Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on Wednesday, December 13, 1995 at 2 p.m. to hold a closed hearing regarding intelligence matters.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet on Wednesday, December 13, 1995, at 10 a.m. in open session, to consider the nomination of Mr. H. Martin Lancaster for appointment as Assistant Secretary of the Army for Civil Works.

Mr. HATCH. Mr. President, I ask unanimous consent that the Subcommittee on Forests and Public Land Management of the Committee on Energy and Natural Resources be granted permission to meet during the session of the Senate on Wednesday, December 13, 1995, for purposes of conducting a subcommittee hearing which is scheduled to begin at 2:30 p.m. The purpose of this hearing is to consider S. 901, the Water Recycling Projects; S. 1013, the Garrison Diversion Unit Project; S. 1154, the Fort Peck Rural County Water Supply System Act of 1995; S. 1169, the McCall Area Wastewater Reclamation and Reuse Project, and S. 1186, the Flathead Irrigation and Power Project.

Mr. HATCH

Mr. HATCH. Mr. President, today I introduce a bill that would grant Federal probation and pretrial services officers authority to carry firearms, when approved by the appropriate district court, under rules prescribed by the Administrative Office of the U.S. Courts. To add that new authority, the bill amends 18 U.S.C. 3603, which sets out the duties of probation officers, and 18 U.S.C. 3154, which establishes the functions of pretrial services officers. The change will permit those officers to carry firearms as they perform their important and frequently dangerous duties. State law currently governs whether Federal probation and pretrial services officers may carry weapons; that law is inconsistent from State to State. Research by the Administrative Office of the U.S. Courts shows that only three States give specific authority to Federal probation and pretrial services officers to carry weapons. Forty-four States authorize Federal probation officers to carry firearms based either on statutory authority given to State probation officers or peace officers, or on State attorney general opinions. Although some of those States similarly authorize Federal pretrial services officers to carry firearms, at least 14 of them have neglected to extend that authority to those officers. More important, certain States prohibit Federal probation and pretrial services from carrying weapons even where the officer has court approval to do so. Officers in those jurisdictions are left vulnerable to serious harm or death. A 1993 study undertaken by the Federal Probation and Pretrial Officers Association revealed that, in the Federal and local systems, 1,818 serious assaults and 792 attempted assaults against probation and pretrial services officers occurred between 1980 and 1992. The study acknowledges that those numbers probably understate the actual figures since some jurisdictions did not respond the association's study. In my view, the risks faced by Federal probation and pretrial services officers cannot be overemphasized. These officers risk their safety and their lives every day, often supervising violent offenders in situations that place them and others at risk of bodily harm. We should ensure that, wherever those officers are, they are authorized to carry a firearm. Not only does this bill address problems faced by officers who work out of jurisdictions in which they are not permitted to carry a firearm, but it addresses difficulties faced by officers who must cross State lines in the performance of their duties. Under current law, even officers who are authorized under one State's laws to carry weapons may still run afoul of another State's laws when they cross State lines. Without a Federal statute authorizing officers to carry firearms, they may be acting illegally when they cross State lines to perform their duties. Many Federal officers supervise offenders near a State border and must travel interstate to carry out their duties. An offender may have a nearby job in an adjacent State, for example, and the officer may need to travel to the job site to verify the offender's employment. Problems may also arise for officers who live in one State and work in another. For instance, officers who live in Wisconsin and work in Minnesota are not allowed to obtain a gun permit from Minnesota. Similar situations arise in other States. Officers may be unable to obtain licenses from the State in which they reside even though they may work in a neighboring State that permits some of it residents to carry firearms. These officers work in inherently dangerous environments. The Federal Probation and Pretrail Officers Association wrote to me on September 15, 1995: Under enhanced supervision practices, we supervise in the field, in the most crime-infested areas of urban environments as well as in the most remote rural areas of urban environments as well as in the most remote rural areas. [I]f enacted, [the bill] would give all officers a significant measure of support and protection which they certainly deserve. I wholeheartedly agree. This bill will correct the current intolerable situation. The security of Federal probation and pretrial services officers should not be left to the vagaries of State law. Of course, these Federal officers will be fully trained and closely supervised in their use of firearms. Under the bill, probation and pretrial services officers will be permitted to carry firearms only pursuant to regulations promulgated by the Director of the Administrative Office of the U.S. courts. The Administrative Office has informed me that these regulations would include extensive training and safety requirements, and that most of them are already in effect for those officers authorized to carry firearms. Mr. President, I ask unanimous consent that the full text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, today I introduce a bill that would grant Federal probation and pretrial services officers authority to carry firearms, when approved by the appropriate district court, under rules prescribed by the Administrative Office of the U.S. Courts. To add that new authority, the bill amends 18 U.S.C. 3603, which sets out the duties of probation officers, and 18 U.S.C. 3154, which establishes the functions of pretrial services officers. The change will permit those officers to carry firearms as they perform their important and frequently dangerous duties. State law currently governs whether Federal probation and pretrial services officers may carry weapons; that law is inconsistent from State to State. Research by the Administrative Office of the U.S. Courts shows that only three States give specific authority to Federal probation and pretrial services officers to carry weapons. Forty-four States authorize Federal probation officers to carry firearms based either on statutory authority given to State probation officers or peace officers, or on State attorney general opinions. Although some of those States similarly authorize Federal pretrial services officers to carry firearms, at least 14 of them have neglected to extend that authority to those officers. More important, certain States prohibit Federal probation and pretrial services from carrying weapons even where the officer has court approval to do so. Officers in those jurisdictions are left vulnerable to serious harm or death. A 1993 study undertaken by the Federal Probation and Pretrial Officers Association revealed that, in the Federal and local systems, 1,818 serious assaults and 792 attempted assaults against probation and pretrial services officers occurred between 1980 and 1992. The study acknowledges that those numbers probably understate the actual figures since some jurisdictions did not respond the association's study. In my view, the risks faced by Federal probation and pretrial services officers cannot be overemphasized. These officers risk their safety and their lives every day, often supervising violent offenders in situations that place them and others at risk of bodily harm. We should ensure that, wherever those officers are, they are authorized to carry a firearm. Not only does this bill address problems faced by officers who work out of jurisdictions in which they are not permitted to carry a firearm, but it addresses difficulties faced by officers who must cross State lines in the performance of their duties. Under current law, even officers who are authorized under one State's laws to carry weapons may still run afoul of another State's laws when they cross State lines. Without a Federal statute authorizing officers to carry firearms, they may be acting illegally when they cross State lines to perform their duties. Many Federal officers supervise offenders near a State border and must travel interstate to carry out their duties. An offender may have a nearby job in an adjacent State, for example, and the officer may need to travel to the job site to verify the offender's employment. Problems may also arise for officers who live in one State and work in another. For instance, officers who live in Wisconsin and work in Minnesota are not allowed to obtain a gun permit from Minnesota. Similar situations arise in other States. Officers may be unable to obtain licenses from the State in which they reside even though they may work in a neighboring State that permits some of it residents to carry firearms. These officers work in inherently dangerous environments. The Federal Probation and Pretrail Officers Association wrote to me on September 15, 1995: Under enhanced supervision practices, we supervise in the field, in the most crime-infested areas of urban environments as well as in the most remote rural areas of urban environments as well as in the most remote rural areas. [I]f enacted, [the bill] would give all officers a significant measure of support and protection which they certainly deserve. I wholeheartedly agree. This bill will correct the current intolerable situation. The security of Federal probation and pretrial services officers should not be left to the vagaries of State law. Of course, these Federal officers will be fully trained and closely supervised in their use of firearms. Under the bill, probation and pretrial services officers will be permitted to carry firearms only pursuant to regulations promulgated by the Director of the Administrative Office of the U.S. courts. The Administrative Office has informed me that these regulations would include extensive training and safety requirements, and that most of them are already in effect for those officers authorized to carry firearms. Mr. President, I ask unanimous consent that the full text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. I suggest the absence of a quorum.

Mr. HATCH. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HATCH. Mr. President, the argument that authorizing the prohibition of flag desecration violates the first amendment is of recent vintage. I have remarked before that the Johnson and Eichman decisions owe far more to evolving theories of jurisprudence than to the first amendment itself. I think the Members of the First Congress who voted for the first amendment would be astonished to learn, two centuries later, that they had forbidden Congress from prohibiting flag desecration. It is even more astonishing to believe that those who enacted the 14th amendment's due process clause, through which the first amendment's free speech guarantee has been applied to the States, believed they were forbidding the States from protecting Old Glory. Indeed, during the Civil War, Congress awarded the Congressional Medal of Honor to Union soldiers who saved the American flag from falling into Confederate hands. That Members of Congress who awarded the Medal of Honor for such heroics would also strip States of the right to protect the flag from those who would physically desecrate it seems to me to be far-fetched. As I have mentioned earlier, as recently as 1969, even Chief Justice Earl Warren, whose very name is an eponym for judicial activism among conservatives, wrote: ``I believe that the States and the Federal Government do have the power to protect the flag from acts of desecration and disgrace * * *'' (Street v. New York, 394 U.S. 576, 605 (1969) (Warren, C.J., dissenting)). Liberal Justice Abe Fortas agreed. And first amendment absolutist Justice Hugo Black was incredulous at the thought that the Constitution barred laws protecting the flag: ``It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American flag an offense.'' (394 U.S. at 610). That five Members of the Supreme Court have now said otherwise does not make their constitutional interpretation in this case wise or persuasive, any more than its decisions in the last century that Dred Scott should be returned to slavery, or that separate-but-equal treatment of the races passes muster under the equal protection clause made sense. The pending amendment overturns the Johnson and Eichman decisions and clearly establishes in the text of the Constitution the power for Congress to protect the flag from physical desecration that those two decisions erroneously took away. It only addresses the Court's misguided, recent flag jurisprudence. It does nothing else; it does not disturb any other theories the Court has used to construe the Constitution. The American flag deserves legal protection regardless of the number of flag desecrations in recent years The Clinton administration testified that, in light of what it refers to as ``* * * only a few isolated instances [of flag burning], the flag is amply protected by its unique stature as an embodiment of national unity and ideals.'' [Testimony of Mr. Dellinger, June 6, 1995 at p. 1] I find that comment simply wrong. First, aside from the number of flag desecrations, our very refusal to take action to protect the American flag clearly devalues it. Our acquiescence in the Supreme Court's decisions reduces its symbolic value. As a practical matter, the effect, however unintended, of our acquiescence equates the flag with a rag, at least as a matter of law, no matter what we feel in our hearts. Anyone in this country can buy a rag and the American flag and burn them both to dramatize a viewpoint. The law currently treats the two acts as the same. How one can say that this legal state of affairs does not devalue the flag is beyond me. This concern is shared by others. Justice John Paul Stevens said in his Johnson dissent: . . . in my considered judgment, sanctioning the public desecration of the flag will tarnish its value. That tarnish is not justified by the trivial burden on free expression occasioned by requiring that an available alternative mode of expression--including uttering words critical of the flag--be employed. [491 U.S. at 437]. Prof. Richard Parker of Harvard Law School testified after Mr. Dellinger, and in my view, effectively rebutted his argument. If it is permissible not just to heap verbal contempt on the flag, but to burn it, rip it and smear it with excrement--if such behavior is not only permitted in practice, but protected in law by the Supreme Court--then the flag is already decaying as the symbol of our aspiration to the unity underlying our freedom. The flag we fly in response is no longer the same thing. We are told . . . that someone can desecrate ``a'' flag but not ``the'' flag. To that, I simply say: Untrue. This is precisely the way that general symbols like general values are trashed, particular step by particular step. This is the way, imperceptibly, that commitments and ideals are lost. Second, as a simple matter of law and reality, the flag is not protected from those who would burn, deface, trample, defile, or otherwise physically desecrate it. Third, whether the 45-plus flags whose publicly reported desecrations between 1990 and 1994 of which we are currently aware, and the ones which were desecrated so far this year, represent too small a problem does not turn on the sheer number of these desecrations alone. When a flag desecration is reported in local print, radio, and television media, potentially millions, and if reported in the national media, tens upon tens of millions of people, see or read or learn of them. How do my colleagues think, Rose Lee, for example, feels when she sees a flag desecration in California reported in the media? The impact is far greater than the number of flag desecrations. Physical desecration of the American flag has occurred every year since the Johnson decision. I do not believe there is some threshold of flag desecrations during a specified time period necessary before triggering Congressional action. Certainly, critics of the amendment cite no such threshold. If it is right to empower the American people to protect the American flag, it is right regardless of the number of such desecrations in any 1 year. And no one can predict the number of such desecrations which may be attempted or performed in the future. If murder rarely occurred, would there not be a need for statutes punishing it? Espionage prosecutions are not everyday occurrences. Treason prosecutions are even more infrequent, but treason is defined in the Constitution itself and no one suggests we repeal that provision or treason statutes. Our distinguished colleague from Alabama, Senator Heflin, also responds to the criticism that there are too few flag desecrations to justify an amendment by noting: ``in my judgment, this is the time, in a cool, deliberate, calm manner, and in an atmosphere that is not emotionally charged to evaluate values. I think that is something that makes it appropriate to do it now. I [believe] that there have to be in this Nation some things that are sacred.'' I think my friend from Alabama is absolutely right. Mr. President, I believe our time is about all up, and I would be happy to yield it back unless somebody wants to speak.

Mr. HATCH. Mr. President, I listened to my friend and colleague. And there are very few people I have as much admiration for as I do the distinguished Senator from Kentucky. I think he is a gracious man and wonderful Senator. He has led the fight on a lot of very good issues. The McConnell amendment has two fundamental flaws that should convince anyone who supports Senate Joint Resolution 31 or who wants to protect the flag to vote to reject the Senator's amendment. First, the Supreme Court will certainly strike down the statute as contrary to its decisions in Johnson and Eichman. Second, the McConnell amendment is so narrow that it will offer virtually no protection for the flag. The McConnell amendment would not even have punished Gregory Johnson, which is the cause celebre case that is really involved here, among others. What message does that send about our society's willingness to defend its values? The McConnell amendment's primary fault is that the Supreme Court, following its mistaken Johnson and Eichman decisions, will strike it down as a violation of the first amendment. Both Johnson and Eichman make clear that neither Congress nor the States may provide any special protection for the flag. Because the Court views the flag itself as speech, any conduct taken in regard to the flag constitutes protected expression as well. As Prof. Richard Parker of Harvard University Law School concludes: ``Since the flag communicates a message--as it, undeniably, does--any effort by government to single out the flag for protection must involve regulation of expression on the basis of the content of its message.'' So a careful reading of Eichman bears this point out. Even though the 1989 act was facially content-neutral, the Court found that Congress intended to regulate speech based on its content. The McConnell amendment is not going to fool anyone, least of all the Supreme Court. Its purpose is clear: to protect the flag from desecration in certain, narrow instances. Unfortunately, the Supreme Court has said that the American people cannot do this, something they had a right to do for almost 200 years, a right they had exercised in 48 States and in Congress up to 1989, with the Johnson decision. Do we need a third Supreme Court decision striking down a third flag protection statute in just 6 years before the Senate gets the message? Even if the Court were to find that the McConnell amendment was not intended to protect the flag from desecration, it will still find it unconstitutional. Under its decision in R.A.V. versus City of St. Paul, the Court will strike down any statute that draws content-based distinctions, even if, as in R.A.V., those distinctions are made within a category of unprotected speech. Thus, even though fighting words or words that incite a breach of the peace are unprotected, Congress cannot prohibit only certain types of speech within these areas of unprotected speech. However, it is this that the McConnell statute impermissibly does. In fact, the Court in R.A.V. made clear that this doctrine would be applied to any flag protection statute. As Justice Scalia wrote for the Court: ``Burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not.'' Since the McConnell amendment is not a law of general applicability, but instead is one that singles out the flag for protection, it will be held to be unconstitutional by the Court. Mr. President, the McConnell amendment is so narrow that it would not even have punished Gregory Johnson for his desecration of the flag. And in Johnson--this is a pretty good representation of what Johnson and others did. In Johnson, the Court held that unless there was evidence that a riot ensued, or threatened to ensue, one could not protect the flag under the breach of the peace doctrine. Small protection, that. Do we really want to limit protection of the flag only to those narrow instances when burning it is likely to breach the peace? I think not. Even if sections (b) and (c) of the McConnell amendment could survive constitutional scrutiny, which I do not believe they can, they are no substitute for real flag protection. Only those who steal and destroy flags that belong to the United States, or only those who steal the flag from others and destroy it on Government property, can be punished under the McConnell amendment. Gregory Johnson did not steal his flag from the United States; it was stolen from a bank building. He did not burn his stolen flag on Federal property. He burned it in front of city hall. If the amendment would not punish Gregory Johnson, who will it punish? Adoption of the McConnell amendment will amount to the Government's unintended declaration of open season on American flags. Just do not burn it to start a riot. Just do not steal if from the Government. And just don't steal it and then burn it on Government property. Otherwise, the McConnell amendment declares, flag burners are free to burn away, just like they did on this occasion, represented by this dramatic photograph that is true. Mr. President, I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I would to announce that the Office of National Drug Control Policy has just confirmed that Director Brown will make an announcement at 4:15 today regarding his future career plans. It has been widely reported that he will take a sociology professorship at Rice University in Houston. I wish him well. He is a very fine man. He was a good selection for this position. I believe he has given his heart and soul to it to the extent that he could. He has done a credible job. But I have to say the administration has barely paid any attention to him and his efforts on this issue. Unfortunately, under this administration drug control policy is in utter disarray. The number of 12- to 17-year-olds using marijuana has increased from 1.6 million in 1992 to 2.2 million in 1994. The category of ``recent marijuana use'' increased a staggering 200 percent among 14- and 15-year-olds over the same period. One in three high school seniors now smokes marijuana. I have to say the President has stood up and condemned smoking cigarettes but has not condemned smoking marijuana. One in three high school students now smoke marijuana. There has been a 53-percent drop in our ability to interdict and push back drug shipments in the transit zone between 1993 and 1995. Drug purity is way up, street prices are down, and the number of drug-related emergency room admissions is at record levels. Federal law enforcement is under a very severe strain, and at the very time that the technical sophistication of the Cali Mafia is reaching new heights. Frankly, of those one in three high school students that are using marijuana, 30 percent of those who do it will try cocaine in the future of their lives. That is just a matter of fact. It is a statistic we know. And this has gone up so dramatically fast that I am really concerned about it. The Gallup Poll as released today showed that 94 percent of Americans view illegal drug use as either a crisis or a very serious problem. These people are right. We simply need to do better. As a start, I urge President Clinton to appoint a replacement director at the earliest possible date. It is vital to our Nation's effectiveness against drugs that we have a coordinated strategy against drug abuse in our executive branch of Government. Almost 3 years into the administration no nominee has been forwarded to the Senate for the purpose of ONDCP Deputy Director for Supply Reduction--in 3 years. This position should be filled immediately as well. I believe that whoever is appointed ought to use that bully pulpit to let the American people know that we have had it up to here with drug abuse in our country, with this cancer that has been eating away at our children, and which, naturally because of the permissiveness of our society, is resulting in more and more drug use. We have to do something about it. I wish Director Brown, Lee Brown, well. I like him personally. I know how frustrating it must have been. The first thing they did when he took over the Office of National Drug Control Policy was to cut his staff almost completely. Frankly, it is hard to do this job without the backing of the President of the United States. I really do not believe this administration has backed him in the way that they should have backed him. Despite that, he has done the best he could. I personally want to acknowledge that on the floor. I want to pay my respects to him. I have admiration for him. I think his heart was always in the right place, and I think he did the best he could under the circumstances. I just hope in these next few years--especially this next year--we do something about this, that we replace him and get a deputy for the next Director as soon as we can, and that we start fighting this issue with everything we have. I yield the floor. Mr. McCAIN addressed the Chair.

Mr. HATCH

Mr. HATCH. Mr. President, today Senator Kennedy and I are pleased to introduce S. 1471, the Federal Tort Claims Act Malpractice Coverage for Health Centers Extension Act of 1995. Our bill will make permanent an exemption in current law that provides medical malpractice coverage under the Federal Tort Claims Act [FTCA] to federally funded community health center personnel. The current law is due to expire on December 31, necessitating speedy consideration of this legislation in the Congress. I am pleased to announce that the House passed this afternoon a similar bill, H.R. 1747, authored by my good friend from Connecticut, Representative Nancy Johnson and I am hopeful the Senate can take up the Johnson bill forthwith. A brief recitation of the legislative history on this issue may be useful to my colleagues at this point. In 1992, Senator Kennedy and I worked with our colleagues in the House to treat community health center [CHC] physicians, nurses, and other personnel as Federal employees under the FTCA for the purpose of defending against malpractice claims. Substituting the FTCA remedy for private lawsuits relieves CHC's from devoting their limited program funds to purchase costly private malpractice insurance. Purchase of such insurance had proven an extremely costly burden to the centers, which, I believe, have been doing a marvelous job in providing excellent care in underserved areas on what amounts to a shoestring budget. The Federal Tort Claims Act, which falls under the jurisdiction of the Judiciary Committee, stipulates strict procedural requirements for the consideration of claims. For example, it does not provide for jury trials or the award of punitive damages. These streamlined procedures act to reduce the number of, and costs associated with, tort claims. By reducing insurance costs, the more than 500 community and migrant health centers can provide more direct medical services to the 5 million Americans who rely on these centers for their primary health care needs. In the initial 3 years of our experience under the FTCA, it is encouraging to find that all experience suggests that health centers have a lower incidence of malpractice claims than comparable private insurance providers. Through fiscal year 1995, it has been estimated that only 15 claims have been filed nationwide against the 119 participating health centers. Thus far, no funds have been required to be paid out under the statute to satisfy claims. In fact, the Department of Health and Human Services estimates that the 1992 law has saved over $14.3 million to date. This is consistent with the 1992 House Judiciary Committee report on this topic which noted that the savings from the law would far exceed the costs of coverage. I want to take a moment to discuss the history of this legislation in the 104th Congress. As I noted earlier, the House passed a similar bill today under suspension of the rules. The version reported from the House Commerce Committee on September 27 was very similar to the approach that Senator Kennedy and I were developing. However, that bill recommended a 3-year extension whereas we believed a permanent extension was warranted. Ultimately, through discussions with our House colleagues, we were able to reach an agreement and the bill that passed the House today makes the FTCA coverage for CHC's permanent. The bill that passed the House today also differs from our approach in two other areas. First, I understand that the House bill makes explicit that centers are not required to operate under the FTCA aegis. In other words, centers are free to purchase insurance on their own if they so desire. I believe this is appropriate, and have no objection to this provision. It clearly was our intent in drafting S. 1471. Second, in order to address concerns that our claims experience may be too limited in the first 3 years of operation to predict the adequacy of future reserves, we have provided for a General Accounting Office study of the medical liability risk exposure of centers. If--as seems unlikely based on the past experience and future expectations-- unforeseen problems develop in this program, this issue can be revisited. The House bill contains a GAO study provision which is much more detailed than that embodied in the bill we introduce today. Again, I have no objection to the House alternative. Mr. President, in closing, I note that the administration is supportive of this legislation and of making the program permanent. According to a recent administration report in support of extending FTCA coverage: ``Our experience to date * * * is sufficiently positive that we believe that it is advisable to adopt FTCA coverage without a time limitation, rather than to continue to insert sunset provisions.'' The legislation that Senator Kennedy and I are introducing today will result in the delivery of more public health services to underserved areas throughout the country, whether these areas are urban or rural. It is no secret to my colleagues that I am a tremendous fan of the work that CHC's are doing, especially in Utah, and I think it behooves the Congress to give them this added tool to help improve health care services in areas in which access has traditionally suffered. At the bottom line, the 1992 legislation achieved more public health bang-for-the-buck and should be made permanent. It is important that a bill be acted upon in the near future to extend coverage so that centers will know whether or not they have to purchase private coverage for 1996. Therefore, I urge my colleagues to support a permanent extension of the legislation authorizing Federal Tort Claims Act coverage of community health centers.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on Tuesday, December 12, 1995, to conduct a markup of S. 1228, Iran Foreign Oil Sanctions Act of 1995.

Mr. HATCH. Mr. President, I ask unanimous consent that the full Committee on Environment and Public Works be granted permission to conduct a hearing Tuesday, December 12, at 2:30 p.m., Hearing room (SD- 406) on S. 776, the Atlantic Striped Bass Conservation Act Amendments of 1995.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Tuesday, December 12, 1995, at 2 p.m. to hold a business meeting to vote on pending items.

Mr. HATCH. Mr. President, I ask unanimous consent on behalf of the Governmental Affairs Committee to meet on Tuesday, December 12, at 2:15 p.m. for a markup on the following agenda: Nominations Donald S. Wasserman, to be member, Federal Labor Relations Board. David Williams, to be Inspector General, Social Security Administration. (Sequential referral. Finance held its hearing on Thursday, November 30, and favorably reported the nominee out). Legislation S. 1224, the Administrative Disputes Resolution Act of 1995.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet during the session of the Senate on Tuesday, December 12, 1995, for purposes of conducting a markup on S. 814, to provide for the reorganization of the Bureau of Indian Affairs, and S. 1159, to establish an American Indian Policy Information Center.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Small Business be authorized to meet the session of the Senate for a hearing on Tuesday, December 12, 1995, at 9:30 a.m., in room 428A of the Russell Senate Office Building, to conduct a hearing focusing on ``Proposals to Strengthen the SBIC Program.''

Mr. HATCH. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on Tuesday, December 12, 1995, at 2 p.m. to hold a closed briefing regarding intelligence matters.

Mr. HATCH. Mr. President, I ask unanimous consent that the Subcommittee on Parks, Historic Preservation, and Recreation of the Committee on Energy and Natural Resources be granted permission to meet during the session of the Senate on Tuesday, December 12, 1995, for purposes of conducting a Subcommittee hearing which is scheduled to begin at 9:30 a.m. The purpose of the hearing is to consider S. 873, a bill to establish the South Carolina National Heritage Corridor; S. 944, a bill to provide for the establishment of the Ohio River Corridor Study Commission; S. 945, a bill to amend the Illinois and Michigan Canal Heritage Corridor Act of 1984 to modify the boundaries of the corridor; S. 1020, a bill to establish the Augusta Canal National Heritage Area in the State of Georgia; S. 1110, a bill to establish guidelines for the designation of National Heritage Areas; S. 1127, a bill to establish the Vancouver National Historic Reserve; and S. 1190, a bill to establish the Ohio and Erie Canal National Heritage Corridor in the State of Ohio.

Mr. HATCH

Mr. HATCH. Mr. President, I normally would want the distinguished Senator from Delaware to go first, but let me say this. This amendment is doubly flawed. First, it does not offer proper protection to the flag. A veteran writing the name of his or her unit on a flag is a criminal if we pass the statute authorized by this amendment. Second, we have never in 206 years written a statute into the Constitution. This amendment is a textbook example of blurring the distinction between our fundamental charter, our Constitution, and a statutory code. We cannot do this to our Constitution. The same amendment was rejected 93 to 7 in 1990. And it has not improved with age. There is a better way to protect the flag: vote down the Biden amendment, and then vote for the Hatch-Heflin-Feinstein amendment. Mr. President, I suggest the absence of a quorum.

Mr. HATCH. I withhold. Mr. BIDEN addressed the Chair.

Mr. HATCH. Mr. President, the McConnell amendment would displace the flag amendment. It would kill the flag desecration constitutional amendment, the only real way the American people can protect their flag. The McConnell amendment offers a substitute statute. It offers virtually no protection for the flag. It is so narrowly drawn and related to flag desecration in such limited circumstances that it would not have changed the decision in the Johnson case. It does not protect the flag in cases that have not involved the breach of the peace or a flag stolen from the Government or a stolen flag desecrated on Federal property. Finally, we have been down this dead end before. The Supreme Court will not buy any statute, and it will not buy this statute any more than it bought the 1989 Biden flag statute. How can we look the American people in the eye if we adopt this ineffective substitute? So the Supreme Court will strike it down. How many times must we have the Supreme Court tell us that a statute will not work? So I hope everybody will vote ``no'' on the McConnell amendment. I ask for the yeas and nays.

Mr. HATCH. Mr. President, the Senate must now decide: Is this picture of the flag being desecrated freedom or an abuse of freedom? The American people know the difference. They are counting on the Senate to understand it too. Do not talk to me about flag bathing suits or T-shirts. This is what we are talking about. This is the unique symbol of our country. Only Congress will be able to protect the flag. If we do not trust ourselves to protect the American flag in a responsible way, why should the American people trust us to do anything? The Supreme Court made a mistake. The Framers gave the people and this Senate the right to correct that mistake, through the justifiably difficult amendment process. Let the American people have the right to enact one, uniform law which protects one symbol of this great country and one symbol only-- Old Glory. Mr. DASCHLE addressed the Chair.

Mr. HATCH. Mr. President, I ask for the yeas and nays.

Mr. HATCH

Mr. HATCH. Mr. President, today Senator Kennedy and I are pleased to introduce S. 1471, the Federal Tort Claims Act Malpractice Coverage for Health Centers Extension Act of 1995. Our bill will make permanent an exemption in current law that provides medical malpractice coverage under the Federal Tort Claims Act [FTCA] to federally funded community health center personnel. The current law is due to expire on December 31, necessitating speedy consideration of this legislation in the Congress. I am pleased to announce that the House passed this afternoon a similar bill, H.R. 1747, authored by my good friend from Connecticut, Representative Nancy Johnson and I am hopeful the Senate can take up the Johnson bill forthwith. A brief recitation of the legislative history on this issue may be useful to my colleagues at this point. In 1992, Senator Kennedy and I worked with our colleagues in the House to treat community health center [CHC] physicians, nurses, and other personnel as Federal employees under the FTCA for the purpose of defending against malpractice claims. Substituting the FTCA remedy for private lawsuits relieves CHC's from devoting their limited program funds to purchase costly private malpractice insurance. Purchase of such insurance had proven an extremely costly burden to the centers, which, I believe, have been doing a marvelous job in providing excellent care in underserved areas on what amounts to a shoestring budget. The Federal Tort Claims Act, which falls under the jurisdiction of the Judiciary Committee, stipulates strict procedural requirements for the consideration of claims. For example, it does not provide for jury trials or the award of punitive damages. These streamlined procedures act to reduce the number of, and costs associated with, tort claims. By reducing insurance costs, the more than 500 community and migrant health centers can provide more direct medical services to the 5 million Americans who rely on these centers for their primary health care needs. In the initial 3 years of our experience under the FTCA, it is encouraging to find that all experience suggests that health centers have a lower incidence of malpractice claims than comparable private insurance providers. Through fiscal year 1995, it has been estimated that only 15 claims have been filed nationwide against the 119 participating health centers. Thus far, no funds have been required to be paid out under the statute to satisfy claims. In fact, the Department of Health and Human Services estimates that the 1992 law has saved over $14.3 million to date. This is consistent with the 1992 House Judiciary Committee report on this topic which noted that the savings from the law would far exceed the costs of coverage. I want to take a moment to discuss the history of this legislation in the 104th Congress. As I noted earlier, the House passed a similar bill today under suspension of the rules. The version reported from the House Commerce Committee on September 27 was very similar to the approach that Senator Kennedy and I were developing. However, that bill recommended a 3-year extension whereas we believed a permanent extension was warranted. Ultimately, through discussions with our House colleagues, we were able to reach an agreement and the bill that passed the House today makes the FTCA coverage for CHC's permanent. The bill that passed the House today also differs from our approach in two other areas. First, I understand that the House bill makes explicit that centers are not required to operate under the FTCA aegis. In other words, centers are free to purchase insurance on their own if they so desire. I believe this is appropriate, and have no objection to this provision. It clearly was our intent in drafting S. 1471. Second, in order to address concerns that our claims experience may be too limited in the first 3 years of operation to predict the adequacy of future reserves, we have provided for a General Accounting Office study of the medical liability risk exposure of centers. If--as seems unlikely based on the past experience and future expectations-- unforeseen problems develop in this program, this issue can be revisited. The House bill contains a GAO study provision which is much more detailed than that embodied in the bill we introduce today. Again, I have no objection to the House alternative. Mr. President, in closing, I note that the administration is supportive of this legislation and of making the program permanent. According to a recent administration report in support of extending FTCA coverage: ``Our experience to date * * * is sufficiently positive that we believe that it is advisable to adopt FTCA coverage without a time limitation, rather than to continue to insert sunset provisions.'' The legislation that Senator Kennedy and I are introducing today will result in the delivery of more public health services to underserved areas throughout the country, whether these areas are urban or rural. It is no secret to my colleagues that I am a tremendous fan of the work that CHC's are doing, especially in Utah, and I think it behooves the Congress to give them this added tool to help improve health care services in areas in which access has traditionally suffered. At the bottom line, the 1992 legislation achieved more public health bang-for-the-buck and should be made permanent. It is important that a bill be acted upon in the near future to extend coverage so that centers will know whether or not they have to purchase private coverage for 1996. Therefore, I urge my colleagues to support a permanent extension of the legislation authorizing Federal Tort Claims Act coverage of community health centers.