Orrin Hatch

Mr. HATCH

Mr. HATCH. I do not think so.

Mr. HATCH. Well, I would certainly believe that the distinguished Senator from Rhode Island, like myself, would have a little more respect for the ability of Congress to do a good job of defining what constitutes desecration of the flag. I have no doubt that Congress would not do penalize conduct where it is clear that the flag is not being treated with contempt, such as the display of hooked rug which may include a depiction of a flag. What would constitute contempt for or desecration of the flag would be determined by whatever statute Congress passes, in the event this amendment is ratified and becomes part of our constitution. But let us be honest about this subject. We have all seen beautiful sweaters, we have seen beautiful ties, we have even seen sports equipment containing representations of the flag. I cannot imagine anybody in Congress prohibiting that. I think Congress would only be concerned with those instances where the flag is physically treated with contempt. Of course, we all know what that is, and that, in turn, would be determined by the courts of law in accordance with the statute we enact. Now, if the distinguished Senator from Rhode Island is concerned about it, then he has 534 other people who he can work with to insure that whatever flag protection statute is adopted is not too broadly written, so that it results in action being taken against people who really are not trying to deface or otherwise treat the flag with contempt. Frankly, I have total confidence in the Congress of the United States coming up with a very narrowly prescribed, very narrowly defined statute on what exactly is holding the flag in contempt, what exactly is desecration of the flag. We all know what it is. It is a little bit like obscenity. One of the Justices said, ``I know what it is when I see it.'' I think the Court will have to make that determination. I suspect we in Congress will do a good job. If the distinguished Senator sits in Congress at that time, and he does not like what statute is advanced by Members of Congress, he has 534 people to which to appeal. Let me make one last point. When Congress considers a flag protection statute under this amendment, assuming it is adopted, you will still have all of the legal and procedural protections of the Senate, including the right to filibuster, which would require 60 votes for cloture. In addition, we will always have the President, who can veto any legislation we pass. But remember, and this is the key point, without this amendment, or something similar thereto, neither the Congress nor the American people will ever--will ever--be able to prohibit desecration of the American flag. So that is why this amendment is so important, and I think people understand that.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until the hour of 9 a.m. on Tuesday, December 12; that following the prayer, the Journal of proceedings be deemed approved to date, no resolutions come over under the rule, the call of the calendar be dispensed with, the morning hour be deemed to have expired, the time for the two leaders be reserved for their use later in the day, and the Senate immediately resume consideration of Senate Joint Resolution 31, a joint resolution regarding a constitutional amendment on flag desecration.

Mr. HATCH. Under the previous order, there will be a period for closing debate on Senate Joint Resolution of 1 hour and 40 minutes equally divided. Mr. President, I ask unanimous consent that at 10:40 a.m. Tuesday morning, following debate on Senate Joint Resolution 31, the Senate recess until the hour of 2:15 p.m.

Mr. HATCH

Mr. HATCH. Mr. President, if there is no further business to come before the Senate, I now ask that the Senate stand in adjournment under the previous order.

Mr. HATCH

Mr. HATCH. Mr. President, for the information of all Senators, at 10:40 a.m. tomorrow, the Senate will proceed to the House Chamber to hear an address by Israeli prime minister Shimon Peres to a joint meeting of Congress. When the Senate reconvenes following party conferences at 2:15, under a previous order, the Senate will begin a series of votes on amendments and passage of Senate Joint Resolution 31. Each vote will be preceded by 2 minutes of debate, equally divided. Therefore, the first vote will occur at 2:17 p.m. and will be 15 minutes in length. Each subsequent vote will be 10 minutes each. Following disposition of Senate Joint Resolution 31, it will be the majority leader's intention to turn to the consideration of Bosnia legislation. Senators are urged to debate the Bosnia legislation on Tuesday into the evening, if necessary. It is the hope of the majority leader to pass the Bosnia legislation before Wednesday, December 13, at noon. Therefore, further votes are possible on Tuesday.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the President of the Senate be authorized to appoint a committee on the part of the Senate to join with a like committee on the part of the House of Representatives to escort His Excellency, Shimon Peres, Prime Minister of Israel, into the House Chamber for a joint meeting tomorrow.

Mr. HATCH

Mr. HATCH. Mr. President, if there is no further business to come before the Senate, I now ask unanimous consent that the Senate stand in adjournment under the previous order, following the remarks of Senators Dorgan and Dodd.

Mr. HATCH. I yield the floor.

Mr. HATCH

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

Mr. HATCH. Mr. President, in listening to the debate on the flag amendment on Wednesday and some of the remarks of some of my colleagues here on the floor, my reaction with respect to some of their arguments and some of the arguments of the opponents of the flag amendment comes down to, there they go again. The same tired, old, worn out arguments, again and again. One of my colleagues from Arkansas says we are here because of ``pure, sheer politics.'' Evidently, some opponents of the amendment believe there is only one side to this argument, and everybody else must be playing politics. Tell that to Rose Lee, a Gold Star Wife and past president of the Gold Star Wives of America. She testified in support of this constitutional amendment to prevent desecration of the American flag, our national symbol. She testified in support of this amendment on June 6, 1995, before the Constitution Subcommittee, and brought with her the flag that had draped her husband's coffin. She said: It's not fair and it's not right that flags like this flag, handed to me by an honor guard 23 years ago, can be legally burned by someone in this country. It is a dishonor to our husbands and an insult to their widows to allow this flag to be legally burned. Go tell Rose Lee she supports the flag protection amendment out of pure, sheer politics. Go tell the members of the American Legion who have been visiting our offices. Go tell our colleague, Senator Heflin, a Silver Star winner from World War II, that he is playing politics. Tell the Senate Democratic whip, Senator Ford, that he is playing politics by cosponsoring and supporting this amendment, a man who has suffered a lot for this country. Tell the Democratic leader of the other body, Congressman Richard Gephardt, and 92 other House Democrats that they played politics when they voted for this amendment. As for the number of flag desecrations--again, my friend from Arkansas was wrong. He said there were none this year. In fact, there have been published reports of at least 20 American flags destroyed at a cemetery in Bloomington, IN, alone. They were cut or ripped from flagpoles and burned. These desecrations were also reported on local television. [[Page S 18254]] In July of this year, according to USA Today, a flag was defaced with obscene messages about President Clinton and Speaker Gingrich in New Hampshire. Are there not countless ways of expressing these views without defacing the flag? In June, a flag was burned in Hays, KS. Just a short time ago, I saw a news clip about a motorist at a gas station using an American flag to wipe the car's dipstick. A veteran--a veteran-- called it to the police's attention but, of course, the individual cannot be prosecuted today for that desecration of the flag. He can keep using it as he has, or perhaps he will next use it to wash his car. My friend from Arkansas raised a concern about a person being punished for refusing to salute or honor the flag. No law enacted under the flag amendment can compel anyone to salute or honor the flag, to say nice things about the flag, or otherwise compel anyone to respect the flag. There is an obvious difference between prohibiting physical desecration of the American flag, and compelling someone to express respect for it. So it is totally irrelevant, in this debate, to talk about punishment for failing to respect or salute the flag or pledge allegiance to it. The pending amendment simply does not authorize such punishment. Nor does it authorize punishment for saying critical things about the flag, or anything else. Some of my friends who have spoken here also drew attention to a chart with various flags on it from places like Nazi Germany, the Soviet Union, Cuba, and Iraq, with the American flag in the middle. One of my colleagues pointed out that these other countries prohibited flag desecration. But when opponents of the amendment trot out these comparisons among countries and their flag desecration laws, they never really explain fully their point. To begin with, the difference between the American flag and these other flags is certainly self-evident to all of my colleagues and to the American people. And, of course, I know that those of my colleagues who think these comparisons are useful, recognize the difference between what the American flag represents and what Nazi Germany's flag represents. So what really is the point of the comparisons of flag desecration laws in these countries? Is it that, in some undefined way, there is a kind of moral equivalence between Nazi Germany, Iraq, and the United States if all three prohibit physical desecration of their flags? That is too nonsensical to be the point. Indeed, until 1989, 48 States and Congress had outlawed physical desecration of the flag. Did any opponent of the amendment feel they were in a police state during that time? I do not think anybody did. Did the American people not have numerous ways to express themselves without physically desecrating our flag? Indeed, as I explained in my opening remarks on Wednesday, freedom of speech actually expanded in this country through 1989, even as flag protection statutes were being enacted. If I told my colleagues that Nazi Germany also had stringent gun control laws, do the opponents of the flag protection amendment believe, for that reason, America better not adopt a particular gun control measure? They did. To use that kind of reasoning, why would that not follow? If I told the opponents of the flag protection amendment that a police state had liberal abortion laws, would that turn them into pro- lifers in America? Would it turn them into supporters of the Partial- Birth Abortion Ban Act of 1995? So what is the point of comparing whether Nazi Germany, Iraq, and the United States protect their respective flags? Certainly, it is not to compare those who voted for a measure protecting the flag, such as the Biden statute, including the Senator from Arkansas and almost every other Senator, with the dictators of Nazi Germany and Iraq. I was struck by the highlighting of the Nazi flag on the same chart as the American flag. It reminded me of another use of these two flags. Stephan Ross is a psychologist in Boston, MA. He gave a presentation in the Hart Senate Office Building earlier this year. He began by displaying a Nazi flag, and told the audience he had lived under that flag for several years. In 1940, at the age of nine, the Nazis seized him from his home in Krasnik, Poland. He was a prisoner for 5 years in 10 Nazi death camps. The American army liberated Mr. Ross from Dachau in April 1945. In Mr. Ross's words: We were nursed for several days by these war-weary, but compassionate men and women until we had enough strength to travel to Munich for additional medical attention. As we walked ever so slowly and unsteadily toward our salvation, a young American tank commander--whose name I have never known--jumped off his tank to help us in whatever way he could. When he saw that I was just a young boy, despite my gaunt appearance, he stopped to offer me comfort and compassion. He gave me his own food. He touched my withered body with his hands and his heart. His love instilled in me a will to live, and I fell at his feet and shed my first tears in five years. The young American tank commander gave Mr. Ross what he at first believed to be a handkerchief. Mr. Ross said: It was only later, after he had gone, that I realized that his handkerchief was a small American flag, the first I had ever seen. It became my flag of redemption and freedom. . . . Even now, 50 years later, I am overcome with tears and gratitude whenever I see our glorious American flag, because I know what it represents not only to me, but to millions around the world . . . . Protest if you wish. Speak loudly, even curse our country and our flag, but please, in the name of all those who died for our freedoms, don't physically harm what is so sacred to me and countless others. Go tell Stephen Ross that protecting the American flag from physical desecration is in any way like protecting the Nazi flag from such desecration, or in any way represents some notion, however small, of moral equivalence between Nazi Germany and the United States, or in any way puts the United States on some kind of par with Nazi Germany. That analogy just will not float. Mr. Ross still has the flag the American tank commander gave him in 1945. Mr. Ross is a supporter of this amendment, and one can read about his story on the front page of the July 4, 1995, USA Today. Mr. President, some of my other colleagues argue that enactment of this flag amendment would be the beginning of a long slide down a slippery slope to further restrictions on free speech. Give me a break. They even make a thinly veiled comparison between prohibiting physical desecration of the American flag with the Chinese Government's execution of three dissidents. Give me a break. This argument is incredibly overblown. In answer to this, I would like to quote from a letter Bruce Fein, an opponent of the amendment who testified against the amendment. He wrote to the Judiciary Committee in June of this year in response to my questions. He states: The proposed amendment is a submicroscopic encroachment on free expression that would leave the U.S. galaxies beyond any other nation in history in tolerating free speech and press. If foreign nations were to emulate the constitutional protection of freedom of expression in the United States even with a flag burning amendment, they would earn glittering accolades in the State Department's annual Human Rights reports and from Amnesty International and Human Rights Watch. Mr. President, it is time for us to recognize that the American flag is our national symbol; that it has meaning to millions and millions of Americans all over this country, many of whom have fought for this country, many of whom have suffered as family members who have lost somebody who has fought for this country under our flag. About 80 percent of the American people are for this amendment. The remaining 20 percent either do not know, or are people who would not be for anything that contrasts values. Mr. President, all this amendment would do is allow the Congress to enact a law prohibiting physical desecration of the American flag. We are going to take out of the amendment the three words ``and the States,'' so that we will not have 51 different interpretations of what flag desecration is. This change will be made at the request of a number of Senators who are concerned, as I am, about that possibility. At the appropriate time, an amendment to make that change will be filed. All this amendment does is restore the symbol of our American flag to a constitutionally protected status. And it allows the Congress, if it chooses to--it does not have to, but if it chooses to--to enact implementing legislation to protect the flag. [[Page S 18255]] There is no one in Congress who is going to go beyond reason in protecting the flag. We will still have our emblems on athletic equipment. We will still have little flags. We will still be able to have scarves and other beautiful and artistic renditions of the flag. What we will not have is the ability to physically desecrate the American flag. All we are asking here is to let the American people decide this. If we have enough support, 66 people in favor, we will pass this amendment through the Senate. That is, of course, only the beginning of the process, because three-quarters of the States will then have to ratify this amendment before it becomes the 28th amendment to the Constitution. I believe three-quarters of the States will ratify it, because almost all of the States have already called for this amendment through effective legislative enactment. But what will ensue once this amendment passes--something that is worth every effort we put forward--is a tremendous debate in our country about values, about patriotism, about what is right or wrong with America, about things that really will help us to resurrect some of the values that have made America the greatest country in the world. It will be a debate among the people. For those who do not want a constitutional amendment passed, they will have a right to go to every one of our 50 States and demand that people not allow us to protect the flag from desecration. They will have an equal right with anybody else to make their case. We are here to make the decision to let that debate over values, over right and wrong, over patriotic thoughts and principles ensue. It is worth it. I personally resent anybody indicating that this is just politics. I have heard some people say, ``Well, if this was a secret ballot, it would not pass at all.'' I do not agree with that. I believe there are enough people in this body who realize that we are talking about something pretty valuable here, something pretty personal, something that really makes a difference in all of our lives; our national symbol. The symbol that soldiers rally behind, fight under, went up San Juan Hill to retrieve. For those of us who have lost loved ones in various wars, this particular debate plays an especially significant role. There are those here who are themselves heroes, and who may disagree, and they have a right to do so. I think they do so legitimately in their eyes, and certainly sincerely. I respect them and respect their viewpoints, just as I hope that those on the other side will respect the viewpoints of those of us who believe that this is an important thing, that this is a value in America that is important, that ought to be upheld. In my case, our family has seen suffering. I can remember as a young boy playing in the woods down in front of our very, very humble home that my dad had built from a burned-out building. In fact, for the early years of my life our house was black. I always thought all houses were black, or should have been. One side of it had, as I recall, a Meadow Gold Dairy sign on the whole side of the house, because he had to take that wood from another building. It was either that or a Pillsbury Flour sign. I believe it was a Meadow Gold Dairy sign. It was one or the other. I always thought that was a pretty nice thing to have on our house as a young kid. I was down in front of the house playing in the woods, when I heard my mother and dad. I could tell there was something wrong. I ran out of the woods and ran up to the front porch of our house, this humble place, and there was a representative of the military informing my folks that my brother, my only remaining brother, who we all loved dearly, Jess Hatch, Jess Morlan Hatch, was missing in action. It was a sad occasion. My folks were just broken up about it. They loved all nine of us kids, two of whom had predeceased Jess, who was missing in action. When my brother was home, my mother had some beautiful yellow roses that she had grown. She really had a green thumb. She could raise beautiful flowers. He used to kid her about taking those yellow roses and giving them to his girlfriend, or taking the plants and giving them to his girlfriend. She always laughed. She knew he would never do it. But, for a couple of months after my brother was listed as missing in action, my mother received a dozen yellow roses from my brother. She believed right up until the day that they found his body and brought him back that he was still alive. He had flown in that fateful Foggia, Italy mission and helped knock out the oil fields that really helped to shorten the war. He flew in a B-24 bomber. He was a hero, and one of the few people who ever shot down a German jet, which were new planes. I have his Purple Heart in our home out in Salt Lake City, as well as a number of his military memorabilia. I also have all of his letters to my mom and dad. I have read every one of them within this last year, and it was interesting to see how he was evolving as a high school graduate to the great person that he really was. My mom and dad died--my mother last June and my dad 2 years before. They would have given their lives to save the American flag. My brother did. One of my most prized possessions is the American flag that draped my brother's coffin. I have that in my home out at Salt Lake as well, along with his medals. There have been hundreds of thousands of Americans who died to preserve liberty around the world who fought--maybe not for the flag, but under the flag--and who have revered the American flag. Who could forget the Iwo Jima Monument, commemorating the soldiers who risked their lives to see that our Nation's flag was lifted and flown above that island, a symbol for all of them. You can go through literally thousands of stories on why the flag is important. I do not want to make this so emotional, but the fact is that it is emotional. I think it is wrong for anybody to come here and say that this is just a political exercise. That is not a knock at my dear friends who feel that way. I am sure they are sincere, but I think they are sincerely wrong. Paul was sincere, I guess, when he held the coats of the people who stoned the first Christian martyr. He was as sincere as anyone could be. He held their coats. He believed in what they were doing. He persecuted the saints. But Paul was sincerely wrong, and I believe anybody that denigrates the intentions of those who want to preserve and protect the flag is, in this case, sincerely wrong. I guess what I am saying here is that this is a much more important issue than just a political issue. To me, politics does not even enter into this. It is an issue of whether we value the values of our country, the things that made this country great. It is an issue of whether we want to have this debate over values, whether we want to let the American people really decide for themselves whether the flag is important or whether it is not. In a day and age where we seem to be denigrating values all the time, why should we not stand up for one of the values that really has helped make this country great, that has meant something from the beginning of this Nation? Why should we not have that debate? For those who disagree, however sincerely their opposition, I invite them to join the debate. Prove us wrong, not only here on the floor, but do it, once this amendment passes, with the American people. I think they are going to find that the vast majority of the American people do not agree with them. Last but not least, there are those who would argue that this is a denigration of the First Amendment, or that nobody has ever amended the Bill of Rights. Let me tell you something. The Bill of Rights was no sooner passed when the 11th amendment was passed to overcome a faulty Supreme Court decision. A number of the other amendments have been passed since then to overcome Supreme Court decisions that were wrong. It is a legitimate thing. Keep in mind that Earl Warren, Abe Fortas, Hugo Black, three of the most liberal members ever on the Supreme Court, wrote that they believed the flag could be protected. It had nothing to do with first amendment rights or freedoms in the sense of denigrating the first amendment. The fact that in the Johnson case, the Supreme Court alluded to the first [[Page S 18256]] amendment, and spoke of the first amendment right of free speech being violated, does not make it right. How can anybody say that we are trying to stop any person from saying whatever they want to, to denigrate the flag. They can denigrate the flag all they want to, with all the free speech in the world, and I am certainly going to uphold their right to do it. What we are against here, and what we need to establish through a constitutional amendment, is that this does not involve speech. It involves improper and offensive conduct. And that is what Justices Warren, Fortas, and Black basically said. This is not a violation of first amendment protected free speech. Anybody can speak any way they want. Physically desecrating the American flag, however, is a violation of the sensitivities and the values of America by means of offensive, improper conduct, physically treating our national symbol with contempt. And even though desecrations of the flag occur more than they should, but certainly not in overwhelming numbers, every one of them is reported by the media, seen by millions of people. So it is a lot bigger issue than some would make it on the floor. I have to say, I hope that our colleagues will vote for this amendment. It is worthwhile to do it. All we are going to do is give Congress the right to define this matter once and for all, and then we are going to have a debate in this country about values, one that I think is long overdue. I hope that our colleagues will consider that, and I personally believe we can pass this amendment, although it is always uphill on a constitutional amendment. We understand that, and that we may have to keep bringing this amendment forth. Ultimately, however, this amendment is going to pass. I guarantee it is going to pass someday, even if it does not pass this time. But I personally believe we have a good shot at it this time. Mr. President, I will yield the floor to my colleague from Wisconsin.

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

Mr. HATCH

Mr. HATCH. I now ask unanimous consent that there now be a period for the transaction of routine morning business with Senators permitted to speak for up to 10 minutes each.

Mr. HATCH

Mr. HATCH. Mr. President, I have listened to the various speeches presented today about the flag amendment. There are people on both sides who speak on this issue with sincerity. For the life of me, I have a rough time understanding some of these arguments. People come to the floor and say that they want to protect the flag, that they love the flag, and that they are patriotic. I do not question that. All that this amendment says is that Congress has the power to prohibit flag desecration. Everybody knows Congress is going to want to pass a statute once the amendment passes. It will be done reasonably. With regard to the first amendment, let me point out that this is not an amendment to the first amendment. The flag amendment is the correction of a faulty Supreme Court decision. Chief Justice Warren, Justice Black--first amendment absolutists--Justice Fortas, Justice Stevens, just to mention four liberal Justices, have said that prohibiting flag desecration does not violate the first amendment. Let me just respond to those people who think that free speech is an absolute, that you can never violate it, that you can never do anything at all to regulate it. First of all, the protection for free speech does not apply to flag burning. Flag burning is conduct. How can anybody say it is speech when in fact it is an act? But let us assume for the sake of argument that it is speech. Let me just list 20 types of speech that are not protected by the first amendment, because people do not realize that there is a lot of speech not protected by the first amendment. Society has chosen not to protect these types of expression. The Supreme Court chooses not to do so. Let me cite ``fighting words.'' In Chaplinsky versus New Hampshire, a 1942 case, the Court said that fighting words can be banned. Second, in the 1969 case of Brandenberg versus Ohio, a very important case, as was Chaplinsky, the Court said that speech that incites imminent violence was not protected by the First Amendment. Third, libel is not protected by the first amendment, see New York Times versus Sullivan, 1964. Fourth, defamation Beauharnais versus Illinois, a 1952 case. Fifth, obscenity is not protected by the first amendment. See Miller versus California, a 1973 case. Sixth, speech that constitutes fraud, conspiracy, or aiding and abetting is not protected by the first amendment. [[Page S 18282]] The first amendment is not absolute. There is a lot of speech that is not protected by the first amendment. Seventh, commercial speech in certain situations is not protected, see Central Hudson Gas & Electric versus Public Service Commission, a 1980 case. Eighth, political contributions are not protected by the first amendment under certain circumstances, see Buckley versus Valeo. Ninth, child pornography is not protected by the first amendment. That is the case of New York versus Ferber. Tenth, political speech of Government employees in certain situations is not protected by the first amendment--Pickering versus Board of Education, a 1968 case. How about speech interfering with elections? That is No. 11. See Burson versus Freeman, 1992 case. These are all cases where we have content-based restrictions on the first amendment. So people come out here and claim: ``My goodness. We cannot amend the first amendment.'' All of these cases have limited the reach of the first amendment, and rightly so. Who wants to allow fighting words? Who wants to allow words that incite people to violence? Who wants to approve or uphold libel that destroys people's reputations? Who wants to approve defamation? Who wants to allow obscenity in this society, true obscenity, that is so foul that the community standards decry it? Who wants to uphold speech that constitutes fraud, conspiracy or aiding and abetting? Who wants to use commercial speech that is improper? How about political contributions? How about child pornography? Under current law, the government may regulate these types of speech without violating the first amendment. Naturally, all of these are areas where the Court, or the law, has said that the first amendment does not provide an absolute protection. Let me provide my colleagues with some reasonable time, place, and manner restrictions on expression. Twelfth, this is the 12th illustration--is restrictions on when Government property, such as national parks, can be used. That is Clark versus Community for Creative Nonviolence, a 1984 case. Thirteenth, picketing in front of a home--that is Frisby versus Shultz, a 1988 case. Fourteenth, posters on street posts--Members of the City Council of Los Angeles versus Taxpayers for Vincent, a 1984 case. Fifteenth, restrictions on speech in prison--the court has held in Turner versus Safley, a 1987 case that restrictions can be imposed on speech in prisons. Sixteenth, regulation of speech in schools--that is the Hazelwood School District versus Kuhlmeier, a 1988 case. Seventeenth, the use of soundtrucks and loudspeakers--that is speech. But it can be regulated under the Supreme Court's decision in Kovaks versus Cooper, a 1949 case. Eighteenth, zoning of adult movie theaters--that is a matter of speech, but see Young versus American Mini Theaters, a 1976 case. Certain speech in airports has been banned. Restrictions on door-to-door solicitation--that is Schneider versus State, a 1939 case. And, finally, the 21st illustration I will give--and then I will stop--administrative fees and permits for parades. That is Cox versus New Hampshire, a 1941 case. These are all limitations on speech under the first amendment. So I find it hard to understand the other side's arguments that we are going to interfere with the first amendment's rights and privileges and that we will be amending the first amendment. All 21 of these examples are certainly exceptions to free speech, and I am sure that the Supreme Court has recognized others. So this is not something that is unique or new. We are talking about the flag of the United States, the national symbol. Some people claim: ``Oh, my goodness. The rights of free speech supersede everything.'' Well, they do not. And especially where speech is not involved. But why can we not ban in the interest of patriotism and honor and values in this country, despicable, rotten, dirty, conduct against our national symbol? It amazes me that these folks come in here and say how they support the flag, how wonderful it is, and how terrible it is for people to do these awful things--to smear the flag with excrement, to urinate on it, to tramp on it, to burn it. What do we stand for around here? Have we gotten so bad in this country that no values count? I know people are going to vote for this amendment because they are tired of the lack of values in our country. They are tired of people just making excuses for all kinds of offensive conduct in this country. Have we no standards at all? Do we have to tolerate every rotten, despicable action that people take just because we are free people? The answer to that is no, no, no. I am willing to admit my colleagues are sincere. Bless them for it. But they are sincerely wrong to treat the flag like this while they say they uphold it and honor and love it, and yet they will not vote for a simple amendment that gives Congress the power to say what desecration of the flag really is. That is all it does. Congress does not even have to act if this amendment is passed. But we all know it will. Congress will act. Let me just talk a little bit about the McConnell amendment. Mr. President, make no mistake about it, Senator McConnell and I are the best of friends, but this McConnell amendment absolutely would kill this flag protection amendment. The McConnell amendment is a killer amendment, and I think everybody knows that. It replaces the flag protection amendment with a statute which cannot withstand Supreme Court review after Johnson and Eichman, and is far too narrow to offer real protection for the flag in any event. The American Legion and the Citizens Flag Alliance are strongly opposed to the McConnell proposal. Any Senator who has cosponsored Senate Joint Resolution 31, the flag protection amendment, or stated his or her intention to vote for it, must vote against the McConnell amendment. You cannot be for the flag amendment and the McConnell statute as proposed, which will completely replace the flag amendment. Mr. President, I appreciate the desire of the Senator from Kentucky to do something to protect the American flag. I know he feels strongly about the flag. I think that is true about everybody in this body. Rightly or wrongly, they feel strongly. And I hope that, in the end, my friend from Kentucky, will see his way clear to supporting our constitutional amendment should his amendment fail. But I say to my friend from Kentucky, with great respect, we have been down the statutory road before on this issue. It is a dead end, plain and simple. I well recall my friend from Delaware, Senator Biden lining up a variety of constitutional scholars to support his statute in 1989. Senator Dole, Senator Grassley, and I, told the Senate that the Supreme Court would strike it down. The statute passed by a vote of something like 91 to 9. Sure enough, the Supreme Court took 30 days after oral argument and less than eight dismissive pages to throw it out in United States versus Eichman. I say with all respect, the Senator from Kentucky now invites the Senate down the same barren path. The Supreme Court, in its Johnson and Eichman decisions, has made its position crystal clear: Special legal protections for the American flag offends the Court's concept of free speech. In Johnson, the Court made clear that for a State to forbid flag burning whenever such a prohibition protects the flag's symbolic role, but allow such burning when it promotes that role, as by ceremoniously burning a dirty flag, is totally unacceptable. The Court says this allows the flag to be used as a symbol in only one direction. Similarly, if flag desecration is singled out for greater punishment than other breaches of the peace or incitements to violence, such special treatment promotes the flag's symbolic role. This, sadly, the Court will not tolerate--they have told us this twice, now. In Eichman, the Court clearly declared that no statute which protects [[Page S 18283]] the flag as a symbol would survive constitutional muster. The Flag Protection Act was held invalid, like the Texas statute in Johnson, because of the ``same fundamental flaw: [they both] suppress expression out of concern for [its] likely communicative impact.'' [496 U.S. at 317]. Even though Congress had attempted to write a broader statute to avoid the problems of the Texas law, by making all physical impairments illegal except for ceremonial disposal of a worn flag, the Court found the act unconstitutional anyway because ``its restriction on expression cannot be justified without reference to the content of the regulated speech.'' [Id. at 318]. As Prof. Richard Parker of Harvard University Law School has put it, the Supreme Court found the act invalid because it ``involves taking sides in favor of what is `uniquely' symbolized by the flag--our `aspiration to national unity.' '' Indeed, my friend from Kentucky, has made very clear in his remarks upon introducing the bill what this bill is all about--it is not about breaches of the peace or theft. It is about protecting the flag as a symbol. He said on October 19, 1995: Flag burning is a despicable act. And we should have zero tolerance for those who deface our flag . . . I am disgusted by those who desecrate our symbol of freedom. . . . Mr. President, those words reinforce the bill's fundamental conflict with Johnson and Eichman. So does the finding in the proposed statue which describes our flag as: a unique symbol of national unity and represents the values of liberty, justice, and equality that make this Nation an example of freedom unmatched throughout the world. But many who burn the flag disagree with every word of that finding. Some of them believe the flag represents oppression, exploitation, and racism. They are wrong, but the Supreme Court has made clear that Congress and the States cannot protect the flag in order to preserve its symbolic value in one direction. I believe the Supreme Court is no more correct than it was in Dred Scott and Plessy versus Ferguson, but we cannot overrule such errors by statute. While it is true that flag desecration can be penalized pursuant to a general breach of the peace statute, in the same way other breaches of the peace are punished, offering special protection for the flag is intended to enhance the flag's symbolic role. The Court will not buy it. Further, even if this statute was upheld, it is, with great respect, very inadequate. Not every flag desecration will cause or likely cause a breach of the peace or violence. That will depend on circumstances. Frankly, I do not want the protection of the flag to be limited to those narrow circumstances. And these are very narrow circumstances. A flag desecrated in the midst of a crowd of those sympathetic to the desecrator will not elicit a penalty. Those who see it on television or in a news photo or from a distant sidewalk may not like it, but it will not violate a breach of the peace statute. Moreover, of course, not every flag which is physically desecrated is stolen from the Federal Government, or stolen and desecrated on Federal land. Indeed, this statute in no way changes the result in the Texas versus Johnson case, which creates the problem bringing us to the floor of the Senate in the first place. In Johnson, the State of Texas defended its flag burning statute on the ground that it prevented speech that caused violence or breaches of the peace. The Court brushed aside Texas' evidence that witnesses of Gregory Johnson's flag burning were seriously offended and might have caused disorder. Instead, the Court simply noted that-- No disturbance of the peace actually occurred or threatened to occur because of Johnson's burning of the flag. . . . The state's position . . . amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that expression may be prohibited on this basis. Our precedents do not countenance such a presumption. . . .'' [491 U.S. at 408]. The Court also determined that Johnson did not run afoul of the fighting words doctrine. The Court concluded that ``no reasonable onlooker would have regarded Johnson's generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs.'' Thus, section (a) of the proposed statute does not cover Johnson. Nor does section (b) cover Johnson, because the flag he burned did not belong to the United States. It was taken from a bank building. Finally, section (c) is inapplicable--Johnson burned the flag in front of city hall, not, apparently, on federal land. If Gregory Johnson could not be held criminally liable under the Senator's proposed statute, who could? I ask unanimous consent to enter into the Record letters from Prof. Richard Parker of Harvard Law School, Prof. Steven Pressler of Northwestern Law School, concerning the McConnell statute.

Mr. HATCH. These letters make it very clear that the analysis by CRS is flawed. My friend from Kentucky wrote an article in the December 5, 1995, Washington Post conceding that the Supreme Court had erred in its two decisions, Johnson and Eichman. As he said: ``Much to my disappointment, the Supreme Court has found that laws protecting the flag run afoul of the first amendment. It is hard to believe that burning a flag can be considered `speech.' But a majority of the court has found this despicable behavior to be `political expression' protected by the First Amendment.'' It is clear that Senator McConnell disagrees with the Supreme Court's decision. Although, as he says, ``it is hard to believe,'' the Court did hold that flag burning was speech. As the Court said in Johnson, ``The expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent.'' In these circumstances, said the Court, ``Johnson's burning of the flag was conduct sufficiently imbued with elements of communication, to implicate the first amendment.'' [491] U.S. at 406] My friend makes a critical mistake in acquiescing to the Supreme Court's erroneous decision. Simply because five Justices of the Supreme Court say that flag burning is protected speech does not mean that the Court has correctly interpreted what the Constitution means. It is, no doubt, the province of the judiciary to ``say what the law is,'' in Chief Justice John Marshall's immortal words in Marbury versus Madison. But it is not the exclusive responsibility of the courts to interpret the Constitution. In fact, the Framers of the Constitution believed that Congress would have an independent duty to interpret the Constitution and to correct errors of constitutional dimension. That is one of the purposes of article V of the Constitution, which permits the amendment of the Constitution after two-thirds vote of Congress and three-fourths approval by the States. It is clear that the Framers intended article V to be used to correct errors in constitutional interpretation made by the Supreme Court. Indeed, the 11th amendment, the first amendment ratified after passage of the Bill of Rights, was approved by Congress and the States specifically to overrule a particular Supreme Court decision, Chisolm versus Georgia. It is our responsibility to correct the Supreme Court when it is wrong. And surely it was wrong in calling this offensive, terrible conduct protected speech. Since my friend finds it ``hard to believe burning a flag can be considered speech,'' as I do, he ought to agree with me that the flag protection amendment does not amend the first amendment. It overturns two erroneous Supreme Court decisions. To obediently accept the Supreme Court's decisions in Johnson and Eichman, as my friend from Kentucky would, when we know the Court is wrong, is to read article V out of the Constitution, and is to abdicate the Senate's responsibility to the people and to the Constitution. My friend is also dead wrong to suggest that this amendment authorizes legislation to compel anyone to respect the flag. It does not. No one can be forced to salute, honor, respect, or pledge allegiance to the flag under this amendment. So my friend's invocation of speech codes is, frankly, totally irrelevant. It is a straw argument. Finally, my friend from Kentucky says ``it is hard to draw the line'' in determining what to protect. He cites vulgar or offensive renditions of our national anthem and asks, ``How can we single out the flag for special protection but not our country's song?'' Two hundred-plus years of history give us the answer. There is no other symbol like our flag. Moreover, while the national anthem is a great song, it is not a tangible symbol of the country. Ironically, the Senator's question answers itself: our national anthem, the ``Star Spangled Banner,'' is about our Nation's unique symbol. These arguments get repeated over and over, but the flag protection amendment is no precedent for any other legislative action because of the uniqueness of our flag. Even the Clinton Justice Department acknowledged that the flag stands apart, sui generis, as a symbol of our country. Right here behind me is a picture of what some of my colleagues call freedom of speech--it is pathetic. Senator McConnell said here today that prohibiting the burning of the flag ``strikes at the heart of our cherished freedom''--as overblown and exaggerated a statement as we will hear in this debate. Even one of the lawyers the Senator from Kentucky relies upon for his proposition on the issue, Bruce Fein, has written that Senate Joint Resolution 31, the flag protection amendment, ``. . . is a submicroscopic encroachment on free expression . . .'' My friend from Nebraska says we should not compel patriotism. He says that respect for the flag would mean something less if we were compelled to offer such respect. Mr. President, this straw argument is offered over and over again. The flag protection amendment does not authorize any law which compels anyone to respect the flag, honor it, pledge allegiance to it, salute it, or even say nice things about it. It does not require anything like that. So that is a straw argument. There is an obvious difference between prohibiting someone from physically desecrating our flag and compelling someone to respect it and salute it. Moreover, I am astonished that anyone can claim that respect for our flag would mean something else if we enact legislative protection of the flag. I am surprised anybody would argue that. Until 1989, 48 States and the Federal Government prohibited flag desecration. Did any of my colleagues believe their respect for the flag meant something less in 1989 than it did after the misguided Johnson decision? This issue boils down to this: Is it not ridiculous that the American people have no legal power to protect their beloved national symbol? Let me just reiterate what I said this morning. On Monday we will offer an amendment which deletes the States from the amendment. The amendment will read as follows: ``The Congress shall have power''--the Congress shall have power--``to prohibit the physical desecration of the flag of the United States.'' That is all it says. It is a very narrow amendment that says, ``The Congress shall have power to prohibit the physical desecration of the flag of the United States,'' not the States. So Senators concerned about the multiplicity of State laws protecting the flag need not worry about that anymore. There would be one definition of ``physical desecration'' and one definition of ``flag of the United States.'' And those definitions will be decided by the Congress of the United States, as it should be. And it will apply everywhere. And it will be a narrow definition. I have no doubt about it. It will be one that will work and one that will lend credibility to our values in our society, our values of patriotism, honor, dignity, country, family. That is what this is all about. This is a chance to have that debate on values, honor, dignity, family, country, yes, patriotism. I think that this amendment is worth it alone. I really do. And those definitions that would be set by Congress would need the President's signature as well because it would be a statute. And either the President will sign it, or veto it if he did not like it. So you have all these checks and balances. Let us trust the people on this matter. The American Legion and the Citizen's Flag Alliance reluctantly support this compromise. We have gone more than halfway, and I ask the opponents of the amendment to accept this compromise. Let us at least protect the flag at the Federal level. We can do it narrowly and do it fairly and do it in the right manner. I am just going to say one or two more words about the amendment. It amazes me that people come on this floor and say, ``It's terrible what they're doing to our flag. We should not allow people to smear excrement on it and put epithets and obscenities on it, and we shouldn't allow them to burn it and trample on it, and it is so terrible,'' but they are unwilling to do anything about stopping it. [[Page S 18286]] Some had the temerity to say that ``Well, we don't have that many flag burnings and that many flag desecrations.'' Well, I submit we do, because every flag desecration that occurs--and we have had them every year--every one that occurs is covered by the press and goes out to millions of people in this country, every last one. And, frankly, it affects everybody in this country every time we see this kind of heinous conduct. It is time for us to quit using these phony arguments and stand up and vote to honor our national symbol by merely giving Congress the power to honor it, if it so chooses, with the right of the President to veto whatever they do, if he or she so chooses. Mr. President, I think we debated this enough today.

Mr. HATCH

Mr. HATCH. Mr. President, for the information of all Senators, by a previous consent agreement, at 1 p.m., amendments will be in order to the constitutional amendment regarding flag desecration. However, no votes will occur and all votes ordered with respect to amendments and the final vote will occur at 2:17 p.m. on Tuesday, December 12, 1995. Also, Senators should be aware that it will be the majority leader's intention, following the flag amendment vote, to begin the debate on Bosnia, hopefully, under a time agreement.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until the hour of 12 noon on Monday, December 11; that following the prayer, the Journal of proceedings be deemed approved to date, no resolutions come over under the rule, the call of the calendar be dispensed with, the morning hour be deemed to have expired, the time for the two leaders be reserved for their use later in the day and there then be a period for the transaction of morning business until 1 p.m., with Senators permitted to speak for up to 10 minutes each, and that at 1 p.m., the Senate resume consideration of Senate Joint Resolution 31.

Mr. HATCH

Mr. HATCH. Madam President, if we want a cure for Alzheimer's, or for AIDS, or for so many other dreaded diseases, we had better not undercut the patent process. We had better not undercut the GATT process. If we want free and fair trade throughout this world, we had better make sure that we do not undercut something we fought to obtain for so many years. If we want to keep America's medical research base premier among world nations, and continue to bring forth promising technologies which help our senior citizens and so many others, this body should vote down the Pryor amendment. It would send our world trading partners the wrong message, and in the end put a huge dent in what is already a well-functioning system that benefits both the research company and the generic companies in a fair way. That is what is involved here. Let me just say one other thing. I commit here and now that we will hold hearings on this should the amendment of the Senators from New Hampshire and Ohio pass. We will hold hearings on this issue before the end of 120 days. I will commit to that as chairman of the Judiciary Committee, and I do not think anybody doubts in this body that I will not live up to that commitment, because I will. I think that is the way we should handle it and I hope my colleagues will vote against the motion to table.

Mr. HATCH. I do not know why some on the other side said that Dr. Koop said he was sorry he was ever involved. Dr. Koop's letter, dated November 30, makes it very clear he wants to be involved, that this is an important issue. Here is the letter he wrote. I know Dr. Koop as well, if not better, than anybody in this body. I was the one who, as ranking member on the Labor and Human Resources Committee, fought for his nomination through a full 9 months, if my recollection serves me correctly. I am very close to him. I did not ask Dr. Koop to write this letter. He voluntarily wrote the letter. Anybody who reads that letter and thinks there is an argument on the other side, just does not enjoy good reason. Dr. Koop is extremely clear. I think he probably would not appreciate being misrepresented. Now, with regard to congressional intent, the Federal Circuit Court of Appeals backs my position. It says: The parties have not pointed to and we have not discovered any legislative history on the intent of Congress at the time of passage of the URAA regarding the interplay between the URAA and the Hatch-Waxman Act. Therefore, we limit our inquiry to the actual wording of the statute. That is a Federal Circuit Court of Appeals, the court that has the expertise to decide these issues. I do not think anybody can doubt for a minute that the arguments I have made do not have legal backing, legislative backing, and good, commonsense backing, because they do. Recently, a Federal district court, as I mentioned before, reviewed the relevant provisions of law and concluded, ``This was no more a windfall to the''--and he names the pioneer firms which include Glaxo-- ``then the windfall that benefited many patent holders when the 17-year term of patents was extended to 20 years.'' No more of a windfall now than that was then. I might add that it is not a windfall because, in all honesty, the generic drugs will benefit greatly and have benefited greatly from the pioneer companies' development of these blockbuster drugs like Zantac. Many believe this debate is prompted by the patent status of one drug, Zantac. I do not know if that is true or not. It has certainly been a tremendously successful drug which has literally helped millions of people and would not have been developed if the logic of the other side had been adopted years ago. One of the facts that has been obscured in this debate is that, ironically, this patent has never been extended. Let me give the facts on this drug. Keep in mind it takes up to 12 years, between $359 million and a half billion dollars to put a drug like Zantac through. Here are the facts: the patent application for Zantac was submitted July 5, 1977. That patent was issued December 5, 1978 and an investigational new drug application was filed with FDA on December 3, 1979. On June 9, 1983, 3\1/2\ years after initial submission to FDA, more than 6 years after the patent application was made, the drug was approved. Upon approval, this product only had an effective patent term of about 12.5 years on the day that FDA approved this product. Now, the concern that the regulatory review period at FDA was eating substantially into the patents of new drugs was a major motivating force behind the Waxman-Hatch Act. The Food, Drug and Cosmetic Act specifies that the drug review period is 180 days. But this, as in the case of Zantac, is virtually never met by the FDA. In fact, to the contrary, it takes years to get these drugs through, at a tremendous cost. Only because Zantac was approved about a year earlier than the Hatch- Waxman law was passed, it was not eligible for the patent term extension part of the bill. In other words, it was an unfortunate fact that it did not benefit from the Hatch-Waxman bill. Had Zantac been approved after Hatch-Waxman was enacted, it could have been qualified for patent extensions that this law calls for and provides. So, Zantac, a loser under Hatch-Waxman because it could not qualify for the patent extensions that have been routinely granted as a matter of congressional policy since 1984, is now under sharp criticism for trying to take advantage of the same benefit that millions of patent holders were accorded under GATT. Not only is this ironic, it does not strike me as fair, that a product with only 12.5 years of effective patent life, which expected to have 17 years upon FDA approval, is being castigated as somehow ``unfairly'' manipulating the patent system. Even under the GATT transition rules, Zantac will receive much less than the 17-year patent life that it was supposed to receive. Yet, here we face suggestions that it is greedy for a patent holder to want to take full advantage of its patent. [[Page S 18221]] The proponents of the amendments are circulating talking points that state: But the Waxman-Hatch amendments did a second thing: They gave brand companies a 5-year patent extension. In other words, Glaxo can receive up to 25 years of patent protection under current law. And now this company receives the GATT patent protection as well. It is trying to block the generic competition Congress calls for in the GATT treaty. Now, let us just be honest about it. That information has been sent out to people here in Congress as though it were true. In fact, the statement is misleading in several ways. First, let us be clear that Zantac, as a pre-Hatch-Waxman product, did not qualify for any of the benefits of Hatch-Waxman. Second, to suggest that a company can receive up to 25 years of patent protection under current law is not only misleading, it is false. It would seem to me that the normal patent term will have to be a period of something less than 20 years, unless you make the unlikely assumption that the Patent Office approves the patent on the day the application is submitted. Also, since Hatch-Waxman time is only calculated after a patent issues, I do not see how you can ever reach 25 years, even hypothetically. I would welcome an explanation of this 25-year period. I think every patent lawyer in the country would be just fascinated with it, if it could be given. It is also the case that many believe the biotechnology patents are among those that might actually routinely lose time under the new 20- year-from-time-of-filing rule established by GATT. This is because these products often present difficult, novel issues of patentability. I cite with particularity that joint hearing between the two intellectual property committees of the House and Senate, where Lita Nelsen, Director of the Technology Licensing Office of the Massachusetts Institute of Technology, said: The 20-year-from-filing change proposed in the current bill runs the risk of substantially reducing the patent protection available for companies investing in university technology. She goes on to say: Any shortening of patent life most seriously impacts the most forward-thinking technologies, which are the very types of technologies which universities should specialize in and which we believe will most benefit the country's future technical and economic development. The 20-year-from-initial-filing rule currently being proposed offers a significant danger of shortening the time available for patent protection and therefore may have a detrimental effect on development of university technologies. She also goes on to say: Also, leading-edge technology patents, such as those in biotechnology, software and microelectronics usually take significantly longer than the so-called average patent to issue. She concludes: Finally, no one should be led to believe the 20-year-from- filing rule will lengthen effective patent life. Most of the time, for high technology patents, it will shorten the life and, more importantly, will shorten the remaining life of patent protection after the long development period is finally over and products are on the market. The fact is this. Zantac has never had a patent extension until the GATT transition rules, because it did not--it simply did not--qualify under the Hatch-Waxman statute. So, to indicate that it is going to reap the benefits of some sort of windfall is not only a misrepresentation, but it ignores several significant facts. It ignores all of the research costs which go into the pharmaceuticals we use. It ignores all of the incentives for research which must be a part of our intellectual property laws. It ignores all of the balancing we did in the 1984 law in order to accommodate the interests of these two great industries. At the same time, it attacks our international agreements for which we fought so hard for decades, as reflected in the GATT agreement and Uruguay Round agreement. It does this in a way that sends a signal to all those countries that do not believe in patents or have difficulties with our position on patents that they do not have to honor it. It shows that the United States is not serious about this agreement either. The fact of the matter is this: There are winners, there are losers in the Hatch-Waxman Act. There are winners and there are losers in GATT, and everybody knew it. Now we have one industry that has been given special privileges, privileges that I personally have helped them to get, coming in and saying we want more special privileges and we want to amend the very act that benefited them and created their industry. Frankly, I do not think that what specific company benefits and what company does not should be our focus here. Our focus should be on the right thing to do, which is to uphold GATT and vote down the Pryor amendment. I reserve the remainder of our time.

Mr. HATCH. We may yield back subsequent to that time if it helps our colleagues.

Mr. HATCH. If the Senator will yield, can we protect a few minutes on this side? I understand Senator Helms may want to speak. I might want to say one or two things.

Mr. HATCH. If I understand the distinguished Senator, I would be willing to set it within 120 days, and notify all Members when it will occur, of course. I have no problem with that. I will give advance notice about it.

Mr. HATCH. I am not adverse to hearings. I think this is that important. In fact, I think it is an appropriate way to proceed. I have to tell the Senator that we have about all we can handle for the rest of the year on the Judiciary Committee. I do not think anybody doubts that. We have the judges, the matters on the floor, and hearings scheduled. So I would be very happy to agree to some sort of date certain, at least within a time period. I think you ought to give us, I would say, at least 120 days in which to hold a hearing. But I will try to hold it as expeditiously as possible within that period. We will be fair to both sides, because I think both sides need to be fully aired on this matter. If we hold such a hearing, if the Senator prevails on his amendment, I would do that expeditiously. It would probably be some time after the first of the year, but hopefully within 120 days. The hearing will give both sides a real airing of this. We will treat this issue--not like some demagoged issue, but treat it like it should be treated, that is, as one of the most important issues in the history of trade negotiations. So it is up to the Senator. It is his amendment. But I will be happy to put it within a certain timeframe. If the Senator will tell me what he wants, I will be happy to try to do that. If the majority leader tells me, I will be happy to do that.

Mr. HATCH. That is why I want to finish my remarks. This is an important issue. As the author of the Hatch-Waxman Act, I am very concerned about it. However, I do not intend to take too much longer. We are going through the salient points. This particular chart shows R&D expenditures. NIH expenditures are the blue bars. The private sector expenditures are the green bars. The private sector means the pharmaceutical research company. In 1985 we spent more on research and development in the NIH --$4.8 billion--than was spent by the pharmaceutical companies --$4.1 billion on R&D. In 1988, R&D for the pharmaceutical companies started to surpass NIH--$6.3 billion for NIH, and $6.5 billion for the pharmaceutical companies. In 1991, the NIH spent $7.7 billion, and the pharmaceutical companies jumped to $9.7 billion. In 1995, the NIH will spend $11.3 billion on research and development. The pharmaceutical companies will spend almost $15 billion. Pharmaceutical companies are doing the job. Do not undercut them. This amendment undercuts them. This amendment appears to be a populist amendment. It seems to have appeal to those who think they are on the consumer side. But the consumer really is on both sides--one side would lead to lower drug costs on the short run, our side would lead to continued support of the research and development of drugs for the long term. Research and development benefit the generic companies because if they do not get to blockbuster drugs, the generic companies will not be able to copy them. I have already shown that the drug industry spends a relatively large proportion of its earnings in R&D and that the cost of bringing the successful drug to market is high and rising. That chart shows one of the most significant developments in the biomedical research enterprise since the passage of Hatch-Waxman in 1984. The R&D expenditures by pioneer drug companies now--for the first time in recent history--exceeds the funding of the National Institutes of Health. One of the major reasons that the United States is the world's recognized leader in biomedical research is the public investment made in NIH since World War II. American citizens have enjoyed the benefits of the close partnership that has developed among pharmaceutical and medical device firms, academic medical centers, and the NIH. The basic research conducted at and supported by the NIH is complemented by the private sector R&D efforts. This is the type of public-private partnership that we can all take pride in and should fight to retain in the future. We do not want to take away the incentives of R&D. That is what this amendment does. We all know of too many instances in which our foreign competitors have exploited their close linkages between Government and industry to wrest away U.S. industrial leadership. If we Americans leverage together our public and private sector resources, we can compete against anyone in the world. As we tighten our budget belt to put the Nation's fiscal house in order, I do not think it is realistic to expect that we will continue to see the growth rate in the NIH budget that is represented on this chart. But I want to see this growth rate of the research companies continue. Since 1988, the NIH budget has almost doubled. If we are to retain our world leadership in biomedical research it will be important to retain the incentives that will encourage drug firms and the capital markets to invest their resources in this research. This chart shows that industry is stepping up to the plate. American citizens and families around the world will benefit from this research. What is the difference between the regulatory review requirements for generic versus pioneer drugs? Let me show the difference for those of you who may not have a knowledge of FDA law. These are the steps to establish safety and efficacy for innovator drugs for these research companies, which take 12 years to complete. In 1990, this process cost $359 million. Lab and animal studies, 3.5 years; phase one safety studies, 1 year; phase 2, testing effectiveness of studies, 2 years; phase 3, extensive clinical testing, 3 years; FDA review, 2.5 years. Under Hatch-Waxman, look at how the generic benefit. We provide a shortcut for generic drugs. All they have to do to take their drug to market is to complete a bioequivalency test and establish that their drug is bioequivalent. That takes 10 to 18 weeks. That takes 10 to 18 weeks, and an abbreviated new drug process which is 6 months. That is all they have to do. They do not have to spend $359 million. They can copy that drug the minute it comes off patent and eliminate the costs. This has made and built the whole generic industry and has benefited consumers through saving billions and billions of dollars since 1984. Are we going to just make it even more difficult for these companies that have made this whole industry by now, under Hatch-Waxman, and let them just take these drugs and run with them? I fought to get this done. I believe in generics. I think this ought to continue. Let us be very, very clear about it. This is a privilege that we give no one else in patent law, and we do it for consumers. Now, are we going to now to make it very, very difficult to produce the drugs that these people have to have to be able to survive? I hope not. A study by the Tufts University Center for the Study of Drug Development estimated that it takes on average $359 million and 12 years to get a new drug approved by the Food and Drug Administration. I know that is insane, but that is what it takes. A lot of time elapses in the laboratory just determining the best drug candidates through test tube and animal studies. Three complex and time-consuming phases of human clinical trials are required to develop the necessary safety and efficacy data that must be submitted to the FDA. This testing takes time and money. It is essential in this debate to understand that the generic drug manufacturers are not required to undertake any of this extensive and expensive testing. Let no one undervalue the importance that this testing process has for the health and safety of every American. In contrast to the rigorous safety and efficacy requirements placed on the pioneer drug firms--these up here that takes 12 years and $359 million to develop a drug,--the Hatch-Waxman law provides for a much simpler and easier approval standard for generic drugs. Generic drug manufacturers can rely upon the safety and efficacy data of pioneer firms and must only show that their product is bioequivalent to the pioneer product. That can be done in a matter of weeks, not years, at a fraction of the cost and none of the risks that are faced by these pioneer firms. According to a 1992 Frost & Sullivan study, after the passage of the Hatch-Waxman Act, the average cost for a generic drug company to prepare and file an abbreviated new drug application is ``well below the million mark.'' A large part of the reason why generic drugs can be sold for less than brand-name products is that the generic companies do not have to perform the extensive research and clinical [[Page S 18217]] trials required of innovator drug companies. Nor do generic drug firms have to finance all the products that fall by the wayside. Generic drug companies piggyback on the fruits of the pioneer's research. We permit that. We want that to occur. But we should not ignore what a great thing the pioneer companies do for us. There is a tremendous amount of appeal to an amendment which appears to provide consumers with the opportunity to greater access to lower- cost drugs. If Senator Pryor's proposal were that simple, I would be for it. It is easy to get up and make it look like your approach is the only approach for consumers. But if the companies that go through these 12 years, $359 million, 5,000 tries to get one drug are undercut, we are all undercut, and the generics will not have any drugs to copy so that they can keep their industry going. It is penny-wise and pound-foolish to treat this like it is some simple little consumer versus gouger issue. It is a lot more than that. Senator Pryor's proposal is not that simple. You cannot accept it on face value. You have to delve into all the facts and the case law. Failure to examine this information about the nature of these two industries would be shortsighted at best. In fact, there could be some short-term financial gains for some if we did not provide full patent term for a whole range of products. By that logic, however, we ought to just make everything generic--generic appliances, automobiles, electronics, everything. It would save the consumers all kinds of money. It would also dry up all research and development, all technology, all the investment in quality and efficient production, including jobs and the vast array of choices Americans have as consumers. We would no longer have breakthrough drugs which are improving and saving the lives of so many millions of Americans. As I have said, I have a tremendous affection for both the brand name and generic industries. They are both important to our Nation's health care. In my view, it is clearly in the best interests of consumers that both pioneer and generic drug companies exist harmoniously in our competitive drug and medical marketplace. It serves neither the public nor this body well for us to berate continually the R&D-based pharmaceutical industry which is doing so much good in this world and ironically is the industry upon which the generic companies themselves rely. I believe we have to defeat this amendment. I understand the distinguished Senator from Ohio has an amendment to this amendment. My personal preference would be to defeat this amendment and to stand up for American trade, American technology, American research and development, for the right to keep these products coming to these generic companies, for the right of all Americans to have access to reasonable and good and lifesaving drugs and to have the incentives to get us there. By the way, just to choose Zantac as an illustration, Zantac is a therapeutically important drug. It is one of the best antiulcer medications in the world today. Of course, there are other drugs of this class. Tagamet, for instance, is already subject to generic competition. It just so happened that the company that makes Zantac, Glaxo, had gone through this long, expensive research and development process, and they were left with an effective patent term of around 12\1/2\ years after FDA approved this product. The URAA will extend its patent life for an additional 20 months or thereabouts. The fact is that the drug Zantac came out in 1983, 1 year before the Hatch-Waxman bill, and therefore had it been approved 1 year later it would have qualified for, as I understand it, 2 full years of further patent protection under the transition rules of Hatch-Waxman. In fact, Zantac was a loser under Hatch-Waxman. Well, it happens to be a winner under the GATT Treaty and Uruguay Round Agreement, and if we undercut that, yes, you might be able to say, well, they are going to make some additional revenues--I see your chart here--$3 billion, but let me tell you something. They spent millions of dollars developing this product, and they lost a substantial time of their patent term before the product was approved. Even with the time it receives under the URAA, it still does not get a full 17-year patent term. There is another side to the coin. I do not want anybody to get an unfair windfall, but it is hardly a windfall when firms are investing billions of dollars in research annually. I have to say that there were winners and losers under Hatch-Waxman, and there will be winners and losers under the GATT Treaty. But the bigger policy concern is how not to undercut the treaty and send the wrong message to the rest of the world. Undercutting intellectual property protection would be injurious to the whole world, or at least the 123 nations that agreed to GATT, and not undermining the incentives for pharmaceutical research that enables our country to be the leader in the world in this important endeavor. I do not think there is any reason for the generic companies to come in here and complain since their whole industry was created by the very bill that they are now trying to amend and take even further advantage when, in fact, they have a tremendous advantage today and will have every year that the Hatch-Waxman bill is in effect. So this is not some simple little gouging issue or some simple little equity issue. Mr. President, I have a number of concerns relating to the manner in which the language of the amendment is drafted. These concerns include: On substantive grounds, as I have argued earlier, I am opposed to the manner in which sections (a) and (b) of the amendment, respectively, act to overturn the 17 year from grant/20 year from filing choice of the URAA transition rules and the elimination of section 271(e) of title 35, United States Code, as the sole and unique remedy provided by the Hatch-Waxman Act. I am also concerned about the operation of the equitable remuneration provisions contained in section (c) of the proposed amendment. It appears to me that this provision puts the cart before the horse. Under the Hatch-Waxman law patent rights are carefully determined before a generic drug product may be approved for marketing. Section (c) of the amendment appears to reverse the operation of the URAA transition rules. Specifically, the amendment seems to allow a generic drug manufacturer to infringe and only allows a patent holder to seek equitable remuneration after the infringement has taken place. This is opposite of current law which makes a potentially patent- infringing ANDA applicant subject to an infringement action and an equitable remuneration determination prior to the commission of any infringing act. I also will seek clarification of whether this amendment would permit the marketing of generic versions of products that vary slightly from innovator products without triggering the equitable remuneration provisions. Specifically, I will seek clarification of whether the phrase in section (c), ``an approved drug that is the subject of an application described in subsection (a)'', refers to the innovator drug or the generic copy. I am also concerned about the lack of guidance on the question of what constitutes a ``substantial investment'' under this amendment and whether an innovator firm may contest such an assertion made be a generic firm. In addition, I will seek a better understanding of what standards a court should apply when reviewing the apparently unilateral finding on the part of a generic manufacturer that it has made a substantial investment. So, there are many technical questions that can be raised about this amendment. At this point, I hope I have made the case for this side, and I personally hope that Senators will defeat the Pryor amendment and that we go about keeping the industry going the way it has been going in both areas for the benefit of all mankind. I yield the floor. Mr. CHAFEE addressed the Chair.

Mr. HATCH. Why don't you get your side together, let me finish my remarks and then we will agree on a time agreement?