Orrin Hatch

Mr. HATCH

Mr. HATCH. There sure is. I will be through in a few minutes. I do not think that I will have any more to say, unless somebody asks questions. I am happy to reach a time agreement.

Mr. HATCH. I also take exception to those such as Senator Pryor and Ambassador Kantor who suggest this amendment achieves a result clearly intended by the URAA. This is the position that was taken in a September 27 letter from the FDA Deputy Commissioner for Policy, William Schultz. I must highlight with great skepticism the portion of the FDA letter that states in part: ``the URAA does not address the effect of the URAA patent term extensions on the drug approval process under the Federal Food, Drug, and Cosmetic Act * * *'' It may be true that the URAA does not address the question in a way the FDA and proponents of the Pryor amendment would like, but let us be crystal clear that the relevant statutes do, in fact, address this question. I find the characterization in the September FDA letter particularly interesting in light of the earlier May 25, 1995 FDA response to a citizen petition filed by several innovator drug firms. The May FDA statement of policy is quite explicit on what the law addresses. In that statement, the FDA acknowledged that the Supreme Court's 1984 Chevron decision provides guidance in the area of statutory construction. In Chevron, the Supreme Court instructed ``If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.'' Consider the following five direct quotes from the May FDA statement signed by Deputy Commissioner Schultz: No. 1: The agency believes that interpretation of the interrelationship between the transitional provisions of section 532(a)(1) of the URAA and 35 U.S.C. is governed by the plain language of the URAA. The second direct quote from the FDA May statement signed by the very same Deputy Commissioner Schultz: The URAA is not `silent or ambiguous' on the question of applying the transitional provision to the generic drug approval process. Let me give you the third: Moreover, this apparently is not an example of Congress having overlooked a statutory provision that might have been changed had it been aware of its existence . . . No. 4: . . . the agency does not believe that it can assert that Congress was unaware of the existence of these remedies for infringement of patents on drug products, and, therefore, did not include them among the unavailable remedies. . . of the

Mr. HATCH. Mr. President, I take a tremendous interest in this subject, in part because I chair the Judiciary Committee, which handles all patents, copyrights and trademark legislation and problems. Since the amendment would made changes in the patent code, the matter would come before the Judiciary Committee as it has in the past. In addition, I want to point out that my colleague from Arkansas was mistaken when he said the Judiciary Committee has never handled anything regarding FDA matters. In fact, I think he said, if I am correct, that the Judiciary Committee never looked at the Food, Drug and Cosmetic Act. Perhaps he was not aware that the 1962 Drug Amendments, which established the safety and efficacy standards for drugs reviewed by the FDA, were written in the Judiciary Committee. This is a result of the Kefauver hearings, which led to adoption of new amendments providing the efficacy standards which are often heralded as the model standards for the world. If there is any one thing you can point to at the FDA that protects human beings and makes sure that the medical products Americans use are safe and efficacious, it comes from work done by the Judiciary Committee. But that is not the point. Before I go to the broader policy issue, which is much more important than I think my colleagues would acknowledge, let me just call their attention to other Judiciary Committee work on the GATT intellectual property provisions. I am referring to a joint hearing in the 103d Congress before the House Judiciary Subcommittee on Intellectual Property and Judicial Administration and the Senate Judiciary Subcommittee on Patents, Copyrights and Trademarks. Pharmaceutical industry representatives, including those representing biotech organizations, and academic researchers appeared before these two combined committees. I do not want to take too long on this, but let me just take a moment or two to read from this very important joint hearing transcript. Representative William Hughes, who then was the chairman of the House Subcommittee said to Mr. Bruce Lehman, Commissioner of Patents and Trademarks: There have been some concerns raised particularly by the biotech industry, that grants of patents will be delayed because of unreasonable requests from the PTO for human trials which, as you well know, could take years for some biotechnology products to prove utility, a requirement of patentability. Is that a legitimate concern on their part? PTO Commissioner Lehman said: Well, to the extent that that is a legitimate concern, Mr. Chairman, I think that is addressed in the Patents Term Restoration and Drug Price Competition Act that extends patent terms specifically to deal with regulatory delay. Perhaps that act should be adjusted if it is not addressing the concerns of industry. By the way, the Drug Price Competition and Patent Term Restoration Act happens to be the bill that Representative Henry Waxman and I wrote back in 1984, which is considered to be one of the finest pieces of consumer legislation in the last 30 years, if not in the entire history of the country. I am very proud of that law. It is one of the reasons why I am saying this is not a question of whether somebody is going to get a windfall profit or not. This issue has very broad policy considerations. It is not just something that can be couched in terms of ``gouging the consumers,'' because there are two sides of this issue. The Drug Price Competition and Patent Term Restoration Act, the Hatch-Waxman bill, brought the two sides together. I know it. It was negotiated in my office over a 2-week period, 18 hours a day. One reason I remember it so well is because I had a root canal during that time, and by the time we got near the end I threatened to kill everybody in the room if they did get together and get it done. We finally did. It was a tense time. It was a tough time. When we got it done, almost everybody agreed that this is one of the finest pieces of consumer legislation ever. It has saved an average of $1 billion a year to consumers every year since its enactment in 1984, as we predicted it would. So, naturally, I am concerned when I hear that that act is going to be amended in an unwise fashion. If the USA, whose officials have asked heads of states all over the world to live up to these hard-won international intellectual property agreements, changes this major treaty right off the bat by reducing patent terms just because we think some companies may benefit, then all the intellectual property work we have done over all these years is going to go down the drain. But let me talk again about the Hatch-Waxman bill. There were two sides to it. There were those who were spending billions of critical dollars in research that is going to help bring down health care costs. These manufacturers are putting their money where their mouths are in order to find these breakthrough drugs that will reduce the costs of medicine over the long run and help to relieve some human misery. But one of the problems these research-based companies face is that the FDA approval process has taken so long. The agency is supposed to approve drugs in 180 days, according to the statute. That has not happened in fact. It has taken so long that the patent terms are eaten up by the delays. So, there were those on the side of the research companies who said-- and I was one of them--that what we must do is restore some of the patent term lost through unnecessary regulatory delays. The other side consisted of those representing the interests of the generic drug industry. I understand that those who support the Pryor amendment do so because they are worried about consumer costs. What their arguments neglect however, are two simple questions: What are consumers going to consume if we do not put money into research? And what will consumers consume if there are not the incentives to produce the products they need? The thing that has made the United States the greatest research country in the world is that we protect patents as a property right in the Constitution itself. This, again, is another Judiciary Committee concern for those who do not seem to appreciate that point. There are those on the consumer side who legitimately asked why it takes so long to get generic drugs approved after the innovator drugs come off patent. They suggested the availability of an abbreviated new drug application so they did not have to go through the whole safety and efficacy process. It would have taken them 2 to 3 years to take a product like Zantac-- which I mention since that product has been attacked here--and duplicate it so that they can reduce the price for the benefit of consumers. So what did we do? We worked hard to enable those generic companies to be able to do what would be called infringement in any other industry. As a consequence of this change, these generic manufacturing companies were able to borrow from the work of the research-based companies who are spending as much as half a billion dollars to produce one marketable drug, and produce a bioequivalent of a [[Page S 18209]] drug such as Zantac that becomes effective the day Zantac comes off the patent. Or a better illustration might be Valium. When Valium's patent expired, the Hatch-Waxman bill provided that all kinds of generic companies were able to produce their version of Valium that very day, rather than be delayed the 2 or 3 years through the whole process again. That is important, because what we did is bring both sides together to create the generic industry as we know it today. In fact, I am proud to have been called on occasion ``the father of the generic drug industry.'' So I have a tremendous interest in making sure that the generic industry is solid and producing lower-cost drugs. But I also have a tremendous interest in seeing that research companies are given fair deals on their patents. Now, when we came up with the Hatch-Waxman bill we knew there would be winners and losers. Both sides knew this. They were willing to make trade-offs in order to accomplish a greater goal. We knew there were winners and losers with the Waxman-Hatch bill, and we also knew that when GATT was finalized there would be winners and losers. Now, I think Dr. Koop's position has been misrepresented by the other side, some of whom do not think he understands what really went on. There seems to be some confusion about Dr. Koop, our former Surgeon General, who is probably the leading doctor in the history of this country. I think Dr. Koop has a pretty good reputation in the field of public health. He was a most outstanding Surgeon General. I did not always agree with him, but I always respect his views. Dr. Koop wrote a letter to clarify that those on the other side could not misrepresent his position any more. That letter is printed in today's issue of Roll Call. It makes, I believe, an eloquent case against the Pryor amendment. I will submit for my colleagues' consideration this letter to Morton Kondracke, Executive Editor of Roll Call, from Dr. C. Everett Koop, former Surgeon General of the United States. I ask unanimous consent that the full letter be printed in the Record at this point.

Mr. HATCH. Preserve patent protection and you preserve the opportunity for the discovery of future cures and treatment for disease. Undercut that protection and you undercut America's hope for new and better answers to our health care needs. It is for this reason that I must rise tonight in opposition to the amendment offered by Senators Pryor, Chafee, and Brown. Whenever Senator Pryor and I join in debate over pharmaceutical issues, I am sure some of our colleagues want to say, ``Here we go again.'' Well, here we go again. Mr. President, I oppose this amendment because the current statutory framework, as interpreted by several recent court decisions, reflects sound policy and should not be disturbed. I am glad we are having this debate today, as I welcome the opportunity to put the issue in better perspective. This is a debate that cuts across party lines. Reasonable people may disagree about the best course of action to take on this amendment, but it is still the same debate: Who is going to benefit, the research companies or the generic companies? The generics have benefited greatly from what I have personally done for them, and so have the research companies. But our overriding goal here must be to make sure we keep in place the incentives necessary for America to continue as the world leader in developing innovative medical technologies that can be delivered at competitive prices. The bottom line is that the Pryor amendment would undermine that goal. At the end of this debate, I am hopeful that my colleagues will share my strong conviction that two relevant laws--the Drug Price Competition and Patent Term Restoration Act, sometimes known as Waxman-Hatch or Hatch-Waxman and the GATT Treaty--act together to advance important public health and trade policies. I believe it is clear that the Senate must reject the Pryor amendment if we are to maintain that balance. Let me summarize my three basic objections to this amendment: First, many experts in international trade believe that the adoption of this amendment would send precisely the wrong signal to our trading partners, some of whom have had notorious track records of being patent-unfriendly. A major gain we made with GATT was to win international harmonization with a 2-year patent term. Adoption of the Pryor amendment could cause backsliding on the part of foreign countries required to implement and enforce their obligations under GATT. Let us not steal defeat from the jaws of victory. Second, the Waxman-Hatch Act achieved a careful balance between the generic and innovator sectors of the pharmaceutical industry. The proponents of the Pryor amendment urge that only one industry is singled out for different treatment under the GATT implementing legislation. What is absent from that line of argument is the fact that only one industry, the generic drug industry, is permitted by current law to engage in activities that in any other industry would constitute patent infringement, as I have said before. A recent Federal district court reviewed the relevant provisions of law and concluded, ``This was no more a windfall to the * * * [pioneer firms] * * * than the windfall which benefited many patent holders when the seventeen year term of patents was extended to twenty years.'' [[Page S 18210]] Third, if the Pryor amendment is adopted, it may run afoul of the takings clause of the fifth amendment to the Constitution. Patents are recognized and protected by American courts and by our Constitution as property. By repealing patent extensions granted under the GATT legislation and reducing vested patent terms, the Pryor amendment could trigger the guarantee that affected property holders receive just compensation. I ask unanimous consent that a copy of an October 24 ``Dear Colleague'' letter signed by a bipartisan group of 11 Senators, and a December 6 ``Dear Colleague'' letter discussing these issues be printed in the Record at this point.

Mr. HATCH. If the Senator will yield, I will be happy to answer that. I will be happy to answer that. It is because it involves a hallowed and important element in the history of this country and in the world, and that is patents. We happen to handle patents. It involves intellectual property. It also involves an international intellectual property agreement which we better be careful of here, because there are a lot countries out there that do not honor intellectual property. There are a lot of countries out there that do not believe in patents. Or, if they do not believe in patent terms--if, after a multiyear negotiated agreement in international relations, intricate, negotiated every line of that agreement--it is bunk to say that this was a mistake. We then retrench on patent terms the first time out of the blocks when we have gone all over the world talking about intellectual property, respect for intellectual property, and for other countries to treat American products fairly. And right out of the blocks we say we have to do away with that, you send a message that we are going to wreck the world window on the rest of our lives. We have taken years to get to this point. I am going to have a lot to say on why there are two sides to this thing, and that it is more important to uphold the international treaty, uphold the international patent protection, than it is to demagogue on this particular issue. I will make my points afterwards. But the reason it is sent to the Judiciary Committee is because it involves the most important aspects of the patent law and intellectual property law. That is what is involved here.

Mr. HATCH. Not if it involves patents.

Mr. HATCH. Sure.

Mr. HATCH. As the ``Dear Colleague'' letters point out, what is at stake here is not just the patent status of a few drugs, but also our international trade posture and the complex set of incentives and regulations that govern our Nation's biomedical research and development network. Let me turn to a more detailed explanation of my position. As my colleagues are aware, the Uruguay Round Agreement Act--the URAA--is the statute that implements the GATT Treaty. Some have said today that the GATT patent amendment merely corrects a simple oversight made in drafting the GATT implementation bill. This is simply not true. And wishing will not make it so. Negotiations on the GATT Treaty were exceedingly detailed and complex. They took place over many years--in fact, across the terms of four American Presidents. Given the ample opportunity for this issue to have arisen previously, it seems to me that those who argue we should adopt this after-the-fact technical correction amendment should face a heavy burden. Their case is, and should be, severely undercut by the fact that the Congress made changes in the very sections of the relevant laws that we are now being told were not amended as a simple matter of oversight. One of the chief benefits that the GATT Treaty can achieve for the American people is to increase international protection of intellectual property. These important agreements are set forth in the Agreement on Trade- Related Aspects of Intellectual Property, the so-called TRIPS provisions. A key aspect of TRIPS was to require that all 123 GATT signatory countries adopt a minimum 20-year patent term, measured from the date that a patent application is filed. Strengthening international recognition of intellectual property rights such as patents was one of the most important gains we made in the adoption of the GATT Treaty. These rights act to protect innovative American firms, which all to often have been the victims of unscrupulous behavior by foreign competitors who have expropriated American know-how. Obviously, all World Trade Organization member countries must take seriously their obligations to respect intellectual property rights under the GATT Treaty and ensure that there will be no back sliding. It is vital that America must also be perceived as honoring its obligation as a World Trade Organization member. I recognize that Ambassador Kantor has been identified as one who is supportive of this type of Pryor amendment. In a September 18 letter to Senator Pryor, Mr. Kantor takes a view that the approach advocated by the Pryor amendment does not weaken the campaign for stronger patent protection abroad and reflects the intent of the drafters of the URAA. I disagree with him, and I disagree with Senator Pryor on both scores. First, I would like to point out that two former U.S. Trade Representatives, William Brock and Clayton Yeutter, have stated that the recently adopted GATT Treaty is a major improvement that benefits the American public. They have explained that changing the implementing legislation now sends exactly the wrong message. Mr. President, both of these international trade experts were active participants in the TRIPS negotiations during their respective stewardships at the U.S. Trade Representatives' Office as U.S. Trade Representatives. As Mr. Yeutter wrote to the Finance Committee in September of this year: In the Uruguay Round, one of the principal objectives of the United States was to strengthen international protection of patents, trademarks, copyrights, trade secrets, and semiconductor lay-outs. The United States leads the world in ideas and innovation, particularly in cutting-edge technologies such as pharmaceuticals and biotechnology. Thus, . . . TRIPS . . . was a major breakthrough for the United States. He goes on to say: In my view, adding further preferential exceptions to the Uruguay Round's 20-year minimum patent term, for the generic drug industry or anyone else, would set an unfortunate precedent and seriously undermine U.S. efforts to secure stronger International IPR disciplines. Many developing countries have long opposed effective patent protection for pharmaceuticals and agricultural chemicals in order to protect domestic industries engaged in illicitly copying American products. As Mr. Yeutter clearly indicates, there are strong trade policy arguments for standing firmly behind this new 20-year rule. These concerns were also shared by another former U.S. Trade Representative, William Brock. In a recent letter, Senator Brock explained the significance of the GATT intellectual property provisions: When I first proposed international agreements to extend intellectual property protection worldwide under the GATT, no one believed it could be done. Yet it was the crowning achievement of the recently successful Uruguay Round. . . Now I hear that some pending proposals could imperil the implementation of that agreement. I refer specifically to legislation recently introduced by David Pryor. . . . Proponents suggest that this legislation is only a ``technical'' correction to the . . . URAA . . . and neither weakens patent protection . . . nor diminishes the United States' ability to fight for stronger international patent protection. I disagree! Senator Brock goes on to say as former Trade Representative: It will be difficult, if not impossible for the United States to force other nations to adhere to the TRIPS agreement if we set this unfortunate precedent. In sum, in exchange for the hope of short term savings, the Pryor proposal could cost all U.S. firms and workers the enormous long term gains we worked so hard to achieve in the Uruguay Round. That is penny wise and pound foolish. When the comments of these two former U.S. Trade Representatives are contrasted with the views of Mr. Kantor, and my friend from Arkansas, Senator Pryor, it is clear that this is the type of issue upon which reasonable and honorable people may disagree. I understand that the proponents of this amendment are motivated by good intentions, but I think they are on the [[Page S 18213]] wrong side of both the law and the policy on this issue. In further support of my viewpoint I point out that Ambassador Kantor's counterpart at the European Commission finds the Pryor approach extremely troublesome. Now, if you know the British, when they say ``extremely troublesome,'' that is about as strong a statement as they can make. Sir Leon Brittan has informed the current U.S. Trade Representative: I am therefore concerned that the adoption of these proposals (or for that matter, any other bill which aims at achieving the same objectives) would send a negative and highly visible signal to those numerous countries which are still in the process of preparing new legislation on the protection of pharmaceutical innovation. This information should dispel the myth that there are no important trade implications at stake in this debate. It should dispel the myth that the Pryor amendment has no potential negative impact on our efforts to enhance international respect for intellectual property laws. I ask unanimous consent that the remarks of Clayton Yeutter, Bill Brock, and Sir Leon Brittan be printed in the Record.

Mr. HATCH

Mr. HATCH. Thank you, Mr. President. Mr. President, I rise today to urge my colleagues to support passage of the Commerce, Justice, State appropriations bill as it has come from the Appropriations Committee so that we can get it to the President. As everyone is well aware, the President has signaled that he will veto this bill. We need to pass the bill and then begin the task of fixing any of the remaining problems contained in this legislation. We are at a watershed moment in this Nation's history. We are deciding whether or not we will have a balanced budget or whether we will continue to plunge our Nation into debt and mortgage our children's futures. This bill represents one piece in the puzzle to achieving a balanced budget. While imperfect, this legislation nevertheless represents an honest effort to achieve a fiscally responsible Federal budget. Of course, there are programs that I would like to receive more money. I am sure there is not a single person sitting in this Congress who would not want to spend more money on some particular program or issue. This bill, however, represents a compromise between our desires, and our true, fiscally responsible, law enforcement needs. To my colleagues that voted for the balanced budget amendment, I would ask them to vote for this bill. To my colleagues who voted against the amendment, but believed we needed a balanced budget and could achieve such a budget, I tell them now is their hour. Now is the time. This is an opportunity for them to prove that they can exercise the discipline and restraint needed to achieve a balanced budget. Even with the cuts necessary to achieve a balanced budget, I would note that the Department of Justice receives a nearly 20-percent increase over fiscal year 1995. The violent crime reduction trust fund, moreover, will be increased by some $1.6 billion. While the conference bill does not provide federal law enforcement with as much money as I might otherwise want it to, it nevertheless represents an enormous commitment to fund core federal law enforcement programs. For example, the conference report provides the Immigration and Naturalization Service with nearly $2.6 billion. This represents a 23.5-percent increase over fiscal year 1995 enacted levels. The conference agreement provides funds for 800 new Border Patrol agents and 160 new support personnel. If you look at this chart, the Department of Justice budget authority between 1990 and 1996, you can see that it is going up dramatically from around $8\1/4\ billion up to almost $16 billion. It has almost doubled in the last 6 years. So we are spending an awful lot of money, and I think doing it in the right way. The bill also increases, by some 1,400 positions, personnel dedicated to apprehending, locating, and deporting illegal aliens. The FBI receives over $2.5 billion, a 9.8-percent increase over 1995 enacted levels. Additionally, construction funds are provided to renovate the FBI Command Center, to modernize the FBI Training Academy for use by Federal, State, and local law enforcement officers, and to begin construction on a new FBI laboratory. Similarly, the U.S. attorneys offices receive an over 8.5-percent increase in funds compared to the 1995 enacted levels. The DEA receives some $806 million, a 6.4-percent increase over last year. This provides DEA with funds to improve its infrastructure and to better support investigative efforts. In addition to these law enforcement expenditures, the bill also fully funds the Violence Against Women Act, legislation that I worked on with Senator Biden to get passed last year. As most of my colleagues are aware, I have long opposed programs I believed were mere pork projects. In fact, I led the battle against last year's crime bill because I felt that it had ballooned in terms of unjustified costs. The Violence Against Women Act, however, is an important program that deserves to be fully funded. The act provides funds for: rape prevention education; battered women shelters; the investigation and prosecution of domestic violence and child abuse in rural areas; treatment and counseling programs for victims; and grants for developing community domestic violence and child abuse education programs. These programs are vitally important. Prosecutors and police officers must become more sensitized to the problem of violence against women. Women who are abused by their spouses must have a place to stay and must have counseling available to repair their shattered lives. Resources need to be channeled to stem the tide of violence directed against women. According to Justice Department data, nearly a half-million women were forcibly raped last year. Some studies estimate that the total number of rapes, including those not reported to authorities, may exceed 2 million. Similarly, domestic violence strikes at the heart of the most important political unit in America--the family. The family should be a safe harbor for those tossed about by the storms of life, not a place of abuse or degradation. The act is one small, albeit vital, step toward addressing the problem of family violence, and violence against women generally. A vote for this conference bill means a vote to combat violence against women. The conference bill also contains legislation I introduced with the distinguished majority leader to reform frivolous prison litigation. This landmark legislation will help bring relief to a civil justice system overburdened by frivolous prisoner lawsuits. In 1994, over 39,000 lawsuits were filed by inmates in Federal courts, a staggering 15-percent increase over the number filed the previous year. The vast majority of these suits are completely without merit. Indeed, roughly 94.7 percent of these suits are dismissed before the pretrial phase, and only a scant 3.1 percent have enough merit to reach trial. In my home State of Utah, 297 inmate suits were filed in Federal courts during 1994, which accounted for 22 percent of all Federal civil cases filed in Utah last year. The crushing burden of these frivolous suits is not only costly, but makes it difficult for courts to consider meritorious claims. Indeed, I do not want to prevent inmates from raising legitimate claims. While the vast majority of these claims are specious, there are cases in which prisoners' basic civil rights are denied. [[Page S 18137]] Contrary to the charges of some critics, however, this legislation will not prevent those claims from being raised. The legislation will, however, go far in preventing inmates from abusing the Federal judicial system. They will have to pay something to file these charges, and that stops a lot of the frivolous cases right there. And there are other mechanisms that will make them think twice before they file frivolous law suits. This legislation will also help restore balance to prison conditions litigation and will ensure that Federal court orders are limited to remedying actual violations of prisoners' rights, not letting prisoners out of jail. It is time to lock the revolving prison door and to put the key safely out of reach of overzealous Federal courts. As of January 1994, 24 corrections agencies reported having court- mandated prison population caps. Nearly every day we hear of vicious crimes committed by individuals who should have been locked up. Not all of these tragedies are the result of court-ordered population caps, of course, but such caps are a part of the problem. While prison conditions that actually violate the Constitution should not be allowed to persist, I believe that the courts have gone too far in micro- managing our Nation's prisons. This bill also contains important changes to the Prison Grant Program. The conference bill provides nearly $618 million in grants to States to enable them to engage in the emergency buildup of prison space and to encourage the States to adopt tough truth-in-sentencing laws. In contrast, the President requested only some $500 million for prison grants. The conference bill makes four key changes to the prison grants provisions included in the 1994 crime bill: First, it authorizes significantly more resources to assist the States in implementing a much-needed emergency buildup in prison and jail space. Second, it removes onerous and unnecessary Federal strings that were attached to the 1994 grant program, and that would have eaten up a significant portion of the grant money provided. Third, it ensures that the Federal money will be used to increase available prison space, instead of permitting the funds to be used for a variety of so-called alternative sanctions, which would have left the States in the same dire need of prison space at the end of the grant program as they are now. Finally, it includes meaningful incentives--not mandates--for the enactment of State truth-in-sentencing laws. Prison crowding in many of our States has reached crisis proportions. The average prison system in the United States is operating at 112 percent above its rated capacity. In 24 States, prisons are under court-ordered population caps. And, in 1993, an estimated 21,000 inmates in 18 States were released under so-called emergency release programs to relieve crowding--the ``Corrections Yearbook,'' 1994. In other words, 21,000 criminals were returned to the streets not because they were no longer a threat to law-abiding citizens, but merely because there was not enough room to keep them in prison. The Federal Government, of course, cannot solve this crisis for the States. But it can and should provide meaningful emergency assistance. This bill also provides meaningful incentives for States to enact truth-in-sentencing laws. At least 50 percent of the funds under this program are reserved for States that practice truth in sentencing. It is appropriate for the Federal Government to encourage the States, through the provision of extra funds, to adopt truth-in-sentencing laws that honestly tell citizens--and warn criminals--what the penalty is for breaking the law. This does not mean that the Federal Government should dictate any particular sentencing system or sentence length. But it does mean that those States with criminal justice systems that mean what they say should be rewarded. I would like to briefly dispel a misconception about this truth-in- sentencing provision. Some of my colleagues are concerned that this provision will mandate that States adopt long sentences that they cannot afford to impose. This is simply not the case. The issue is not sentences of any particular length, rather, it is truth in sentencing. Recent data from the Bureau of Justice Statistics demonstrate that as of 1991, State prison inmates serving sentences for violent offenses expected to serve less than half of their sentences. The data also show that the inmates' expectations were accurate-- violent prisoners released in 1994 served an average of only 46 percent of their sentences--``BJS Selected Findings, Violent Offenders in State Prison: Sentences and Time Served, July 25, 1995.'' Moreover, in 1991, the Department of Justice reported that the average murderer was sentenced to 20.5 years, but served only 7.7 years; the average rapist was sentenced to 13.3 years, but served only 4.6 years; and the average robber was sentenced to 9.9 years, but served only 3.3 years. This is outrageous. Continued public confidence in our criminal justice system requires that sentences mean what they say. A 20-year sentence should not mean release in 7 years, once a person has committed a murder and been convicted of it. This legislation will provide the States with grant incentives to ensure that violent criminals serve the sentences imposed. Furthermore, Federal incentives work. A recent report from the National Institute of Corrections stated that of the 29 States that considered truth-in-sentencing legislation in the 1995 legislative session, 60 percent reported that Federal incentives were a significant factor, and 20 percent reported that these incentives were the main or only factor. Thus, even under last year's weaker truth-in-sentencing provisions, progress is being made. However, this bill is necessary to protect those gains and ensure that they continue. Under last year's bill, States may qualify for truth-in-sentencing funds by enacting laws providing for truth in sentencing only for second-time violent offenses. Even more astonishing, States that do nothing to change their laws could end up with a chunk of the truth-in-sentencing grants by simply waiting for the funds to revert to the general grant fund, as the last year's bill provides. Keeping faith with the States that have made legitimate strides in their area requires that we eliminate these potentially unfair loopholes. It is also vital, however, that we provide allowances for differences among state correctional policies, and not penalize States that practice indeterminate sentencing, yet do an admirable job of keeping violent criminals off the streets. My home State of Utah, for example, employs a release guideline system that allows the board of pardons to keep the worst criminals off the streets longer than would be possible in many determinate sentencing systems. This amendment accommodates successful indeterminate sentencing States. Finally, I would like to address the law enforcement block grant proposal. While I do not fully support the language of the current proposal, I nevertheless believe we should pass the conference report and fix the problems after the President returns it to us. This proposal improves, at least in certain respects, the administration's so-called COPS Program. I understand that the President prefers the COPS Program, but I believe that a block grant program better supports the local communities law enforcement needs. To begin with, this program moves us away from the Washington-knows- best philosophy. The proposal returns responsibility to frontline local law enforcement officials. If, for example, a community believes community-oriented policing works best in its jurisdiction, it can hire police officers and structure a community policing program. If, however, the community needs bullet proof vests or communications equipment, it can buy that equipment with these funds. A serious problem with the so-called COPS Program is that the award is entirely discretionary. It lacks a solid formula and instead depends upon the good graces of Washington bureaucrats to distribute the money. The conference report, however, establishes a formula to distribute the money on a fair, consistent basis. Communities will no longer have to wonder whether or not they are going to receive a grant. [[Page S 18138]] This proposal also contains a lower matching requirement than the President's program. Therefore, poorer communities can hire more police with less of a financial strain on the community. By lowering the match, we do not penalize poorer cities that cannot afford it. This is what the American people want--assistance in handcuffing criminals not handcuffing communities. Critics complain that a block grant will lead to the abuses of the old LEAA Program of years past. I would note, however, that LEAA did far more good than harm. And many of the LEAA grants occurred before the professionalization of the Nation's police forces. I do not believe that the excesses that occurred under the LEAA would occur under the proposed legislation. Indeed, I think that the Byrne grants stand as a testament to the ability of local communities to wisely look after their own best interests. While this conference report is imperfect, I encourage my colleagues to support it and permit us to fix any remaining difficulties after the President has vetoed it. In closing, I would just like to thank Senator Gregg for his work on the report. He has consistently sought out the views of the Judiciary Committee and has attempted to incorporate our views into the final product. I look forward to working with Senator Gregg.

Mr. HATCH. The problem is, the numbers they use are unreliable, and are based on assumptions which are either unprovable, or simply untrue. Indeed, an early Department criticism of this grant program stated that: [t]he way the funds are divided among qualified States prohibits the determination of grant amounts until all States applications are submitted and reviewed for compliance, and grant decisions are made. Yet the figures being bandied about purport to be exactly such determinations. There are several sets of numbers floating around. Apparently, the Department would run figures based on any assumption given them. In such a case, one really can use statistics to prove anything. As just one example of the wildly varying sets of numbers released by the Department, under one set, my State of Utah would receive no money in fiscal year 1996, in another it would qualify for $2,324,958, and under a third scenario, Utah would receive $4,350,000. There is even a fourth analysis, under which Utah receives more than $7.3 million. I understand that a fifth analysis exists that gives Utah nearly $6 million. At this rate, eventually the Department will be reporting that all of the money will go to Utah. While my State, like each of our States, can certainly use prison grant assistance, this only highlights the spurious nature of these so-called analyses. Each of these analyses presumably are evaluating the same program. As an example of assumptions used in the analyses that are simply untrue, the Department has repeatedly assumed that the grant program would be funded at a level of $500 million in fiscal year 1996. Yet the conference report which the Department purports to be evaluating clearly appropriates $617 million for the program. Moreover, several of the Department's analyses assumes that all $500 million assumed appropriated pursuant to the 1994 crime bill would be applied directly to grants, while it assumes that under the conference report, only $300 million would be applied to grants. With such a starting assumption, it is hardly surprising that the analyses would conclude that States will receive less funding under the conference report. The problem is, the premise simply isn't true. While the conference report admittedly utilizes $200 million of the $617.5 million appropriated to provide extra assistance to truth-in-sentencing States with high numbers of criminal aliens, there is absolutely no reason to believe that Congress would not do the same thing if no other change were made to the prison grant program. Implying otherwise to arrive at the desired result is disingenuous. Some of the Department's results may be skewed on political grounds. Some of the results look peculiar indeed. For instance, one analysis purported to show which States would qualify for truth-in-sentencing grants, which would qualify for the less-lucrative general grants, and how much each State would receive under the conference report. Perhaps it is only a coincidence, but among the 28 general grant States in this analysis were 16 States that are represented in the Senate by 18 Senators who sit on either the Judiciary Committee or the Commerce, Justice, State Appropriations Subcommittee. There is much more one could say about the numbers being bandied about by the Department of Justice on this issue. I will say no more about them, except to comment that this debate should involve policy arguments, not political scare tactics. The bottom line is that I believe that, if it is administered in an unbiased manner, all our States will receive a fair share of funds under this bill--a share that is proportionate to their crime rate and to their efforts to keep criminals off the streets. If a problem with the language does exist we will certainly fix it on the next round. This bill is not perfect. But it has its priorities right, and devotes significantly more resources to the incarceration of violent prisoners than the fiscal year 1995 appropriation bill did. That bill appropriated only $24 million of an authorized $175 million. I believe that we can do better, and this conference report does so. I urge my colleagues to support it. Furthermore, my friend from Delaware has also criticized the indeterminate sentencing provisions in the conference report. I listened with great interest to my colleague's remarks. I am certain that it was not his intent to imply that this provision was designed to harm other States. The truth is, 34 States practice some form of indeterminate sentencing. In many instances, violent prisoners can be kept in jail longer in these States than in determinate-sentencing States. For instance, in Delaware, even if they keep a prisoner in jail 10 years, he could be out in 9. In a system like Utah's, the same criminal could be sentenced to 5 to 15 years. Using criteria very similar to the Federal sentencing guidelines, the Utah Parole Board can keep the prisoner in for 5 more years. This bill does nothing more than level the playing field for indeterminate States that keep violent thugs locked up. [[Page S 18165]] Exhibit 1

Mr. HATCH. Mr. President, I would just like to make a few comments with respect to Senator Biden's remarks. First, Senator Biden remarked that the process by which this bill was brought to the floor was problematic. I agree, the process was imperfect. I would rather have brought the authorizing language through the normal process. I would note, however, that we have already held more hearings on the authorizing language in this bill than the Judiciary Committee held on the entire 1994 crime bill. I think it's tough to argue about the process by which this bill was sent to the floor. Second, I would like to address the so-called cuts to Federal law enforcement. Federal law enforcement is increased nearly 20 percent over 1995 levels. And I would note that since 1990, the only real cut to Federal law enforcement came in the President's first budget. Indeed, Congress actually restored the President's cuts. For example, the Commerce, Justice, State conference report funds INS at an increased rate of $2,557,470,000. The conference report provides over a 23.5-percent increase of fiscal year 1995 enacted levels. This increase provides funds to better control our borders and to stem illegal immigration. The conference report provides funds for 800 new border patrol agents, 160 support personnel, and allows for better INS efficiency by redeploying interior agent positions to locations where the illegal immigration problem is most severe, the border. The report also increases, by 1,400 positions, personnel dedicated to apprehend, locate, detain, and deport illegal aliens. Funding is also provided for over 2,800 detention beds and funding for antismuggling units. Construction funds are provided for a triple fencing pilot project in southern California and funds to renovate a naval base for use as an INS satellite training facility. Although the FBI does not receive quite the funding that I would like it to, it nevertheless receives a substantial increase over 1995. The conference report represents over a 9.8-percent increase compared to fiscal year 1995 enacted levels. This increase provides resources enabling the FBI to address many projects and initiatives. These initiatives include: Personnel to staff the FBI Command Center; FBI legal attaches; safe streets task forces; FBI laboratory equipment and personnel; emergency response teams; upgraded databases on gangs; State, local, and Indian tribal law enforcement training; aviation maintenance and equipment; and wireless radio communications. Construction funds are provided to renovate the FBI Command Center, to modernize the FBI Training Academy for use by Federal, State, and local law enforcement officers, and to begin work on a new FBI laboratory facility. The conference report does not include a $29 million request relating to the full annualization of personnel that could have been hired in fiscal year 1995. In light of this hiring delay, however, the full personnel funding request is not necessary. The report provides significant funding for U.S. attorneys offices as well. The $925,509,000 in the conference report represents over a 8.5- percent increase compared to the fiscal year 1995 enacted levels. Funding will support expedited deportation of denied asylum applicants, Federal victims counseling under the Violence against Women Act and increased demands for criminal prosecution and related activities. The conference report also pays for security upgrades at U.S. attorneys offices, increased prosecutions of immigration laws, and funds to maintain attorney and support personnel levels for the prosecution of violent crime. The DEA also received an increase in this bill, as it should. Drug use is the scourge of America, and it needs to be combated. I fought for $60 million in trust fund money for the DEA during the Comprehensive Terrorism Prevention Act. I appreciate the Appropriations Committee taking my funding recommendation into account and providing DEA with $60 million of trust fund money. The conference agreement provides over a 6.4-percent increase compared to fiscal year 1995 enacted levels. This provides to the DEA funds to improve its infrastructure and to better support investigative efforts. The conference report includes program increases for the DEA's legal attache program, contract linguist support, advanced telephony, office automation, new agents for domestic heroin enforcement, mobile enforcement teams, and wireless radio communications. The conference report does not include $15 million requested relating to [[Page S 18164]] full annualization cost of personnel that could have been hired in fiscal year 1995. In light of this hiring delay, however, the full request personnel is not necessary. The marshal's service is also adequately funded under the bill. The conference report provides over a 12.9-percent increase compared to fiscal year enacted levels. This agreement provides funds to upgrade security at existing courthouses. Additionally, it provides additional security personnel, equipment, and communications funds for new and expanded courthouses. As for today, we are trying to balance the Federal budget. The President's request for Federal law enforcement was not made in the context of balancing the Federal budget. He has the luxury of not balancing the budget. I would certainly like to put more money back into Federal law enforcement, but where will that money come from? I would ask if we do not balance the budget now, then when will we do it? Where should we take the money from? The plain truth is, this bill is an increase to Federal law enforcement--an increase of 20 percent. The only budget passed here in recent years that cut Federal law enforcement was Fiscal Year 1994--The first full Clinton budget. I would also like to comment on the Prison Grant Program Senator Biden mentioned. The Department of Justice has engaged in what might be charitably characterized as a campaign of misinformation about the prison grants provisions contained in the conference report. For example, while committee staff was working on the details of these provisions, the staff solicited and received informal comments from the Department's Office of Policy Development. The Department's comments contained numerous factual errors. For example, I was quite surprised to receive a letter on behalf of the American Society of Corrections Administrators [ASCA] which parroted, errors and all, the Department's informal comments. These comments were apparently transmitted to corrections departments in every State. As the corrections director of my State of Utah, who serves as the legislative committee chairman of ASCA, noted in a followup memorandum to the association's executive director: These informal comments appear to be designed to sidetrack or block any congressional attempts to revise the 1994 crime bill in any way as the administration admittedly does not want any revisions to this Bill. Recently, the Department has been circulating a series of spreadsheets containing data purporting to demonstrate how many of our States would suffer under the conference report as compared to the 1994 crime bill. I ask unanimous consent that two of the analyses to be printed in the Record following my remarks.

Mr. HATCH

Mr. HATCH. Mr. President, I was deeply saddened last week when I learned of the death of our beloved former chaplain, the Rev. Richard C. Halverson. Reverend Halverson served as Chaplain of the Senate for 14 years, assuming this post on February 22, 1981. He [[Page S 18126]] retired on February 5, 1995. I regret that his retirement, the time he had so looked forward to spending with his family and many friends, was cut so short. But, the time and service he gave to the Senate will always be appreciated by those of us who benefited from his positive outlook and his constant good humor. Rarely was Dr. Halverson seen by Senators, staff, or support personnel without a smile and a ``God bless you.'' And, perhaps the one thing I admired most about Dr. Halverson was the fact that he served not only the institution of the Senate, but also Senators as individuals. He could see beyond policy debates, beyond partisan politics, beyond institutional glamour and mire. He could look beyond our roles on this great international stage and help us carry the burdens we felt as husbands or wives, parents, neighbors, or friends. Though ordained as clergy in the Presbyterian denomination, his ministry reached out to us all. Catholic, Jew, Methodist, or Mormon, Dr. Halverson helped us all to remember that our walk in faith was infinitely more important than any legislative battle of the moment. Like all Senators, I mourn the death of this man of God, but give thanks for the opportunity to have known him and to have served this body with him. I join my colleagues in extending heartfelt sympathy to his family.

Mr. HATCH

Mr. HATCH. Mr. President, I wish to pay tribute to an extraordinary woman, Frances Marion Grant Bennett. On November 17, 1995, Frances passed away leaving behind an incredible legacy of service and love. Frances comes from and leaves behind a remarkable heritage. She was born in Salt Lake City, UT, on September 23, 1899, and was the last surviving child of the late Latter-day Saints Church President Heber J. Grant, and his wife Emily Wells Grant. She was also the wife of a U.S. Senator, Wallace F. Bennett, who served for 24 years in the U.S. Senate; and was the mother of five children, including Robert F. Bennett, currently serving in the U.S. Senate. In addition, she was the grandmother of 29, and the great-grandmother of 74. Her family members adore, praise, and love her with all of their hearts. Frances was an accomplished musician. She was a gifted pianist and student. She received a bachelor's degree in music from the University of Utah, and studied at Radcliffe College. She taught music at the University of Utah before her marriage to her husband. Frances was a tireless worker. She served for many years on the general board of the Primary Organization for the Church of Jesus Christ of Latter-day Saints. In this capacity she was able to positively influence thousands of children's lives through her kindness, words of wisdom, and love and affection. As a board member, Frances chaired the fundraising committee to build the Primary Children's Hospital in Salt Lake City, now the finest children's hospital in the Intermountain West. The significance of her work in this area can never be measured. Thousands of children each year from across the United States are treated and helped at this Children's Hospital. I am sure that there are many mothers and fathers, as well as little children, that would thank Frances for her undying efforts on their behalf. In Washington, DC, Mrs. Bennett was a supportive and helpful partner to her husband during many years of public service. She served as president of the Congressional Club, a group of congressional wives. She wrote about many of her experiences in Washington, and with her family, in her autobiography, ``Glimpses of a Mormon Family.'' Mrs. Bennett's friends describe her as gracious, gentle, regal, and warm. When you met her, her goodness was immediately apparent. She treated people with great kindness and respect. She raised a wonderful family, and will be missed by all. Mr. President, Utah was fortunate to have Frances Marion Grant Bennett as a citizen. She was truly a fine woman, talented musician, wonderful wife and mother, and devoted American. I feel fortunate to have been able to associate with her and learn from her example.

Mr. HATCH

Mr. HATCH. Mr. President, I thank my colleague for being willing to yield me this time, because we were supposed to start on the flag amendment at 10 this morning. I do deeply regret that we are now on a filibuster against a constitutional amendment to prevent the desecration of the American flag. I think the American people should know that this is a filibuster. We have had a filibuster on virtually every bill this year. At the height of Republican irritation at Democratic control of the Senate in the past, I cannot remember any year on which there have been filibusters on virtually everything of substance in any given year. Selected filibusters, yes--and I am the first to say that should be done. I am the first to uphold the filibuster rule. But not on everything. To prevent us from even considering, or at least trying to prevent us from considering an amendment to protect the flag, which most Americans, at least 80 percent, favor, it seems to me is something I hope my colleagues on the other side will think through and change their ways, because this is not right. But I do appreciate my colleague allowing me this time to make a few comments about how important this amendment is. It comes down to this. Will the Senate of the United States confuse liberty with license? Or will the Senate of the United States allow the people of the United States to have the right to protect their beloved national symbol, the American flag? The Supreme Court, in 1989, in the first of two mistaken 5 to 4 decisions, stripped the American people of that right. This is a right the American people had for over 200 years. This is a right they had exercised in 48 States and in Congress. Seventy-three percent of my fellow Utahns favor a constitutional amendment to protect the flag. Forty-nine State legislatures, including the Utah Legislature, have called upon Congress to pass a flag protection amendment. Here are 49 petitions--here are the voices of people reflected in their State legislatures; 49 petitions for this amendment. Three-hundred and twelve members of the other body have already voted for this constitutional amendment. This includes nearly half of the members of the other side of the aisle, including their leader, Dick Gephardt--a wonderful display of bipartisanship over there, one of the few we have had in this whole last 2 years. So, it does come down to the Senate, no doubt about it. Many of the Nation's law professors and editorial boards oppose this amendment. An intemperate American Bar Association and the American Civil Liberties Union oppose the amendment. Regrettably, President Clinton opposes this amendment, and I am sure that costs us a few votes. They may be critical votes on this particular amendment. If this goes down, it will be primarily, perhaps, because the President is opposed to it. But the American people favor this amendment. We live in a time when standards have eroded. Our sensibilities are increasingly bombarded by coarse and graphic speech and by angry and vulgar discourse. We and our children and grandchildren can routinely watch television shows that contain material we never saw or heard on movie screens not so many years ago, let alone on TV. I noticed our colleagues, Senators Lieberman and Nunn, have expressed concerns about the erosion of standards in some aspects of daytime television. I need not dwell on what we and our children can watch at the movies these days. I need not dwell on the lyrics our children are listening to throughout our country, or that they can listen to. Drugs, crime, and pornography debase our society to an extent that no one would have predicted just two generations ago. The breakdown in the family, the divisions among our citizens, threaten our progress as one people bound together by common purposes and values. Civility and mutual respect--preconditions for the robust expression of diverse views in society--are in decline. Absolutes are ridiculed. Values are deemed relative. Nothing is sacred. There are no limits. Anything goes. Individual rights are cherished and constantly expanded, but responsibilities are shirked and scorned. We seek to instill in our children a pride in our country--a pride that we hope will serve as a basis for good citizenship and for devotion to improving our country and adhering to its best interests as they can honestly see those interests; a pride in country that takes them beyond the question, ``What's in it for me?'' We seek to instill a pride in country that may one day be called upon as a basis for painful sacrifice in the country's interests, maybe even the ultimate sacrifice, as it was in the case of my brother, in the Second World War. We hope our children will feel connected to the diverse people who are their fellow citizens--the people they will grow up to work with, cross paths with in daily life, and live among. We ask our school children to pledge allegiance to the flag. But, the Supreme Court now dictates that we must tell them that the same flag is unworthy of legal protection when it is treated in the most vile, disrespectful, or contemptuous manner. At the same time that we seek to foster pride in each rising generation, our country grows more and more diverse. Many of our people revel in their particular cultures and diverse national origins, and properly so. Others are alienated from their fellow citizens and from government altogether. We have no monarchy, no state religion, no elite class--hereditary or otherwise--representing the Nation and its unity. We have the flag. [[Page S 18040]] The American flag is the one symbol that unites a very diverse people in a way nothing else can, in peace or war. Despite our differences of party, politics, philosophy, religion, ethnic background, economic status, social status, or geographic region, the American flag forms a unique, common bond among us. Failure to protect the flag inevitably loosens this bond, no matter how much some may claim to the contrary. In my opinion, the defenders of this newly discovered, so-called right to desecrate the American flag do confuse liberty with license. The issue really does boil down to this: isn't it ridiculous that the American people are unable to protect their flag, if they wish to do so? This one, unique symbol of our country? It might come as a shock to many, but the law does not have to be totally devoid of common sense. Of course, the amendment and implementing statutes must be carefully crafted and the lawyers consulted on this. But the underlying issue is not nearly as complicated as the legal mumbo--jumbo of the lawyers and elitists make it out to be. Perhaps Paul Greenberg, editorial page editor of the Arkansas Democrat Gazette, summarized it best in a July 6, 1995 column: ``But didn't our intelligentsia explain to us yokels again and again that burning the flag of the United States isn't an action, but speech, and therefore a constitutionally protected right? That's what the Supreme Court decided, too, if only in one of its confused and confusing 5-to-4 splits. But the people don't seem to have caught on. They still insist that burning the flag is burning the flag, not making a speech. Stubborn lot, the people. Powerful thing, public opinion . . . ``It isn't the idea of desecrating the flag that the American people propose to ban. Any street-corner orator who takes a notion to should be able to stand on a soapbox and badmouth the American flag all day long--and apple pie and motherhood, too, if that's the way the speaker feels. It's a free country. ``It's actually burning Old Glory, it's defacing the Stars and Stripes, it's the physical desecration of the flag of the United States that oughta be against the law. And the people of the United States just can't seem to be talked out of that notion--or orated out of it, or lectured out of it, or condescended and patronized out of it. ``Maybe it's because the people can't shut their eyes to homely truths as easily as our Advanced Thinkers. How many legs does a dog have, Mr. Lincoln once asked, if you call its tail a leg? And he answered: still four. Calling a tail a leg doesn't make it one. Not even a symbolic leg. The people have this stubborn notion that calling something a constitutional right doesn't make it one, despite the best our theorists and pettifoggers can do. ``The people keep being told that their flag is just a symbol. ``Just a symbol. ``We live by symbols, said a Justice of the U.S. Supreme Court (Felix Frankfurter) . . . And if a nation lives by its symbols, it also dies with them. ``To turn aside when the American flag is defaced, with all that the flag means--yes, all that it symbolizes--is to ask too much of Americans. There are symbols and there are Symbols. There are some so rooted in history and custom, and in the heroic imagination of a nation, that they transcend the merely symbolic; they become presences. . . . I think that is a pretty profound editorial. The amendment before us does not itself protect the flag. It empowers Congress and the States to do so. The amendment reads: ``The Congress and the States shall have power to prohibit the physical desecration of the flag of the United States.'' That is a very simple statement, as constitutional amendments should be stated. Now I wish we did not have to amend the Constitution to achieve our purpose. It should not be necessary. I believe that the Constitution permits Congress and the States to enact flag protection laws. But as our colleague Senator Feinstein and others have well noted, the Supreme Court has given us no choice. Twice it has struck down statutes protecting the flag--in Texas versus Johnson in 1989, a Texas statute; and in U.S. versus Eichman in 1990, a Federal statute that we enacted in response to Johnson. This amendment would overturn both decisions. I remember when we debated that on the floor. I said the court would strike that statute down which, of course, it has. Now let me be clear what this debate is not about. This is not about who loves the flag more. President Clinton and other present opponents of legal protection of the flag, and opponents of this particular amendment, love the flag no less than supporters of the amendment. Patriots can disagree about this amendment. This is also not about who believes in the first amendment more. Supporters of this amendment, no less than its opponents, believe in protecting the right of free speech. In my view, there is no clash between protecting the American flag and preserving freedom of speech. And, during all the years that flag protection statutes were on the books, freedom of speech in this country actually expanded under the law. The amendment does not prescribe what shall be orthodox in politics, nationalism, or any matter of opinion. This amendment does not compel anyone, by word or act, to salute, honor, or respect the flag. So what, then, is this debate really about? This debate concerns our judgment about what values are truly at stake. It is about our sense of national community. It is about whether it is important enough to ensure that the one unique symbol of all of us, under which many have fought and died, may be protected if the people feel strongly enough to do so. This debate, then, is about letting the American people, so many of whom do respect, revere, and honor our flag, decide whether this indisputably unique symbol of our country is worthy of legal protection from those who would physically desecrate it. Right now, the Supreme Court mistakenly has mistakenly stripped the people of their 200-year- old democratic right to make this decision. The flag is the quickest and most intense way for those with an urgent cause to seek identification with their fellow citizens and American ideals and principles. Indeed, it is not uncommon for causes seeking popular support to rely on the flag as a silent but extremely powerful part of their appeal to fellow Americans. In a wonderful book, ``Star Spangled Banner, Our Nation and its Flag,'' by Margaret Sedeen, published by the National Geographic Society, one can see vivid reminders of this. On page 181, women suffragettes are shown in an open air car with placards proclaiming their cause and waving several American flags. Two pages later is another picture, and I will read its caption: Holding the flag high as a banner for his cause, a marcher makes his way along the road from Selma to Montgomery, AL, in the spring of 1965, protesting continued efforts to deny most southern blacks their rights to register and vote. Within months of the march, Congress approved the Voting Rights Act of 1965. Now, parenthetically, I should note that in between these two pages is a picture which will make the blood boil of every Member of this body. I will read that inscription: On April 5, 1976, a white high school student, 1 of 200 antibusing demonstrators in Boston that day, used the flag as a lance to lunge at a black attorney who walked onto the scene. This is a picture of the man. Mr. President, this is as vile a physical abuse of the flag as any flag burning you have ever seen. It is also a reminder to us that any amendment we adopt must be worded so as to permit legislative bodies to address the variety of disrespectful, physical mistreatments of the flag that can occur. It is not possible to express fully all of the reasons the flag deserves such protection. As then Justice Rehnquist wrote in 1974: ``The significance of the flag, and the deep emotional feelings it arouses in a large part of our citizenry, cannot be fully expressed in the two dimensions of a lawyer's brief or of a judicial opinion.'' [Smith v. Goguen, 415 U.S. 566 at 602 (1974)(Rehnquist, J., dissenting).] The notion that our law denies the American people the ability to protect their flag from physical desecration defies common sense. This amendment empowers Congress and the States to protect only the American flag--and only from acts of physical desecration. This Cause Originates with the People The current movement for this amendment originates with the American people. It is right and proper that their elected representatives respond affirmatively. I respect those who have a different view. But I also think that supporters of this amendment, who are Democrats and Republicans alike, deserve the same presumption of good faith in our motives. [[Page S 18041]] So let me note at the outset that this has always been a bipartisan effort. On June 28, as mentioned earlier, nearly half of the Democrats in the House, including their leader, Richard Gephardt, voted for the amendment. In the Senate, the lead cosponsor is Senator Heflin. The Democratic whip, Senator Ford, is a cosponsor, as are Senators Feinstein, Baucus, Rockefeller, Johnston, Breaux, Hollings, Exon, Reid, and Nunn. I am troubled, therefore, that some opponents of the amendment would accuse its congressional sponsors of trying to score political points by pursuing ratification of this amendment. So why are we here today? A grassroots coalition, the Citizens Flag Alliance, led by the American Legion, has been working for some time in support of a constitutional amendment regarding flag desecration. The Citizens Flag Alliance consists of over 100 organizations, ranging from the Knights of Columbus; Grand Lodge, Fraternal Order of Police; and the National Grange to the Congressional Medal of Honor Society of the USA and the African-American Women's Clergy Association. These organizations represent millions of Americans. Over 200,000 individuals also belong to the Citizens Flag Alliance. The American Legion, and then the Citizens Flag Alliance as well, worked to obtain support for the amendment. Citizens organizations exist in every State. The Veterans of Foreign Wars also supports this amendment. The Citizens Flag Alliance approached Senator Heflin and me last year, well before the November elections, and asked us to lead a bipartisan effort in the Senate. They told us they had reasonable hopes that President Clinton would support this amendment. Senator Heflin and I did not initiate this current effort. We would not be here now if the Citizens Flag Alliance had not initiated it. A similar bipartisan approach was made in the House of Representatives. So why are we here today? We are here for the reasons expressed by Rose Lee, a Gold Star Wife and past president of the Gold Star Wives of America. Her husband died on active duty 23 years ago and she brought the flag that draped her husband's coffin to the June 6 hearing on this amendment. She testified, ``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.'' Did she and the other Gold Star Wives who accompanied her to the hearing show up to play politics? We are here for the reasons expressed by Joseph Pinon, assistant city manager of Miami Beach, FL, who fled Castro's Cuba, fought as a marine in Vietnam, and whose Marine unit refused to leave the flag behind at hill 695 when that unit had to withdraw under enemy pressure. Did he testify in order to play politics? We are here for reasons which reside in the hearts and minds of the American people, reasons which are not easy to put into words. The flag itself represents no political party or ideology. Make no mistake: the American people resurrected this amendment. They will keep it alive until it is ratified. There is more wisdom, judgment, understanding, and common sense among the American people on this matter than on our Nation's law faculties, editorial boards, and in the Clinton administration. Let me cite some of that common sense. In the 1989 Judiciary Committee hearings, R. Jack Powell, executive director of the Paralyzed Veterans of America, said it as well as anyone: ``The members of Paralyzed Veterans of America, all of whom have incurred catastrophic spinal cord injury or dysfunction, have shared the ultimate experience of citizenship under the flag: serving in defense of our Nation. The flag, for us, embodies that service and that sacrifice as a symbol of all the freedoms we cherish, including the First Amendment right of free speech and expression. Curiously, the Supreme Court in rendering its decision [in Texas versus Johnson] could not clearly ascertain how to determine whether the flag was a ``symbol'' that was ``sufficiently special to warrant . . . unique status.'' In our opinion and from our experience, there is no question as to the unique status and singular position the flag holds as the symbol of freedom, our Constitution and our Nation. As such it must be defended and provided special protection under the law. * * * * * I am concerned that there is some impression, at least in the media and by some others that are around, that the idea of supporting the flag is some idea just of right-wing conservatives, and I have heard some Senators say, those veteran organizations, and that kind of thing. In fact, the flag is the symbol of a constitution that allows Mr. Johnson to express his opinion. So, to destroy that symbol is again a step to destroy the idea that there is one nation on earth that allows their people to express their opinions, whether they happen to be socialist opinions or neo-Nazi opinions, or democratic opinions or republican opinions. Now listen carefully to these further words from Mr. Powell: Certainly, the idea of society is the banding together of individuals for the mutual protection of each individual. That includes, also, an idea that we have somehow lost in this country, and that is the reciprocal, willing giving up of unlimited individual freedom so that society can be cohesive and can work. It would seem that those who want most to talk about freedom ought to recognize the right of a society to say that there is a symbol, one symbol, which in standing for this great freedom for everyone of different opinions, different persuasions, different religions, and different backgrounds, society puts beyond the pale to trample with. [Testimony of R. Jack Powell, Sept. 13, 1989, at 432-437]. There is more wisdom and judgment in these few paragraphs than my colleagues will find in page after page of the Clinton administration's testimony, the arcane testimony of law professors opposed to the amendment, or the thoughtless and intemperate outbursts of the American Bar Association. The July 24, 1995, Washington Post published a letter from Max G. Bernhardt, of Silver Spring, MD. He said: I'm certainly a liberal, although I've always made up my own mind on things and have never felt an obligation to accept anyone else's definition of what was and what was not the proper liberal position on any given issue. I can't for the life of me figure out why the proposed amendment to the Constitution outlawing desecration of the United States flag should evoke the furious opposition that it has. There seem to be three principal arguments against it: First, it isn't needed because this isn't what people are doing anymore; second, it will have a chilling effect on the exercise of free expression; third, it will start us down the proverbial slippery slope to various other infringements on, and restrictions of, free speech and expression. If we don't need it, then it won't matter one way or another if it's enacted, and no one has to worry about it being there as a part of the Constitution. I see no reason why desecration of our flag needs to be tolerated in the name of free speech. I cannot see how outlawing such acts adversely affects free expression--other than flag desecration itself--in any manner, shape, or form. Given the nature of the process required to enact an amendment to the Constitution, I see no reason to fear that enactment of this amendment will lead to the enactment of other constitutional amendments that might be adverse to free expression or other rights. Far from destruction of the Bill of Rights, as depicted by Herblock in the July 2 Post, the only thing this amendment does is to outlaw desecration of the flag, which only by the most expansive interpretation of the First Amendment could have been established as legally permissible in the first place. It in no way affects anything else and should be enacted forthwith. This individual displayed more common sense and understanding on this matter than one will find in editorials, cartoons, and pundits' offerings in the Washington Post, and other illustrious journalistic pieces and publications. Response to Criticisms Let me give a response to some of the criticisms. The committee report fully addresses the legal and other arguments against the amendment. And I urge my colleagues to review it. I am prepared to address some of them later in the debate if I had to. Let me just make a few comments now. In my view, this amendment, granting Congress and the States power to prohibit physical desecration of the flag, does not amend the first amendment. I believe the flag protection amendment overturns two Supreme Court decisions which have misconstrued the first amendment. The first amendment's guarantee of freedom of speech has never been deemed absolute. Libel is not protected under the first amendment. Obscenity is not protected under the first amendment. Fighting words which provoke violence or breaches of the peace are not protected under the first amendment. A person cannot blare out his or her political views at 2 o'clock in the morning in a residential neighborhood and claim first amendment protection. [[Page S 18042]] The view that the first amendment does not disable Congress and the States from prohibiting physical desecration of the flag has been shared across a wide spectrum. Chief Justice Earl Warren 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 (dissenting)]. Justice Hugo Black--generally regarded as a first amendment absolutist--stated, ``It passes my belief that anything in the Federal Constitution bars a state from making the deliberate burning of the American flag an offense.'' [Id. at 610 (dissenting)]. Justice Abe Fortas wrote, ``[T]he States and the Federal government have the power to protect the flag from acts of desecration committed in public . . .'' [Id. at 615 (dissenting)]. According to Assistant Attorney General Dellinger, President Clinton agrees with Justice Black, but still opposes any amendment. It is not the first amendment which protects physical desecration of the American flag. The Supreme Court misinterpreted the text of the first amendment, ignored 200 years of history, and superimposed its own evolving theories of the first amendment in 1989 in Texas versus Johnson. That just 20 years earlier civil libertarians such as Earl Warren and Abe Fortas, and a first amendment absolutist such as Hugo Black, took it as elementary that flag desecration laws are constitutional is a measure of how far the Supreme Court has moved in this area. We have had flag desecration statutes for many decades--yet the avenues available for dissent have gotten larger, not smaller, over time. And I would agree with that. Indeed, I would point out that during the time these laws were first enacted in the 19th century, freedom of speech in general has been enlarged: the first amendment has been made applicable to the states via the 14th Amendment's due process clause [Fiske v. Kansas, 274 U.S. 380 (1927)]; commercial speech has been given protection [Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976)]; the public forum doctrine appeared in 1939 [Hague v. CIO, 370 U.S. 496 (1939)]; indeed, private shopping centers must make their property available for dissemination of literature [Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980)]; the overbreadth doctrine developed in 1940 [Thornhill v. Alabama, 310 U.S. 88 (1940)]; and the void for vagueness doctrine developed in 1972 [Papachristou v. Jacksonville, 405 U.S. 156 (1972)]. Yet, to listen to some of the critics of this amendment, one would believe ratification of the flag protection amendment would herald a new Dark Age. Need for the Amendment Let me also address the underlying need for the amendment. 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.'' With all due respect, I find that comment clearly 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 the flag's 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]. Pro. Richard Parker of Harvard Law School testified: ``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.'' I think Professor Parker's comments are pretty apropos here. Indeed, disrespectful physical treatment of the flag need not involve protest. Just a short time ago, I saw a newsclip about a motorist at a gas station using an American flag to wipe the car's dipstick. A veteran called it to the police's attention but, of course, the individual cannot be prosecuted today. He can keep using it as he has, or perhaps he will next use it to wash his car. Moreover, 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. Further, whether the 45-plus flags which were publicly reported desecrated between 1990 and 1994, and those which have occurred 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 these desecrations. 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. One might also ask, even if espionage occurs rarely, should we have no statutes outlawing it? Arrests for treason are rare--but the crime is set out right there in the Constitution and in our statutes. No Slippery Slope Mr. President, there is absolutely no slippery slope here. The amendment is limited to authorizing States and the Federal Government to prohibit physical desecration of only the American flag. It does not suppress viewpoints, nor does it regulate any means of expression aside from physical desecration of the flag. It serves as no precedent for any other legislation or constitutional amendment on any other subject or mode of conduct, precisely because the flag is unique. Some critics of the amendment ask, is our flag so fragile as to require legal protection? I have tried to explain why our national symbol should be legally protected. The better question is this: is our ability to express views so fragile in this country as to be unable to withstand the withdrawal of the flag from physical desecration? Of course not. Ideas have many avenues of expression, including the use of marches, rallies, picketing, leaflets, placards, bullhorns, and so very much more. Even one of the opponents of the amendment testifying at the subcommittee hearing, Bruce Fein, the conservative analyst, described the amendment as ``a submicroscopic encroachment on free expression . . .'' in response to written questions. A submicroscopic approach. Pro. Cass M. Sunstein of the University of Chicago Law School, a vigorous opponent of the amendment, conceded: There are reasons to think that as the basic symbol of nationhood the flag is sui generis and legitimately stands alone. Moreover, constitutional protection of the flag would prohibit only one, relatively unusual form of protest. Multiple other forms would remain available. The administration's witness agreed with these remarks, in response to my written questions. Indeed, I think Professor Sunstein understated his first point--there is no doubt the flag stands alone as a national symbol. Even if, contrary to my view, one agreed that the Johnson and Eichman cases were correctly decided under prior precedents, one could still support this amendment--if one believes protection of the flag from physical desecration is an important enough value. Content-Neutral Amendment is Wrong A few critics of the pending amendment believe that a constitutional amendment either must make illegal [[Page S 18043]] all physical impairments of the integrity of the flag, such as by burning or mutilating, or that no physical desecration of the flag should be illegal. This is the approach of my friend from Delaware, who will offer such an amendment. This all-or-nothing approach to our fundamental governing document flies in the face of nearly a century of legislative protection of the flag. It is also wholly impractical. In order to be truly content neutral, such an amendment must have no exceptions, even for the respectful disposal of a worn or soiled flag. Once such an exception is allowed, the veneer of content neutrality is stripped away. The Supreme Court in Johnson acknowledged this. A content-neutral amendment would forbid an American combat veteran from taking an American flag flown in battle and having printed on it the name of his unit and location of specific battles, in honor of his unit, the service his fellow soldiers, and the memory of the lost. Then Assistant Attorney General for Legal Counsel William P. Barr testified before the Senate Judiciary Committee August 1, 1989 and brought a certain American flag with him. He said: Now let me give you an example of . . . the kind of result that we get under the [content-neutral approach]. This is the actual flag carried in San Juan Hill. It was carried by the lead unit, the 13th Regiment U.S. Infantry, and they proudly emblazon their name right across the flag . . . 1,078 Americans died following this flag up San Juan Hill . . . Under [a content-neutral approach], you can't have regiments put their name on the flag, that's defacement . . . [Testimony, Assistant Attorney General William P. Barr, August 1, 1989, at 68]. We do wish to empower Congress and the States to prohibit the contemptuous or disrespectful physical treatment of the flag. We do not wish to compel Congress and the States to penalize respectful treatment of the flag. Such a so-called content-neutral amendment would place a straitjacket on the American people and deny them the right to protect the flag in the manner they have traditionally protected it. A constitutional amendment which, in our fundamental law, would treat the placing of the name of a military unit on a flag as the equivalent of placing the words ``Down with the fascist Federal Government'' or racist remarks on the flag is not what the popular movement for protecting the flag is all about. I respectfully submit that such an approach ignores distinctions well understood by tens of millions of Americans. Moreover, never in the 204 years of the first amendment has the free speech clause been construed as totally content neutral. For example, speech criticizing official conduct of a public official may be legally penalized if it is known to be false, or made in utter, reckless disregard for the truth, and damages the official's reputation. And this is actual speech, not action or conduct as in the case of desecrating the flag. Moreover, one can express views at city hall, but if one does so obscenely, one can be arrested. This is not content neutrality. Indeed, I think it is fair to liken flag desecration to obscenity. Of course, any law enacted pursuant to the pending amendment cannot bar physical desecration of the flag by one political party and permit it by the other, or ban its physical desecration by those in opposition to a government policy, but not by those who support the policy. As with other parts of the Constitution, the amendment will be interpreted in harmony with other provisions of the Constitution. Thus, a State cannot favor a flag desecrator who burns the flag protesting the Government's failure to topple Saddam Hussein over the flag desecrator complaining about American participation in the gulf war in the first place. The first amendment's prohibition on viewpoint discrimination will apply to statutes enacted under the pending amendment. Ridiculous, Overblown Arguments One more thing about this debate, Mr. President. I have rarely heard more overblown, ridiculous arguments made against a measure as I have heard regarding this amendment, which simply restores a power to the people they had held for 200 years, and exercised for about 100 years. There are colleagues of mine on the Judiciary Committee who actually make the absurd suggestion that this amendment blurs the distinction between a free country and a tyranny. Tell that to the Gold Star Wives. Tell that to the Veterans of Foreign Wars. Forget about the fact that during the nearly 100 years that 48 States and Congress were adopting flag desecration statutes, we seemed, somehow, to avoid the descent into tyranny. Ironically, freedom of speech actually expanded in this country as I said. These colleagues actually make the ridiculous, nonsensical, thinly veiled suggestions that legal protection of the American flag is somehow similar to the Chinese Communist dictatorship's execution of dissidents in 1989, and that legal protection of the flag somehow makes us more like a Communist dictatorship. If you do not believe me, Mr. President, read their views in the committee report on page 74 and at footnote 11. Listening to some of these critics, one would think enactment of the pending amendment would curtail the ability of dissenters to be heard. One shudders to think about their lackadaisical attitude toward repression in America during all the years before the Supreme Court, in 1989, saved America from its decline and fall into totalitarianism. After all, notwithstanding the solemn fears they express, I am unaware that those colleagues in the Senate lifted one finger to plug this gaping hole in our freedom by trying to repeal the federal flag protection statute before 1989. Some of my colleagues actually raise the utterly groundless, inherently unbelievable claim that the pending amendment could authorize a statute prohibiting the flying of the flag over a brothel. You do not believe me, Mr. President? You'll find that little gem on page 77 of the committee report. The things some of our colleagues worry about. It is a good thing my colleagues expressing these views were not Members of the first Congress. Mr. President, given their concern about flags over brothels, I can only imagine the angst my colleagues would have expressed about the scope of the proposed fourth amendment's protections against unreasonable searches and seizures. I wonder how the phrase due process of law in the fifth amendment would have fared. The point is this, as we explain in the committee report: there is no cause to fear the terms of this amendment. I urge my colleagues not to apply a higher standard to an amendment protecting the flag than the Framers themselves applied to the Bill of Rights. The words of this amendment are at least as precise, if not more so, than many terms in the Bill of Rights. And keep in mind what my colleague Senator Heflin has repeatedly said: This amendment does not prohibit any conduct. There will be implementing legislation. And such legislation will have to be sufficiently specific to withstand due process scrutiny. This amendment just says that the States and the Congress can determine that people cannot desecrate our flag. Let me just end this by saying that some have wondered why we are putting forth this enormous effort to enact this amendment to protect the flag, a so-called mere symbol. The answer is simple. The nearly mystical connection between the American people and Old Glory really is that strong. That bond between our constituents and the flag is the bond on which our entire effort rests, the bond from which it draws its strength. That bond will keep this movement alive until a flag protection amendment is ratified, no mistake about it. We are fighting for the very values that the vast majority of the American people fear we are losing in this country. This is an important amendment, as I think all constitutional amendments must and should be. It is an amendment that has been simple on its face. This is an amendment that we believe at least 66 Senators ought to vote for. In fact, I believe all 99 of us currently sitting in this body ought to vote for it. Having said that, I am somewhat surprised that, needing only 34 votes to defeat this amendment, there would be those on the other side who would filibuster even the bringing up of this amendment on the floor. In fact, I would be surprised if they would filibuster the amendment itself once we defeat them on the motion to proceed. I cannot imagine why anybody, needing only 34 votes to defeat this, would [[Page S 18044]] filibuster where you need 41 votes in order to stop the debate. I really hope, with all my heart, that my friends on the other side will realize how important this is to the people of this country and will withdraw their filibuster and their efforts to stop the motion to proceed and will not filibuster the amendment itself, and will allow it to go to a constitutional vote, where all they have to get are 34 votes to defeat it. We have to get 66 votes on a constitutional amendment, and that is as it should be. Constitutional amendments should be very difficult to enact. Our basic document is not a piece of legislation that can be amended at will. It requires a very long, arduous, difficult process. I am hopeful that we will have 66 votes on this amendment, or more; but if we do not, everybody here is going to be put on notice right here and now that this will be brought back until we do. Mr. President, I thank my colleague for allowing me to make this lengthy but important statement on this issue. I yield the floor back to him. Mr. BINGAMAN addressed the Chair.

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

Mr. HATCH. Mr. President, I thank my colleague. It was very gracious of him to do that, because I am concerned whether we are going to get to this amendment. Let me, just for a moment, suggest the absence a quorum with the understanding I will be recognized as soon as we come out of the quorum call.

Mr. HATCH

Mr. HATCH. Mr. President, I congratulate my colleague from South Carolina as well. There has never been anybody in the history of this body who has meant more to me personally than the distinguished Senator from South Carolina. Mr. President, I ask unanimous consent we go to the distinguished Senator from South Carolina and then the distinguished Senator from New Mexico for their remarks.

Mr. HATCH

Mr. HATCH. I yield to the Senator.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to speak in favor of the conference report to H.R. 1058, the Private Securities Litigation Reform Act of 1995. I was an original cosponsor of the Senate bill, S. 240, and am a strong supporter of the conference report. This legislation will protect investors and consumers, while remedying abuses that have plagued securities issuers and companies-- particularly in cases in which attorneys have used class action lawsuits to force settlements on parties that have done no wrong. It is my hope that President Clinton will defend the interests of the American people by signing this legislation, rather than favor the trial lawyers who would benefit from his veto. In my view, this conference report represents a significant step towards addressing some of the egregious litigation abuses seen in the legal system today. On a related front, the Senate's product liability bill is going to conference, and it is my hope that in the future Congress will pass more broad-ranging litigation reforms that will affect the entire civil justice system. I would like to extend my gratitude to Senator D'Amato, Senator Dodd, and Senator Domenici for their hard work in bringing this significant and well-drafted legislation to fruition. This bill has been perfected over several congresses and is the result of a strong bipartisan effort. Abusive securities litigation lawsuits have imposed a high and harmful tax on American businesses. Because of the fear of being sued-- and the high costs associated with securities lawsuits--many companies have declined to go public. Other companies have declined to make innovations or disseminate certain information. The unfortunate irony is that, while securities litigation laws were designed to safeguard investors, in reality the current system ends up hurting investors. The current system hurts investors who could have invested successfully in those companies that decided not to go public due to fears of litigation. It also harms investors who could have earned greater profits on their shares had the companies they invested in been more profitable-- for example, if those companies had been able to invest more money in research and development rather than wasting it on securities litigation costs. Not only have investors gotten hurt, but certain lawyers have raked in exorbitant fees. Companies have all too often been reluctant to disclose information for fear that doing so will provoke a lawsuit. That goes completely against the grain of the securities laws, which are designed to encourage openness and full information in the securities markets. The conference report addresses some of the worst abuses that have been seen in securities litigation. At the same time, the Report preserves and reinforces the core values of the American stock market-- integrity, openness, and the free exchange of information. The conference report does so through a number of specific measures. The legislation provides that discovery is stayed whenever a motion to dismiss is pending in a securities action. Discovery costs have been estimated to account for 80 percent of the costs of defending a lawsuit in a securities action. The burden of this time-consuming and expensive discovery process will accordingly be significantly reduced. That should remove some of the skewed incentives that have frequently forced companies to settle securities lawsuits even when they have done no wrong. The conference report specifically addresses abuses involving the use of so-called professional plaintiffs as lead plaintiffs in securities action lawsuits. Many plaintiffs have been motivated to file suit to receive a bounty payment or bonus. There has also all too often been a race to the courthouse by plaintiffs' lawyers seeking to be the first to file a complaint in a securities action. Lawyers representing a class are often appointed by the court on a first come, first serve basis: the first lawsuit filed determines who will serve as lead plaintiff and who will be the lead attorney. In many cases, the professional plaintiff has not even reviewed the complaint filed against the defendant. This legislation will require the lead plaintiff to file a sworn certified statement along with the complaint, stating: First that the plaintiff has reviewed and authorized the filing of the complaint; second that the plaintiff did not purchase the security involved at the request of an attorney or to be a party to the securities action; and third that the plaintiff is willing to serve as the lead plaintiff for the class. A lead plaintiff may not serve as a lead plaintiff in a securities action more than five times in 3 years. The legislation also limits the class representative's recovery to the lead plaintiff's pro rata share of the settlement or final judgment. These provisions limit some of the skewed incentives that have led to the rise of professional plaintiffs. Once a securities litigation class action lawsuit has been filed, the court will then determine separately which plaintiff is the most adequate plaintiff. Any party who has received notice of the suit may petition the court to serve as lead plaintiff within 60 days of when the suit was filed. In determining which plaintiff is the most adequate plaintiff, the court determines which party has the greatest financial interest in the lawsuit. The most adequate plaintiff selects the lead attorney and negotiates attorneys' fees. That plaintiff also weighs in on settlement decisions and other significant decisions pertaining to the lawsuit. The legislation also provides improved settlement notice to class members. Class members will have to be provided notice of a proposed settlement and specified information. That information would include, if the parties agree on a figure, the average amount of damages per share that would be recoverable or, if the parties do not agree an a particular amount, a statement from each party as to why there is disagreement. Notice must also include an explanation of the attorneys' fees and costs involved; the name, telephone number, and address of the class lawyer; and a brief statement explaining the reasons for the proposed settlement. Those provisions will improve the information provided to individual shareholders and increase the involvement of individual class members in litigation decisions. The conference report also limits attorneys' fees to a reasonable percentage of the amount of recovery awarded to the class. On a separate note, this legislation creates a modified system of proportionate liability, under which each co-defendant is generally responsible for only the share of damages that that defendant caused to the plaintiff. To balance plaintiffs' needs, however, there is a provision to protect plaintiffs from insolvent codefendants. Where defendants have committed a knowing securities violation, those defendants will be jointly and severally liable for damages. Also, in the case of an insolvent codefendant, a proportionately liable codefendant would provide additional damages to up to 150 percent of its share of the damages. There is even an additional, special protection for small investors: all defendants will be jointly and severally liable for uncollectible shares of insolvent codefendants for plaintiffs whose damages are more than 10 percent of their net worth, and whose net worth is less than $200,000. This legislation is proconsumer and protects small investors. In a separate measure, the legislation adopts the second circuit pleading standard so that, in a securities action, plaintiffs must state facts with particularity, and those facts must give rise to a strong inference of scienter or intent. This should help weed out at an early stage lawsuits filed against innocent defendants. The bill also includes a cocalled safe harbor provision to protect forward-looking, predictive statements. It structures damages so that they will reflect real losses rather than fortuitous market fluctuations. Finally, the proposed legislation would establish new civil penalties against independent public accountants who fail to inform corporate officers of any illegal acts they discover while performing audits. That further protects investors. In short, this legislation should protect individuals and free up resources that have imposed substantial and needless litigation costs on American businesses in Utah and all across this country. [[Page S 17967]] As I noted, I would like to see Congress take a more comprehensive look at litigation abuses across the civil justice system. This legislation is certainly a significant step in that direction. I look forward to working with my colleagues to achieve broader reforms.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to speak in support of H.R. 1833, the Partial-Birth Abortion Ban Act of 1995. I understand that many people on both sides of this issue have very strongly held beliefs. I respect those whose views differ from my own. And, I condemn the use of violence or any other illegal method to express any point of view on this issue. This bill, however, presents a very narrow issue: whether one rogue abortion procedure that has probably been performed only by a handful of abortion doctors in this country, that is never medically necessary, that is not the safest medical procedure available under any circumstances, and that is morally reprehensible, should be banned. This bill does not address whether all abortions after a certain week of pregnancy should be banned, or whether late-term abortions should only be permitted in certain circumstances. It bans one particular abortion procedure. [[Page S 17882]] I chaired the Judiciary Committee hearing on this bill that was held on November 17. After hearing the testimony presented there, as well as seeing some of the submitted material, I must say that I find it difficult to comprehend how any reasonable person could examine the evidence and continue to defend the partial-birth abortion procedure. That procedure involves the partial delivery, in the late second or third trimester of pregnancy, of an intact fetus into the birth canal. The fetus is delivered from its feet through its shoulders, so that only its head remains in the uterus. Then, either scissors or another instrument is used to poke a hole in the base of the skull. This is a living baby at this point, in a late trimester of living. Once they poke that hole in the base of the skull, at that point, a suction catheter is inserted to suck out the brains. This bill would simply ban that procedure. The bill was first brought up on the Senate floor in early November. On November 8, the Senate voted to commit the bill to the Judiciary Committee for a hearing and a report of the bill within 19 days, which included a holiday recess. We held a comprehensive, 6\1/2\-hour hearing on the bill on November 17. To facilitate consideration on the floor, I have directed that a hearing record be printed on an expedited basis. In addition, so that all Senators can have immediate access to the testimony and other evidence adduced at the hearing, last week I had the committee distribute to each Senator a photocopied set of the entire hearing record, including inserts and written submissions. The committee heard testimony from a total of 12 witnesses presenting a variety of perspectives on the bill. I wanted to ensure that both sides of this debate had a full opportunity to present their arguments on this issue, and I think that the hearing bore that out. Brenda Shafer, a registered nurse who worked in Dr. Martin Haskell's Ohio abortion clinic for 3 days as a temporary nurse in September 1993, testified as to her personal experience in observing Dr. Haskell perform the procedure that would be banned by this bill. Dr. Haskell is one of only two--maybe four doctors who have acknowledged performing the procedure--only two have acknowledged it, but there may be four of them who do this procedure. The committee also heard testimony from four ob-gyn doctors--two in favor of the bill and two against, from an anesthesiologist, from an ethicist, and from three women who had personal experiences either with having a late-term abortion or with declining to have a late-term abortion. Finally, the committee also heard from two law professors who discussed constitutional and other legal issues raised by the bill. The hearing was significant in that it permitted the issues raised by this bill to be fully aired. I think that the most important contribution of the hearing to this debate is that the hearing record puts to rest a number of inaccurate statements that have been made by opponents of the bill and that have unfortunately been widely covered in the press. Because the Judiciary Committee hearing brought out many of the facts on this issue, I would like to go through the most important of those for my colleagues to clear up what I think have been some of the major misrepresentations--and simply points of confusion--on this bill. Misrepresentation no. 1 The first and foremost inaccuracy that we must correct once and for all concerns the effects of anesthesia on the fetus of a pregnant woman. I must say that I am personally shocked at the irresponsibility that led some opponents of this bill to spread the myth that anesthesia given to the mother during a partial-birth abortion is what kills the fetus. Opponents of this measure presumably wanted to make this procedure appear less barbaric and make it more palatable. In doing so, however, they have not only misrepresented the procedure--which is bad enough-- but they have spread potentially life-threatening misinformation that could prove catastrophic to women's health. By claiming that anesthesia kills the fetus, opponents have spread misinformation that could deter pregnant women who might desperately need surgery from undergoing surgery for fear that the anesthesia could kill or brain-damage their unborn children. Let me illustrate how widespread this misinformation has become: In a June 23, 1995, submission to the House Judiciary Constitution Subcommittee, the late Dr. James McMahon, the other of the two doctors who has admitted performing the procedure, wrote that anesthesia given to the mother during the procedure caused fetal demise. Syndicated columnist Ellen Goodman wrote that, when statements of supporters of the bill are reviewed, ``You wouldn't even know that anesthesia ends the life of such a fetus before it comes down the birth canal.'' Let me note also that, of course, if the fetus was dead before being brought down the birth canal, then this bill by definition would not cover the procedure performed to abort that fetus. The bill covers only procedures in which a living fetus is partially delivered. All but the head of this living fetus is outside, and then they puncture the back of the skull and suck out the brain so that the skull collapses and the baby can then be pulled out. There is no doubt in my mind that the reason the head is in is so that they will not be accused of infanticide. An editorial in USA Today on November 3, 1995, also stated, ``The fetus dies from an overdose of anesthesia given to its mother.'' In a self-described fact sheet circulated to Members of the House, Dr. Mary Campbell--the medical director of Planned Parenthood who testified at the Judiciary Committee hearing--wrote: The fetus dies of an overdose of anesthesia given to the mother intravenously. A dose is calculated for the mother's weight which is 50 to 100 times the weight of the fetus. The mother gets the anesthesia for each insertion of the dilators, twice a day. This induces brain death in a fetus in a matter of minutes. Fetal demise therefore occurs at the beginning of the procedure while the fetus is still in the womb. When that statement was referenced to the medical panel at the Judiciary Committee hearing by Senator Abraham, the president of the American Society of Anesthesiologists, Dr. Norig Ellison, flatly responded, ``There is absolutely no basis in scientific fact for that statement.'' The American Society of Anesthesiologists was invited to testify at our hearing precisely to clear up this obvious misrepresentation. They sought the opportunity to set the record straight. What was terribly disturbing about this distortion was that it could endanger women's health and women's lives. The American Society of Anesthesiologists has made clear that they do not take a position on this legislation, but that they came forward out of concern for this harmful misinformation. The spreading of this misinformation strikes me as a very sad commentary on the lengths that those who support abortion on demand, for any reason, at virtually any time during pregnancy, and apparently regardless of the method, will do to defend each and any procedure, and certainly this procedure. The sacrifice of intellectual honesty is very disheartening. As Dr. Ellison testified, he was Deeply concerned . . . that the widespread publicity given to Dr. McMahon's testimony may cause pregnant women to delay necessary and perhaps lifesaving medical procedures, totally unrelated to the birthing process, due to misinformation regarding the effect of anesthetics on the fetus. He stated that the American Society of Anesthesiologists, while not taking a position on the bill, . . . have nonetheless felt it our responsibility as physicians specializing in the provision of anesthesia care to seek every available forum in which to contradict Dr. McMahon's testimony. Only in that way, we believe, can we provide assurance to pregnant women that they can undergo necessary surgical procedures safely, both for mother and unborn child. Dr. Ellison also noted that, in his medical judgment, in order to achieve neurological demise of the fetus in a partial-birth abortion procedure, it would be necessary to anesthetize the mother to such a degree as to place her own health in jeopardy. In short, in a partial-birth abortion, the anesthesia does not kill the fetus. The baby will generally be alive after [[Page S 17883]] partly being delivered into the birth canal and before having his or her skull opened and brain sucked out. That is also consistent with evidence provided by Dr. Haskell describing his use of the procedure. In his 1992 paper presented before the National Abortion Federation, which is part of the hearing record, Dr. Haskell described the procedure as first involving the forceps- assisted delivery into the birth canal of an intact fetus from the feet up to the shoulders, with the head remaining in the uterus. He does not describe taking any action to kill the fetus up until that point. In a 1993 interview with the American Medical News, Dr. Haskell acknowledged that roughly two-thirds of the fetuses he aborts using the partial-birth abortion procedure are alive at the point at which he kills them by inserting a scissors in the back of the head and suctioning out the brain. Finally, in a letter to me dated November 9, 1995, Dr. Watson Bowes of the University of North Carolina Medical School wrote, Although I have never witnessed this procedure, it seems likely from the description of the procedure by Dr. Haskell that many if not all of the fetuses are alive until the scissors and the suction catheter are used to remove brain tissue. Simply put, anesthesia given to a mother does not kill the baby she is carrying. Misrepresentation No. 2 Let me move on to the next misrepresentation. Another myth that the hearing record debunks is that the procedure can be medically necessary in late-term pregnancies where the health of the mother is in danger or where the fetus has severe abnormalities. Now, there were two witnesses at the hearing who testified as to their experiences with late-abortions in circumstances in which Dr. McMahon performed the procedure. Both women, Coreen Costello and Viki Wilson, received terrible news late in their pregnancies that the children they were carrying were severely deformed and would be unable to survive for very long. I would like to make it absolutely clear that nothing in the bill before us would prevent women in Ms. Costello's and Ms. Wilson's situations from choosing to abort their children. That question is not before us, and it is not one that we face in considering this narrow bill. I also would like to point out that I have the utmost sympathy for women--and their husbands and families--who find themselves receiving the same tragic news that those women received. Regardless of whether they aborted the child or decided to go through with the pregnancy, which is what another courageous witness at our hearing, Jeannie French of Oak Park, IL, chose to do--and as a result, her daughter Mary's heart valves were donated to other infants--their experiences are horrendous ones that no one should have to go through. The testimony of all three witnesses was among the most heart- wrenching and painful testimony I have ever heard before the committee. My heart goes out to those three women and their families as well as any others in similar situations. However, the fact is that medical testimony in the record indicates that even if an abortion were to be performed under such circumstances, a number of other procedures could be performed, such as the far more common classical D&E procedure or an induction procedure. When asked whether the exact procedure Dr. McMahon used would ever be medically necessary--even in cases like those described by Ms. Costello and Ms. Wilson, several doctors at our hearing explained that it would not. Dr. Nancy Romer, a practicing Ob-Gyn and clinical professor in Dayton, Ohio, stated that she had never had to resort to that procedure and that none of the physicians that she worked with had ever had to use it. Dr. Pamela Smith, the director of medical education in the department of obstetrics and gynecology at the Mount Sinai Medical Hospital Center in Chicago, stated that a doctor would never need to resort to the partial-birth abortion procedure. Misrepresentation No. 3 This ties in closely to what I consider the next misrepresentation made about the partial-birth abortion procedure: the claim that in some circumstances a partial-birth abortion will be the safest option available for a late-term abortion. Testimony and other evidence adduced at the Judiciary Committee hearing amply demonstrate that this is not the case. An article published in the November 20, 1995, issue of the American Medical News quoted Dr. Warren Hern as stating, ``I would dispute any statement that this is the safest procedure to use.'' Dr. Hern is the author of ``Abortion Practice,'' the Nation's most widely used textbook on abortion standards and procedures. He also stated in that interview that he ``has very strong reservations'' about the partial-birth abortion procedure banned by this bill. Indeed, referring to the procedure, he stated, ``You really can't defend it. I'm not going to tell somebody else that they should not do this procedure. But I'm not going to do it.'' In fairness to Dr. Hern, I note that he does not support this bill in part because he feels this is the beginning of legislative efforts to chip away at abortion rights. We have included a statement from him in the Record. His opinion on the procedure, however, is highly instructive. I think Dr. Nancy Romer, a professor in the department of obstetrics and gynecology at the Wright State University School of Medicine and the vice chair of the department of obstetrics and gynecology at Miami Valley Hospital, both in Dayton, OH, explained it best. I will quote her entire statement on this point: If this procedure were absolutely necessary, then I would ask you, why does no one that I work with do it? We have two high-risk obstetricians, and a medical department of about 40 obstetricians, and nobody does it. We care for and do second- trimester abortions, and we have peer review. We are watching each other, and if we truly were doing alternative procedures that were killing women left and right, we would be out there looking for something better. We would be going to Dr. Haskell and saying, please, come help us do this. And we are not. We are satisfied with what we do. We are watching each other and we know that the care that we provide is adequate and safe. I think that says it all as far as safety is concerned. Misrepresentation no. 4 Another misrepresentation that should be set straight concerns claims that the partial-birth abortion procedure that would be banned by this bill is in fact performed only in late-term pregnancies where the life of the mother is at risk or where the fetus is suffering from severe abnormalities that are incompatible with life. I certainly do not dispute that in a number of cases the partial- birth abortion procedure has been performed where the life of the mother was at risk or where the fetus was severely deformed. Substantial available evidence indicates, however, that the procedure is not performed solely or primarily where the mother's life is in danger, where the mother's health is gravely at risk, or where the fetus is seriously malformed in a manner incompatible with life. The fact of the matter is--and I know this is something that opponents of the bill have not faced--this procedure is being performed where there are only minor problems with the fetus, and for purely elective reasons. Dr. Haskell stated in testimony given under oath last month, on November 8, 1995, in Federal district court in Ohio, that he performs the procedure on second trimester patients for some medical and some not so medical reasons. [See Dist. Ct. Tr. at 104.] That court transcript is part of the hearing record. In transcripts from Dr. Haskell's 1993 interview with the American Medical News--also part of the hearing record--Dr. Haskell states ``most of my abortions are elective in the 20-24 week range. In my particular case, probably 20 percent are for genetic reasons [and] the other 80 percent are purely elective.'' Meaning that 80 percent of those kids that are destroyed are normal kids. Dr. Romer testified that she has cared for patients who had received a partial-birth abortion from Dr. Haskell for reasons that were purely based on the woman not wanting a baby, for--as she put it--social reasons. Most important, however, medical testimony at our hearing indicated that a health exception in this bill is [[Page S 17884]] not necessary because other abortion procedures are in fact safer and better for women's health. As for examples of overly broad health rationales for this procedure, Dr. McMahon indicated--in a 1995 letter submitted to Congress and in a 1993 interview with the American Medical News--that, although all of the third trimester abortions he performed were nonelective, approximately 80 percent of the abortions he performed after 20 weeks of pregnancy were therapeutic. Dr. McMahon then provided the House Judiciary Committee with a listing of the so-called therapeutic indications for which he performed the procedure. That list is a real eye opener. The single most common reason for which the partial-birth abortion was performed by him was maternal depression. He also listed substance abuse on the part of the mother as a therapeutic reason for which he performed the procedure. In terms of fetal so-called abnormalities, Dr. McMahon's own list indicates that he performed the procedure numerous times in cases in which the fetus had no more serious a problem than a cleft lip. Dr. Haskell has similarly acknowledged that he is not performing the procedure in critical instances of maternal or fetal health. In Dr. Haskell's testimony in Federal district court in Ohio last month, Dr. Haskell stated: ``Patients that are critically ill at the time they're referred for termination, I probably would not see. Most of the patients that are referred to me for termination are at least healthy enough to undergo an operation on an outpatient basis or else I would not undertake it.'' When asked about the specific health-related reasons for which he performed the partial-birth abortion procedure, Dr. Haskell specified that he has performed the procedure in cases involving high blood pressure, diabetes, and agoraphobia on the part of the mother. [See Dist. Ct. Tr. at 105.] Of course, agoraphobia is the fear of going outside. Dr. Haskell acknowledged that in district court. That, to me, is outrageous. Now, let me be perfectly clear that I do not doubt that in some cases this procedure was done where there were life-threatening indications. However, I simply must emphasize two points. First, those cases are by far in the minority. We should get the facts straight so that our colleagues and the American people understand what is going on here. Second, the most credible testimony at our hearing--confirmed by other available evidence--indicates that even where serious maternal health issues exist or severe fetal abnormalities arise, there will always be other, safer abortion procedures available that this bill does not touch. Misrepresentation No. 5 Finally, the next misrepresentation I would like to correct concerns whether this procedure exists. That claim should be put to rest once and for all. Some opponents of this measure still insist on claiming that the procedure banned by this bill--the partial-birth abortion procedure-- does not exist solely because the two doctors who have admitted performing the procedure--the late Dr. McMahon of Los Angeles and Dr. Haskell of Ohio--used different terms for the procedure. The bill clearly defines the term partial-birth abortion as ``an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.'' I think that the term partial-birth abortion does provide an accurate, shorthand description of that full definition. Dr. Haskell refers to the procedure as a D&X, while the late Dr. McMahon referred to the procedure as an intact D&E. As medical witnesses at the hearing pointed out, the procedures--by whatever name--are virtually unheard of in the medical and scientific literature. As Dr. Watson Bowes of the University of North Carolina at Chapel Hill wrote to me, ``The term `partial-birth abortion' is accurate as applied to the procedure described by Dr. Martin Haskell in his 1992 paper. There is no standard medical term for this method.'' I submit that there is no medically accepted terminology for the procedure because the procedure has not been medically accepted. There can be no question, however, that the procedure banned by this bill does exist and has been performed repeatedly. That is disturbing. It is troubling. We should be confronting the ethical dilemmas the procedure raises rather than sticking our heads in the sand and quibbling about whether the procedure exists under any particular name or another. On that note, I would like to close by highlighting a statement made at our hearing by Helen Alvare of the National Conference of Catholic Bishops. She remarked that opponents of this bill keep asking whether enacting it would be the first step in an effort to ban all abortions. In her view, however, the real question should be whether allowing this procedure would serve as a first step toward legalized infanticide. I urge the bill's opponents to ask themselves this question. What is the real purpose of this procedure? That is the fundamental problem with this procedure. It involves killing a partially delivered baby. The previous debate on this bill ended when the Senate voted to require a Judiciary Committee hearing. Let me say to my colleagues in the Senate that the testimony presented during this hearing more than confirmed my view that this procedure is never medically necessary and should be banned. This testimony, regardless of one's view on the broader issue of abortion, provides ample justification for an ``aye'' vote on H.R. 1833. Mr. SMITH addressed the Chair.

Mr. HATCH. Mr. President, I rise to address one aspect of the debate over the partial-birth abortion bill: the argument that the bill is unconstitutional. Opponents of this bill raise arguments challenging its constitutionality that, I believe, reflect a fundamental misunderstanding of constitutional principles and of the Supreme Court's abortion jurisprudence. This is not only my view, but the view of numerous respected constitutional scholars at our Nation's finest law schools, such as, just to name a few, Michael McConnell, the Graham professor of law at the University of Chicago, and Douglas Kmiec of the Notre Dame Law School, and of other authorities on constitutional law, such as William Barr, former Attorney General of the United States. I believe that H.R. 1833 is constitutional. Because of the timing in the birth process in which these abortions occur, these fetuses may actually qualify as persons under the Constitution. As such, they are entitled to all of the protections of the law that all other American citizens receive under the Bill of Rights, particularly the 5th and the 14th amendments to the Constitution. This bill only applies to fetuses which are partially delivered. As such these partially born fetuses do not fall under the framework of Roe versus Wade and Planned Parenthood versus Casey, which apply only to the unborn. Although State laws on homicide and infanticide generally protect only fully born children, at least 36 States allow recovery under wrongful death statutes for postviability prenatal injuries that cause stillbirth, and another one-third of the States consider killing an unborn child, other than through an abortion, as some form of homicide. Given these statutes, some States logically have promulgated laws that protect children in the process of being born, such as Texas and California. In light of this existing law, as Professor Kmiec, a former Assistant Attorney General for the Office of Legal Counsel, testified before the Judiciary Committee, it is entirely appropriate for Congress to pass a statute protecting such partially born children to clarify their status under the Constitution. Opponents of this bill would have us believe that 3 inches and 3 seconds can make all the difference. In other words, they would have us believe that a living infant, capable of life outside the mother's womb, and actually in the process of birth, is not a person, entitled to the full panoply of constitutional protections and rights, because it is 3 inches and 3 seconds from birth. Would the Constitution fail to protect a fetus 2 inches and 2 seconds from life? One second and one inch? Even if one believes that these children qualify as unborn, the Supreme Court's jurisprudence on abortion, principally articulated in Planned Parenthood versus Casey, fully permits Congress to pass this ban on partial-birth abortion. In Casey, the Court, speaking through a three-Justice plurality, Justices O'Connor, Kennedy, and Souter, tossed out Roe versus Wade's trimester framework and articulated three principles to guide courts in abortion cases. First, the woman has a right to terminate her pregnancy before fetal viability.--Casey, 112 S.Ct. at 2804. Second, the interest of the State in promoting prenatal life permits the State to regulate, and even prohibit, abortions after fetal viability, subject to exceptions for the life or health of the mother. Third, the State has legitimate interests throughout pregnancy in protecting the health of the mother and the life of the fetus. Under this framework, this bill is constitutional because it only prohibits the abortion of living, viable fetuses, and only by one abortion procedure. The medical testimony we heard in the Judiciary Committee indicated that about two-thirds of the fetuses aborted in this manner are alive, and that this procedure is generally used largely, if not exclusively, during the period of viability. Further, H.R. 1833 is limited only to abortions in which a living fetus is partially delivered and then killed. The Casey right to a an abortion before viability is not implicated in this bill, because the bill exempts the abortion of nonviable fetuses and applies only to abortions after viability. Opponents of the bill reduce our great Constitution to trivialities if they argue that the Constitution guarantees a right to a specific abortion procedure. Nor does this bill somehow impose an undue burden upon the right to abortion, the test adopted by the three-Justice plurality which, I might add, is not the law of the Supreme Court until it receives a majority. As Prof. Michael McConnell has written in a November 29, 1995, letter to the Judiciary Committee: Since this bill would ban only one method of abortion--one that, according to testimony by medical experts, is quite rare--it seems evident that it meets this standard. It can hardly be an ``undue burden'' to require abortionists to conform to standard and accepted medical practice. Although the undue burden standard is rather unclear, it is still difficult, if not illogical, to conclude that prohibiting one method of abortion, infrequently used, will interpose a ``substantial obstacle in the path of a woman seeking an abortion.''--112 S.Ct. at 2820. Women seeking abortions previability still may resort to D&C and D&E procedures, which account for most abortions in this country. And, of course, women will have available the other methods of postviability abortion, which our hearings have shown are safer and more widely used. The Justice Department and the bill's opponents have espoused two main criticisms of the bill. First, they claim that the bill must have an explicit exception for abortions performed to preserve the health of the mother, which it currently does not have. Second, they claim that the bill's provision for an exception for the life of the mother is unconstitutional because it is structured only as an affirmative defense. Both arguments are, in the words of former Attorney General William Barr, meritless. I will respond to them in turn, but let me note that legal experts of the highest reputation and credentials find these objections to be unconvincing and unsuccessful. Let me take up the fist argument. In Casey, the Court rejected the trimester framework in favor of a bifurcated approach based on fetal viability, while reaffirming the core holding of Roe. According to the Supreme Court, after the fetus becomes viable, the Government can prohibit abortion except in cases where the life or health of the mother is threatened. [[Page S 17894]] This bill does not threaten a woman's right to have an abortion, nor does it threaten a woman's life or safety, because it leaves open alternative methods of abortion both before and after viability-- methods which the top experts in the field have testified are safer than Dr. Haskell's method. By banning this rogue method, we actually enhance the woman's safety, not injure it. I think it is worth quoting the experts on this point, due to the great weight that opponents of this bill have placed on this weak argument. As Professor Kmiec testified before the Judiciary Committee: The bill by its focussed, targeted structure implicitly provides for the health of the mother by not banning all abortion procedures at this later stage of the pregnancy, but only the one seen as patently and inhumanely offensive. As Professor McConnell of Chicago concludes: In light of authoritative medical testimony that partial birth abortions are not necessary for preservation of the mother's health, the bill could not be invalidated on that ground. According to Former Attorney General Barr: Congress could reasonably conclude from the record that the partial-birth abortion procedure is not safer for a mother's health than other available--and well-established-- alternatives. It would therefore be pointless to include a health exception in H.R. 1833 because this exception could not be legitimately invoked. It seems clear that a written exception for the health of the mother need be included only if Congress attempted to ban all postviability abortions, not just this single, rare, offensive method of killing partially born children. The Supreme Court has recognized many legitimate interests that may justify abortion statutes such as the one before the Senate: First, safeguarding health, maintaining medical standards, and in protecting potential life; Second, protecting immature minors, promoting general health, promoting family integrity, and encouraging childbirth over abortion; Third, protecting human life, protecting the dignity of human life, preventing both moral and legal confusion over the role of physicians in our society, and Fourth, preventing cruel and inhumane treatment. Clearly, this bill furthers these interests--recognized as constitutional by the Supreme Court. The Clinton administration argues that this bill would force an increased medical risk on women, and hence would violate the Constitution. The administration relies upon two cases, Thornburg versus American College of Obstetricians and Gynecologists, and Planned Parenthood versus Danforth, for the proposition that any State regulation of abortion that might increase the medical risk to the woman is unconstitutional. First, the factual basis for this argument is absent because there is no evidence that partial-birth abortions are ever necessary to preserve the life or health of the mother. In fact, the evidence presented before the Senate Judiciary Committee and before the House Judiciary Committee demonstrated that this procedure is often more dangerous to the life or health of the mother than the other procedures used for late-term abortions. Second, it is unclear whether Thornburgh and Danforth are any longer good law. Casey overruled much of the holdings of these cases, and scholarly commentary--not to mention pro-abortion activists--initially attacked Casey for overruling several such abortion cases. Indeed, the very trimester framework employed by Thornburgh and Danforth was clearly overruled by Casey. Third, the statutes in Thornburgh and Danforth were clearly and utterly different from the bill before us. The State law in Thornburgh required that a second physician be present during a postviability abortion and that a physician performing a postviability abortion had to attempt to preserve the life and health of the unborn child. This bill does not place such an obligation upon the physician. Indeed, the physician is free to use any other abortion procedure he or she sees fit to protect the life and health of the mother, aside from the partial-birth method. Indeed, should the life of the mother be threatened, this bill even permits the physician to employ partial-birth procedures. In Danforth, the state law outlawed the safest and most common abortion procedure for first trimester abortions. The Court struck down that statute because it constituted a barely veiled attempt to outlaw first-trimester abortions entirely. Here, there is nothing of the sort. In fact, the bill permits the continued use of the more popular, and safe, methods of late-term abortions. Turning to the second main criticism, the administration and other opponents claim that the bill is unconstitutional because it permits a doctor to justify a partial-birth abortion only as an affirmative defense to a prosecution. The fact that the bill provides the exception required by the caselaw in an affirmative defense does not unduly burden the right to an abortion. As I noted when I spoke about this bill last month, many of our constitutional rights arise only as an affirmative defense. Many of the protections of the Bill of Rights sometimes can only be raised as a defense to a prosecution. To claim that the right to an abortion is not protected by an affirmative defense demeans the explicit protections of the Bill of Rights; and it raises abortion above any other right in the Constitution. Again, top legal experts I have consulted agree that there is nothing unusual in having one's personal rights evaluated by means of an affirmative defense. As Professor Kmiec testified before the Judiciary Committee, the Supreme Court has approved the common practice of States to place upon criminal defendants the burden of proving affirmative defenses, such as insanity or killing in self-defense. In fact, as both Professor Kmiec and former Attorney General Barr note, it makes sense for this burden to fall upon the doctor, for it is the doctor who is uniquely well-positioned to establish that he or she reasonably believed both that the abortion was necessary to save the mother's life and that no other procedure would suffice. Let me address two other minor arguments that have arisen. First, there are those who argue that Congress lacks power under the interstate commerce clause to regulate the practice of abortion. It is incredible to me that those who were in favor of the Freedom of Choice Act and the Access to Clinics Act would raise such an argument. Nonetheless, I will give it the swift dismissal that it deserves. Whatever one might think about the expansion of Federal power under the commerce clause, whether H.R. 1833 falls within this power ``poses an easy case under current interpretation,'' as Professor McConnell puts it. We can all agree that the provision of medical services are commercial activities and that abortions are medical services. Even after the decision last Term in Lopez, the Court has been fairly clear that Congress may regulate all commercial activities, because they frequently involve an interstate market. If Congress can regulate health care, which it does today in myriad different ways, it can regulate abortions. And, if this bill is unconstitutional, then a whole host of other laws, starting with the Access to Clinics Act, are unconstitutional as well. Second, some argue that this bill will unfairly punish nonphysicians, even though only those performing the partial-birth abortion are subject to its criminal penalties. They claim that Federal aiding-and- abetting laws or misprison laws will hold liable nurses, anesthesiologists, or even rape counselors. This argument does not even qualify as makeweight. For example, to be guilty of a misprison of felony, one must not just fail to report a crime; one must actually engage in an affirmative, overt act of concealment of a felony. As Professor Kmiec concludes, ``Logic, prosecutorial discretion under the policies of the Department of Justice, and the strict scienter element necessary to prove beyond a reasonable doubt the underlying offense, all suggest that any possible criminal liability . . . under freestanding conspiracy, [[Page S 17895]] misprison, or aiding and abetting statutes is highly speculative, if not farfetched.'' One cannot help but agree with him. The weight of both evidence and logic lead us to the conclusion that constitutional objections to this legislation are mere red herrings designed to throw the debate off of the real issue--whether or not this horrible procedure is justified. Mr. DeWINE addressed the Chair.

Mr. HATCH

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

Mr. HATCH

Mr. HATCH. Mr. President, I have had delivered to each Senator a copy of the transcript of the Judiciary Committee's November 17 hearing on H.R. 1833, the Partial Birth Abortion Ban Act, together with inserts and written submissions. Since the distribution of these materials, I have received answers to written questions from another one of the witnesses who testified at the hearing. I ask unanimous consent that a letter from Dr. Norig Ellison to me be included in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, as my colleagues are aware, I have introduced legislation to reform the way property owners are treated by the Government. My legislation would encourage, support, and promote the private ownership of property by clarifying existing laws and creating a more uniform and efficient process by which these rights are protected. In short, it seeks to protect the rights of citizens as envisioned by the Framers of the Constitution. Recently, however, critics have misinterpreted some of the bill's provisions. For example, some have stated that this bill would cost the taxpayers billions of dollars to implement or that it would force the Government to pay polluters to clean up their act. These fears are not warranted. I was encouraged by an editorial in Salt Lake City's Deseret News headlined ``Enough with half-truths about property rights bill.'' This editorial dispels the myths and misconceptions about property rights legislation. I commend it to my colleagues. Mr. President, I ask unanimous consent that the text be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to express my strong support for this legislation being introduced today by my good friend from Alaska, Senator Murkowski, regarding rights-of-way granted under revised statute [R.S.] 2477. This issue is of extreme and critical importance to my State, and this legislation is necessary to resolve, once and for all, the current situation that has clouded these rights since 1976. I want to congratulate Senator Murkowski for his leadership to bring the matter of claims made pursuant to R.S. 2477 to a close. I have worked closely with him to draft this proposal that meets the needs of all claimants in the various States, especially Alaska and Utah, where the overwhelming majority of R.S. 2477 claims are located. Mr. President, since 1976, when R.S. 2477 was repealed with passage of the Federal Land Policy and Management Act [FLPMA], State and local governments have had to wage constant battle with the Federal Government as to what constitutes a valid R.S. 2477 claim as well as what the scope of that claim is once it is determined valid under this statute. In Utah, this battle has been raging for quite some time. And, this firestorm is quickly spreading throughout the West. The controversial and highly publicized Burr Trail case in Garfield County, Utah, which has been litigated during the past decade, has brought this issue to the forefront. Nearly every county in UT, as well as many others in the West, has identified numerous R.S. 2477 rights-of-way claims. These local governments are justifiably concerned that the validation process of each claim may require enduring the same financial and legal burdens as the Burr Trail case, especially considering that more than 10,000 claims have been identified in Utah alone. There has to be a better solution than the current system, which is what my colleagues from Alaska, Senators Murkowski and Stevens, and my colleague from Utah, Senator Bennett, and I have been fighting for during the past few years. At issue here is what constitutes a right-of-way as authorized by Congress in 1866. R.S. 2477 rights-of-way are thoroughfares, cart paths, one lane dirt roads, small log bridges over streams or ravines, and other roads that time and necessity have created in our western States. These rights-of-way, which traverse Federal lands--and we are obviously not using the term highway in the modern sense--have been an integral part of the rural American landscape for over 100 years. These rights-of-ways constitute an important part of the infrastructure of the Western States. I would ask my colleagues to think of this issue this way: suppose your front yard belonged to someone else--the Federal Government, for example--and the gravel driveway through the front yard was the only way to get to your house from the street. If you do not have complete authorization to maintain, improve, and keep open this driveway, then access to your home and possessions is eliminated. You would have to haul your groceries to your front door from the street. A simple illustration, perhaps, but one that shows the importance of these R.S. 2477 rights-of-way to the people in the West. These rights-of-ways were accepted before 1976 and, like your driveway, have been used continuously for decades as an integral part of the West's transportation systems. The Senate should take appropriate action to protect the well-being of western and Utah communities. Our legislation proposes to resolve the current controversies surrounding R.S. 2477 rights-of-way in several ways. It would provide a method of relief that many of us in the West have been pursuing for several years, namely that the designation of rights-of-way claims made pursuant to this authority should be determined under State law. The validity of these rights-of-way should be determined at the local level, and not by Congress, the U.S. Department of Interior, or the U.S. Department of Transportation. At the same time, the process for submitting claims under R.S. 2477 should be as simple as possible consistent with legal requirements. A system for determining the validity of such claims should be designed to promptly resolve outstanding R.S. 2477 claims. Our bill creates such a process and places the burden of proof of each claim squarely on the shoulders of the Federal Government. Without this process, I envision a Federal system under which resolutions of such claims will become tremendously bogged down with no substantial resolution to this issue. My colleagues may ask that if these rights-of-way have existed for 100 years, why is this legislation necessary? Last August, the Clinton administration and Secretary Babbitt proposed regulations to settle this issue. These regulations would require a complete abandonment by State and local governments of R.S. 2477 rights-of-way claims and a total rejection of any evidence that documents the existence [[Page S 17532]] and historic use of these rights-of-ways from 1866 up to 1976. They would allow the Secretary to determine whether or not a right-of-way existed prior to 1976 which, in my opinion is nothing more than asking State and local governments to abrogate their responsibilities as the owners of these rights-of-ways. We in the West are unwilling to do that. The Secretary's regulations are evidence that the task of achieving a solution that protects the intent and scope of the original statute while preserving the infrastructure of rural communities must involve Congress. As far as I am concerned, we are beyond a regulatory fix on this subject, particularly in light of the regulatory proposal put forward by the Clinton administration. Fortunately, Congress has included language in next year's Interior appropriations bill that prohibits the implementation of these misguided regulations. Basically, our legislation will ensure that: First, the intent and scope behind the original statute are consistent with the intent and scope underlying congressional passage of FLPMA; second, the congressional intent regarding the interpretation of R.S. 2477 in accordance with State law is preserved; third, the large body of settled, well-established, and well-documented Federal and State case law and agency regulatory determinations is adhered to, and fourth, the trust and respect for State and local governments, which hold these rights and are entitled to exercise their powers within the sphere of their authority without Federal intervention are restored. Mr. President, this matter is critical to communities and citizens in the rural West. In many cases, these roads are the only routes to farms and ranches; they provide necessary access for schoolbuses, emergency vehicles, and mail delivery. The Interior Department regulations would significantly confound transportation in the Western States, jeopardizing the livelihoods of many citizens and possibly their health and safety as well. Some claim that R.S. 2477 rights-of-way are nothing more than dirt tracks in the wilderness with no meaningful history, whose only value to rural counties arises from the hope of stopping the creation of wilderness areas. Nothing could be further from the truth. No one is suggesting that we turn these rights-of-way into six-lane lighted highways with filling stations, billboards, and fast food restaurants. Although, I am confident in saying today that I expect those opposed to this legislation to initiate a campaign of misinformation, dishonest facts, and outright untruths about the impact of our bill. They will paint a picture of our bill as authorizing the construction of paved roads through wilderness areas, native American trust lands, and national parks. They will employ these scare tactics, like they have on other public land measures now before Congress, to mislead the public and the media into believing an array of bulldozers, graders, and other road building vehicles are ready to begin an assault on the Nation's most pristine areas. Again, nothing could be further from the truth. If the right-of-way exists, then the scope and the attributes of that right must be protected from the local entity with jurisdiction. We are not--I repeat, not--authorizing the construction of roads over public lands where no right-of-way exists. Our bill provides the Secretary of Interior considerable latitude to express his position on each and every claim that is submitted and why these claims may or may not be valid. I do not like to be so forthcoming in this way, but after witnessing the misinformation campaign being waged against our Utah wilderness bill, I want to prepare my colleagues for what is coming. I would ask that they carefully confer with those of us who have thousands of these claims in our States so as to fully recognize the importance of this matter to our citizens. There is no pressing environmental reason to change the R.S. 2477 rules other than to make Federal land more pristine than it has been since the pioneers settled in the West. I urge the Senate to support adoption of this legislation during this Congress.