Committee on Agriculture, Charles Stenholm, and others introduced similar legislation in the House as H.R. 2676. This bill has bipartisan support. It is timely assistance for our Nations farmers' cooperatives. I urge my colleagues in the Senate on both sides of the isle to support this initiative for our Nation's farming industry. This bill has been endorsed by the National Council of Farmers' Cooperatives. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to draw my colleagues' attention to a recent proclamation made by President Gordon B. Hinckley on behalf of the First Presidency and Council of the Twelve Apostles of the Church of Jesus Christ of Latter-day Saints. I believe this proclamation to be especially timely during this holiday season. The holidays often afford us the opportunity to reestablish family bonds. I believe President Hinckley's words have relevance for all Americans and will help each of us reaffirm our commitment to the primacy of the family as the basis for strong communities and to the sanctity of marriage as the foundation for healthy families. I hope that the core principles expressed within this proclamation will continue to guide and strengthen us during this holiday season and into the coming year. Mr. President, I ask unanimous consent that the proclamation be printed in the Record.

Mr. HATCH

Mr. HATCH. I thank you, Mr. President. Mr. President, this body now debates again whether we support the deployment of U.S. military forces into a European theater of war. We have debated this proposition twice before in this century. In World War I, we sent our troops to engage in ``the war to end all wars.'' After the slaughter, after the victory, America withdrew from the European stage; and, before the century reached mid-point, we found ourselves again debating whether it was the U.S. role to engage in European wars. The world was transformed by our historic decision to enter that war. The world was transformed by our decision after the victory to remain engaged; and, for most of the rest of the century, this country stood for the expansion of freedom and the containment of tyranny. Perhaps some of us forgot that one of the reasons we were so motivated after World War II was because this nation had been horrified by the scenes of depravity under the Third Reich and the Japanese empire. When we saw the horrors of the concentration camps, we declared, with commitment, ``never again.'' Generations of Americans raised after that great allied victory truly believed that never again would we tolerate genocide in Europe. The very notion of civilization was redefined to include this idea--until the war broke out in Bosnia. For almost 4 years, we have witnessed the horrors of ``ethnic cleansing'' in central Europe. Up until a few months ago, we regularly saw massacres of innocents, most often Muslims. ``Never again,'' came back to haunt us. ``Never again,'' became the hollow cry at the end of a century, taunting us that we could never assume progress from barbarity. Many of us in this body believed we had to act. While we accepted that we could not make a persuasive case that U.S. troops needed to enforce or protect a vital interest, we believed that the world's remaining superpower had the power, the means, and the moral responsibility, to act. We voted, again and again, to lift the immoral arms embargo on the young Bosnian state, which was largely unarmed, and was the target of the barbarians of ``ethnic cleansing.'' This summer, we passed legislation, with a strong bipartisan 69 votes, to lift the embargo. The Administration, proclaiming concern for the Bosnians, argued that lifting the arms embargo would cause the Serbs to attack the eastern enclaves of Zepa and Srebrenica. For this grotesquely false reason--a reason bloodily refuted by the massacres in Srebrenica that occurred anyway--the Administration argued that we could not let the victims defend themselves. The Administration argued--again and again--that lifting the embargo would spread the war and would require the use of thousands of U.S. forces to extract the U.N. and allied forces. And so, the Administration argued that lifting the embargo was not an acceptable course of action. Now, less than a month after the signing of the Dayton Accord, the Administration is deploying United States troops to Bosnia to implement the military annex of that accord. There is a temporary truce in Bosnia. The killing has mostly stopped. The ethnic cleansing has not. And, the administration believes, most sincerely, that the deployment of the NATO Implementation Force, now known as IFOR, will, in the words of President Clinton, ``help create a secure environment so that the people of Bosnia can return to their homes, vote in free elections, and begin to rebuild their lives.'' The administration expects this to take approximately 1 year. Mr. President, I respect the President's prerogative in foreign policy. I believe this is a principle we must respect if we are to convey the proper influence and power of this great Nation overseas. I supported this principle under previous Presidents, and I strongly objected when the Members of the opposing party in this body sought to frustrate Presidents Reagan and Bush. I was disappointed when this body passed the resolution supporting President Bush's decision to deploy to Iraq by merely 52 votes. We had a clear vital interest at stake then. And, had we waited, we now know that our troops would have been subject to the weapons of mass destruction Saddam Hussein was on the verge of using. Mr. President, I respect the principle of the President's prerogative in making foreign policy, but I have grave reservations--grave reservations--about the Bosnia policy on which the President is embarking. But, I wish to make one point exceedingly clear: I believe that the Congress must show our support for the U.S. military. This Senator will always support American troops abroad. I have recently learned that a Utah reserve unit will be among those troops deployed to this region, and several other Utah reservists have been put on alert. There is no way that this Senator will not do anything and everything to make sure that those troops have the backing they need in terms of equipment and materiel and moral support for what they do to serve our country's objectives. But, appreciation and support for how well our troops carry out our policy does not mean we cannot question the policy itself as well as engage in some retrospective about U.S. policy. I wish the President had taken a different approach on Bosnia 3 years ago. Candidate Clinton said he would lift the arms embargo. As I have said, I believe it was immoral to maintain an arms embargo against Bosnia while it was subjected to slaughter by a heavily armed Yugoslavia. I must say that, with his record, there is a credibility question when the President asserts it is the ``right'' thing to now send troops to Bosnia. I believe that the Atlantic alliance is the most successful military alliance in the history of the world. The major democracies of the world held together throughout the cold war, and Europe remained secure. The world is still a dangerous place after the cold war, and I believe that NATO must remain relevant. I support the enlargement of the alliance, because I believe the alliance promotes political values as well as enforces security, and I wish to support the democracies of central Europe. But NATO's credibility has suffered greatly during the Bosnia debacle. Tied by the dual key with the United Nations, the greatest military alliance was ineffective while genocide occurred. NATO stood by while cities and towns were shelled, while humanitarian convoys were turned back, while helicopters violated a no-fly zone. A NATO F-16 was shot out of the sky this summer by Serbs using Russian military hardware. The Administration argues that NATO credibility is at stake. But I must ask: What happens if the I-For goes to Bosnia, and, after 1 year and the departure of I-For, the parties return to war? Will NATO be more credible for having gone to Bosnia with great fanfare, but having returned without success, or worse, with casualties we cannot justify? This administration proclaims that this is a chance for peace in Bosnia. I do not doubt the President's sincerity. And I do not doubt that the administration is motivated by noble notions. I fear, however, that its ideals are immature. Peace is not the absence of conflict, Mr. President. We will always have conflict. Peace, I believe, is the management of conflict, the management of conflict so that it does not escalate into violence and war. And, when I look at the Dayton Accord, Mr. President, and the record of this administration, I fear that many issues about managing the conflict remain unaddressed. The administration has spoken about a clear exit strategy, partly because we in the Congress have demanded it. But if we do not have a vision of how to manage the conflict after our mission expires, I see very little reason to go in at all. We need a post-exit strategy, Mr. President, and I've heard very little of one. A post-exit strategy--and the success of the I-For mission--depends on a number of factors. I believe these include, but are not limited to: First, ensuring that the Bosnian Serbs do not pursue territorial gains beyond those they have won in this ignominious partition known as the Dayton Accord; second, completing the agreement between Croatia and Serbia over Eastern Slavonia; third, building and maintaining a cooperative relationship between the Bosnians and the Croatians; and, most importantly, fourth, maintaining the political and military viability of the Bosnian state. Elements within the Bosnian Serbs have been proclaiming against the Dayton Accord since the day they were signed. Demonstrations have been staged almost every day. Are we to proceed while these rogue elements threaten, with arms, to ignore the accord? The administration tells us that it will rely on President Milosevic of Serbia to control these elements. President Milosevic has been very cooperative and effective, we are told. President Milosevic, I recall, was the instigator of the war against Bosnia and has reneged on his promises on numerous occasions over the past 4 years. Perhaps Milosevic has converted--and I believe in conversion--but I have doubts about the sincerity of those who convert after a mild NATO bombing campaign. Mr. President, I still do not know what the administration intends to do if our U.S. forces are subject to mortar attacks from rogue elements. For example, if we're attacked from a populated area by rogue elements that move freely within it, how will we respond? With a phone call to Belgrade? How does President Clinton plan to hold President Milosevic accountable for keeping the Bosnian Serbs in line with the accord? I am also greatly concerned about the agreement between Croatia and Serbia over eastern Slavonia. We should recall the brutal occupation of that Croatian territory. We should recall the pictures of the city of Vukovar, left a smoking rubble by the Serbs, complete with mass graves. Since then the Serbian Army has occupied the area, cleansed it, and extracted its natural resources. The Croats and Serbs signed an agreement just before the Dayton Accord to return eastern Slavonia to Croatia. The agreement allows for 1 year to revert the territory to Croatia, but it has a 1 year extension clause, to be exercised by either party. The implementation of the international force to monitor the territory is already stalling. I predict here that the Serbs will ask for that 1 year extension; and, 1 year from now, Eastern Slavonia will still be occupied by the forces of Belgrade. It is a powder keg. If we do not ensure the peaceful transfer of that occupied territory, there will be a war within 2 years, and that war will spread to Bosnia, and the I-For mission, with its casualties, will have been for naught. Mr. President, I am deeply concerned that the administration has not focused on this issue. Mr. President, we need to do more to strengthen the ties begun with the Washington Agreement last year to build the Croat-Muslim relationship. I have little expectation that the Serbian entity will ever participate in the unitary government of Bosnia-Hercegovina. But without the Croats and Muslims cooperating, Mr. President, we may end up participating in a three-way partition conducted by ethnic cleansing. Since the beginning of this war, I have argued for a policy of lift- and-strike. Lift the arms embargo on Bosnia and Croatia, and allow them to defend themselves against Serbian aggression. Use air power to dissuade the aggressors while the victims arm themselves. We saw a version of lift-and-strike this summer, when the Croatian Army, strong again, recaptured the Krajina and coordinated with the Bosnians to deliver military defeats to the Serbs. Our NATO forces went into the skies in August and September to force the Serbs to accept a choice: more military defeats or a negotiated settlement. Lift-and- strike worked, Mr. President, as we said it would. Lift-and-strike was posited on the premise that a balance of power on the ground would effect a real peace, a peace based on the cessation of violence through deterrence. Now that the President has decided to deploy the I-For, I believe that it is essential that we ensure that Bosnia is able to defend itself. That, Mr. President, is the only way that we can guarantee that the Bosnians shall not be subject to more ethnic cleansing, to more deadly attacks--unless we plan to keep I-For there forever. Mr. President, if we are not absolutely dedicated to arming the Bosnian Government, we should be realistic enough to know that the war will reignite shortly after IFOR departs. And then, Mr. President, we'll ask, what was the point? For what did NATO expend its credibility? For what did America risk its sons and daughters? A decent interval to another war is not an acceptable answer, Mr. President. So 5 years before the end of this bloody century, we debate again sending our troops to Europe. We didn't need to come to this point. The Dayton Accord is abstract, the realities on the ground brutal and complicated. We didn't need to come to this point. But America has given its word, and credibility of that word, we are told, is at stake. Let me preface my final comments by saying that I am equally concerned about America's standing abroad and about maintaining our leadership in NATO. But, our credibility is more threatened, I believe, by pursuing a mission with guaranteed casualties and uncertain goals, than it is by telling our allies now that we do not support this policy, this deployment, and that we will arm the Bosnians until they can defend themselves. But if this policy will be implemented--and already our troops are arriving in Bosnia--we must try to improve it. If we are to effect any positive influence here, Mr. President, we must insist that we arm the Bosnian government so that when we leave, we are not a few steps ahead of the next conflagration. Therefore, Mr. President, I support the Hutchison-Inhofe resolution opposing the President's decision to deploy, but strongly support the Dole-McCain resolution commending U.S. troops and setting conditions for the deployment which, I hope, will increase the possibility that this mission will not have been a waste of blood, treasure, and, yes, credibility. Mr. President, I commend the majority leader for his statesmanship in recognizing that President Clinton is our President, that he does have a right to put these troops there, a constitutional right, and once they are there, we have an obligation, as patriots, to stand with them and to help them. So I will support the Dole-McCain resolution, but I also support the Hutchison-Inhofe resolution as well. Mr. President, this is a serious thing. I have been over that land. I have been over that territory. I have met with people on all sides of these issues. I have read the histories of the last 600 years of that area. And I have to tell you, I think putting our young people there is a tragic mistake. But once they are there, I am going to do everything in my power to support them. Mr. President, I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the full Committee on Environment and Public Works be granted permission to conduct a hearing Wednesday, December 13, at 9:30 a.m., Hearing Room (SD-406), with respect to the reauthorization of the Clean Water Act on municipal issues.