Howell Heflin

Mr. HEFLIN

Mr. HEFLIN. The Senator is correct. Although the language in the act envisions that the first meeting of the Commission would take place within 210 days of enactment of the act. It is clear that first meeting as well as the actual 2-year duration of the Commission should be based on the date on which the first formal meeting, is held. This is the practical effect of the budgeting process, to which the Commission is bound.

Mr. HEFLIN. I will be happy to help to clear up any questions which may have been raised regarding membership on the Commission. It is my understanding that this provision is intended to preclude from continued membership on the Commission those Commissioners who are appointed based solely on the capacity of the governmental office for which they hold. If that Commissioner should leave the governmental position during their term then they can no longer serve on the Commission.

Mr. HEFLIN

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HEFLIN. Mr. President, I am not going to really make a speech on the issue of the arms embargo on the Government of Bosnia and Herzegovina, but rather attempt to raise some issues and some questions. There have been a number of questions about what would happen in the event that the United States unilaterally lifts the arms embargo. Some of the questions that have come to my mind--and for which I do not have the answers--I think are important, and I think we ought to ask a number of questions and attempt to at least analyze those questions, and, of course, hopefully to come up with answers. Some of my questions are, first, how close to winning the war are the Serbs? Second, if we arm the Bosnians, what are their chances of winning the war? Third, if we arm the Bosnians, and they cannot win the war, then there seems to be a number of questions that ought to be considered, such as the following: What are the consequences in terms of death and other casualties? What will be the likelihood of the enlargement of the conflict to other areas and countries? What period of time will it take to train the Bosnians and assemble arms sufficiently to make the Bosnians into a credible fighting force? During the period of time that it would take to train the Bosnians and assemble the arms, can the Serbs intensify their fighting sufficiently to make victory for the Serbs inevitable? What type of victories must the Bosnians win, and how many such victories will be necessary in order to bring about a negotiated peace? Then, I think one of the ultimate questions we have to ask is what are the prospects of a lasting peace without a complete, unconditional surrender by one side or the other? I do not know the answer to these questions. But I think these questions ought to enter the thought processes of each Senator in making his decision on this issue. [[Page S 10291]] Mr. President, I yield the floor. I suggest the absence of a quorum.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, I attended the change of command of the Commandant of the U.S. Marine Corps where Gen. Charles Krulak relieved Gen. Carl Mundy and became the 31st Commandant of the Marine Corps. The Honorable John H. Dalton, Secretary of the Navy, made a truly outstanding speech. Therefore, I would like to share the contents of this speech with my colleagues, so I ask unanimous consent that a copy of his speech entitled, ``The Marine Corps' Change of Command'' be printed in the Congressional Record following my remarks.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, during the course of debate on the products liability bill, I mentioned nuclear power plants and the possible effect that the proposed legislation might have on two issues dealing with a nuclear power plant problem--one being the issue of pain and suffering and the other being the statute of repose. Then on May 9, 1995, I spoke on this issue in the U.S. Senate. I concluded my remarks by saying that I wanted to do further research pertaining to these issues. I asked the Congressional Research Service of the Library of Congress to look into this and they have prepared a memorandum. I ask unanimous consent that the attached memorandum from the Congressional Research Service be printed in the Congressional Record following my remarks.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, I want to commend and congratulate an outstanding employee of the Department of Agriculture in Alabama, Beulah G. Varnell. She has been working in various capacities for the Department there for over 50 consecutive years. Prior to joining the Department of Agriculture's Consolidated Farm Service Agency [CFSA], Mrs. Varnell worked at the Red Stone Arsenal in Huntsville, AL, for a short period of time. In 1945, she began work as Assistant Clerk of Conservation Materials and the next year became Principal Conservation Material Clerk. She progressed steadily over the next few years to Senior Clerk in 1949. Beulah Varnell has demonstrated exceptional ability to assuming and carrying out many programs, with primary responsibilities for administrative, price support, conservation, wool and mohair, and feed grain. She became Chief Program Assistant in 1966 and is known across the State for her knowledge of CFSA programs and her extraordinary ability to get the job done and done well. This is reflected by her willingness to help out with all other programs in the county office. She has worked for four different CEO's during her 50 years with the agency. She has always donated annual leave to the leave transfer recipients and maintains 240 hours of annual leave at the end of each year as indicated by all available records. She currently has accumulated 4,103 hours of sick leave, and has never been off work for any extended period of time. There is a familiar anecdote that Beulah once had a wreck while on her way to work and asked that her typewriter be brought to her home so that she could continue her duties uninterrupted. That is dedication. Beulah married Royce Varnell, who is retired from the Tennessee Valley Authority, in 1950. She is very close to her family, including her brother, 3 sisters, nieces, and nephews. The Varnell's have two farms in Rogersville, AL, one planted with soybeans, the other maintaining several head of cattle. Beulah has lived on a farm in Rogersville all her life and has been associated with all aspects of farming through personal experiences and her job with CFSA. She is an active member of the Rogersville Church of Christ where she teaches a class. Beulah and Royce have a garden every year and also maintain a numerous assortment of flowers around their home. In her spare time, she enjoys crocheting and quilting. She also enjoys spending time at the camphouse on the Tennessee River, visiting with friends and family. In short, Beulah Varnell enjoys life to its fullest, and is happiest when helping others. She is a great asset to CFSA and the Department of Agriculture, having always remained totally dedicated to the needs of county producers. I congratulate her and salute her as one of the best examples of public service our Nation has to offer.

Mr. HEFLIN

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

Mr. HEFLIN. Yes.

Mr. HEFLIN. Mr. President, I am pleased to support and cosponsor S. 343, the Comprehensive Regulatory Reform Act of 1995. The time has come for meaningful regulatory reform and for the Congress to exercise its legitimate legislative function to set statutory standards to guide Federal agencies with regard to their rulemaking authority. Since my term as chief justice of the Alabama Supreme Court when I and others set out to reform Alabama's antiquated judicial system, I learned that true reform never comes easy. Entrenched bureaucracy and vested interest groups will fight you every inch of the way, as I know they are now doing. President Clinton acknowledged the need for regulatory reform in a speech on March 16 of this year when he called for common sense in approaching regulatory reform. He said, and I agree, that ``government can be as innovative as the best of our private sector businesses. It can discard volume after volume of rules and, instead, set clear goals and challenge people to come up wit their own ways to meet them.'' The substitute bill that has emerged is the product of several hearings before the Judiciary Committee, the Energy Committee, and the Governmental Affairs Committee. Extensive discussions have occurred over the last several weeks in an attempt to fashion a consensus bill which can pass the Senate and will be signed by the President. I believe our efforts will prove successful because the bill under consideration is not extreme reform. It does not contain a supermandate, as the House bill does, which would overturn Federal laws to protect our environment, protect worker safety, or guarantee product safety. The last time the Senate attempted to legislate in this area was 15 years ago when working in a bipartisan manner we passed 94-0 a bill known as S. 1080. Regretfully, certain interest groups prevailed upon the House of Representatives to kill our reform efforts. I was a cosponsor of S. 1080 which was drafted to address deficiencies in the Federal regulatory system and to improve the rulemaking process of public notice and comment. The Judiciary Committee report at that time found that the ``dramatic costs of regulation suggest that we may be expending our limited resources on uncertain regulatory remedies for various costs at a significant human cost by depriving other vital interests of these resources.'' The 1982 report found that annual compliance costs of Federal regulation, that is, costs which are borne by those who must comply with regulations, were running ``at more than $100 billion a year.'' The 1995 report from the Judiciary Committee concludes that these costs are now approximately $542 billion. Congress must act to address this problem. rulemaking I note that the first part of the substitute incorporates many procedural improvements to section 553 of the Administrative Procedure Act which defines the rulemaking process. This section substantially incorporates and updates the provisions of S. 1080. This section requires public notice of proposed rulemaking in the Federal Register and expands the amount of information which must be given by an agency to the public so that it can adequately comment on the proposal. An exemption is established from this requirement where such a proposed rule would be ``contrary to an important public interest or has an insignificant impact.'' There are other provisions which are too numerous to mention, but this section is strongly supported by many legal scholars and the American Bar Association. analysis of agency rules The second section of the substitute deals with the analysis of agency rules defining expansively the terms ``costs'' and ``benefits'' to include, not just quantitative considerations, but also qualitative considerations of what a cost-benefit analysis should contain. This section also contains a definition of a ``major rule'' which is set at $50 million, a figure that is arguably too low especially since every President since Gerald Ford has defined, by Executive order, a major rule to be $100 million, as does S. 291, the regulatory bill that reported out of the Governmental Affairs Committee. An earlier draft of this legislation provided that a major rule could also be less that $50 million if it were likely to result in disproportionate costs to a class of persons or businesses within the regulated sector. This provision would have given relief to many small businesses who are all too often threatened with being put out of business due to the costs of implementing a rule. I support an amendment offered by Senator Nunn which will assure that our Nation's small businesses will derive the benefits intended by our reform efforts in this bill. The Nunn amendment would require that a proposed rule which has been determined to be subject to the Regulatory Flexibility Act be considered a major rule for the purposes of cost benefit analysis and periodic review. Agencies frequently propose rules whose annual economic impact would not rise to the $50 million threshold set by this bill, but those rules can and do place significant burdens on small businesses. The Nunn amendment will assure that cost benefit analysis benefit small businesses. I might add that the substitute exempts from the definition of ``rule'' those rules which related to future rates, wages, prices, monetary policy, protection of deposit insurance funds, farm credit insurance funds, or rate proceedings of the Federal Energy Regulatory Commission. Once an agency has determined that a rule is a major rule, the agency must conduct a cost-benefit analysis to demonstrate that, based on the rulemaking record as a whole, the benefits justify the costs and that the rule imposes the least cost of any of the reasonable alternatives that the agency has the discretion to adopt. Quite simply put, this means that if a Chevrolet will get you to your goal, pick it and not the Cadillac model. agency review and petition The next section of this substitute requires each agency to publish a list of existing rules, general statements of policy, or guidances that have the force and effect of rules, that the agency deems to be appropriate for review, and each agency must publish a schedule for systematic agency review of those rules. The agency schedule shall propose deadlines for review of each rule and the deadlines will occur not later than 11 years from the initial schedule established by the agency. This timeframe, to me, is a reasonable one and should allay concerns that agencies will be swamped with too much work as a result of this legislation. This bill also provides a petition process to allow any interested person subject to a major rule to petition an agency to conduct a cost- benefit analysis on an existing rule if it is a major rule and that its benefits do not justify its costs, nor does the rule impose the least costs of the reasonable alternatives. A petitioner has a high standard to meet and will have to spend a great deal of money to conduct its own cost-benefit analysis to show there is a likelihood that the rule's benefits do not justify its costs. I also supported an amendment offered by Senator Abraham which will be included in this section to ensure that agencies periodically review the need for rules which have a substantial impact on small businesses. As section 623 is now written rules will not be subject to review unless an agency chooses to place them on the review schedule or unless an interested party successfully petitions to have the rule placed on the schedule. Thus rules which have a substantial impact on small businesses might be left off of the review [[Page S 9655]] schedule. The Abraham amendment would require agencies to include on their review schedules any rule designated for review by the Chief Counsel for Advocacy of the Small Business Administration. This amendment creates, in effect, a small business counterpart to the petition process available to larger industries and makes section 623 stronger and fairer for all the regulated community. I, therefore, support the provisions of section 623 relating to agency review and the petitioning process. I believe that a reasonable effort and compromise has been achieved which will not overly burden our regulatory agencies and at the same time will ensure that current rules are revised, if necessary, and terminated if they become outdated or useless. decisional criteria Let me turn briefly to the decisional criteria section of this legislation. In my judgment, it does not go as far as the House bill on the issue of supermandate. The House bill's provisions require that a rule's benefits must justify costs and that the rule achieves greater net benefits or the rule must be rescinded outright. The House bill thus supersedes, supermandates, and trumps all other previous statutory criteria. The provisions of this substitute ``supplement any other decisional criteria otherwise provided by law.'' Despite what the critics may say, the Senate bill is not a supermandate, nor is it a wholesale massacre of our Nation's environmental, health, or safety laws and regulations. Under this legislation, Federal agencies are directed to conduct cost-benefit analyses on all major rules they propose to issue. As a general rule, no final major rule shall be promulgated unless the agency head finds: First, that the benefits justify the costs; second, that the rule employs flexible alternatives, and third, that the rule adopts the ``least cost alternative of the reasonable alternatives that achieve the objectives of the statute.'' If the underlying statute does not allow the agency to consider whether a rule's benefits justify its cost, the agency can still issue the rule--unlike the House bill where the rule is precluded from going forward--as long as the rule employs flexible alternatives, and adopts the ``least cost alternative that achieves the objectives of the statute.'' What is unreasonable about Congress requiring agencies to follow these standards when a rule's benefits do not justify its costs? This is what regulatory reform is all about--trying to give the unelected Federal bureaucrats some guidance in their rulemaking authority. judicial review Next, the judicial review provisions of the substitute adequately address concerns that I have raised, and judicial review is granted to review final agency actions. Any cost-benefit analysis or risk assessment shall constitute part of the whole rulemaking record and not be subject to separate, independent consideration. The provisions in the substitute provide for effective judicial review of cost-benefit analyses and risk assessments ``to determine whether the analysis or assessment conformed to the requirements'' of the bill. The judicial review provision does not allow judicial nitpicking to overturn a final rule if an agency fails to follow a procedure required by this law. However, if the substance of a cost-benefit analysis or risk assessment is flawed, a court can and should review such a flawed conclusion as a part of the final agency rulemaking. miscellaneous There are other provisions which I will not attempt to address at length at this time. There is an extensive provision relating to risk assessment, a section known as regulatory flexibility analysis which passed the Senate last year, which I supported, to give relief to small businesses and a provision supported by Senator Grassley known as congressional review which will give Congress the right to veto agency rules before they take effect. Perhaps this should be limited to veto major rules or we may risk being inundated with paperwork. With congressional staffs shrinking, it may be wise to limit this provision, or this provision may prove meaningless. The substitute bill before the Senate is a major step in the right direction toward meaningful regulatory reform. Congressional action to give agencies some greater guidance is warranted and long overdue. I applaud the administration for its recent actions to improve the situation, but it is not enough for my constituents who must live with the reality of regulatory overkill on some occasions. I am quite certain that the entrenched Federal bureaucracy will never approve of true reform. They want unlimited authority to make rules as they see fit. However, I believe the Congress has a responsibility to set some reasonable standards for the bureaucrats to follow. This historic regulatory reform bill is the most comprehensive effort since the Administrative Procedure Act was adopted in 1946. I began my public career reforming one system, and as I approach the end of my career, I am pleased to join the reform that is now needed for the Federal executive branch of the Government.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, I rise in strong support of, and am proud to lend my cosponsorship to, the Farm Credit System Regulatory Relief Act of 1995. The Farm Credit System has played a central role in providing capital to farming families for decades. However, as we face an evolving business world, modifications are necessary for Farm Credit to remain a viable financial partner for American agriculture. The availability of credit is of vital importance to rural economies. The Farm Credit System Regulatory Relief Act addresses the need for adequate and reliable credit by providing for the removal of unnecessary and burdensome regulation which will facilitate the flow of required capital. The Farm Credit Regulatory Relief Act grants the Farm Credit Administration the flexibility to extend the length of time between mandatory examinations to 18 months. The Farm Credit Administration has the authority to examine system-direct lending institutions whenever and as often as the agency chooses. This improvement only changes the mandatory period between examinations. This change will reduce the isntitutions' examination costs and the savings will be passed back to rural borrowers through lwoer loan rates, thereby making capital more easily attainable where it is most needed. In addition to reducing costs, the Regulatory Relief Act will also allow the Farm Credit System to better serve local communities by creating administrative service entities. Current law allows Farm Credit banks to establish such service entities. This act would extend existing authority to Farm Credit System associations which serve the rural communities. I fully support this change and believe that it is long overdue. Through the removal of outdated and burdensome regulations, the Farm Credit System will be able to better serve farming families and rural communities wshile promoting cost savings to agriculture by providing farmers with competitive loan rates. For these reasons, I strongly support the Farm Credit Regulatory Relief Act of 1995.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, America lost one of its great constitutional thinkers and jurists with the death of former Chief Justice Warren Earl Burger on Sunday, June 25. He served as Chief Justice for 17 years, longer than any other in this century. While he pointed the Court toward a more centrist course during his tenure, he nevertheless presided at a time when the Supreme Court was still seen as being at the forefront of social change in this country. As my colleagues know, I have an abiding interest in judicial administration, and I always looked to Justice Burger as a true leader in improving the administration of justice. My term as chief justice of the Alabama Supreme Court coincided with his as the U.S. Chief Justice. He was a tremendous help with our efforts to pass the judicial article and with the court reform movement in our State. He was keenly interested in judicial education not only for legal professionals, but for people from all walks of life, believing that knowledge of the system could help individuals improve their lives. Chief Justice Burger advocated the unified court system for States and founded the National Center for State Courts. He helped organize State and Federal judicial councils to ease the friction that tended to result between State and Federal courts at the time. He developed the Federal Judicial Center, an educational and research arm for the Federal court system. He persuaded Senior Judge Alfred Murrah--for whom the Federal building in Oklahoma City was named--to serve as head of the Judicial Center. Judge Murrah's leadership resulted in enormous strides for the center. Justice Burger was also a strong supporter of the National College of the Judiciary. We might say that Justice Burger's passion was more the overall administration of the law as opposed to the hard substance of the law. He believed that the process of the law was important to preserving its substance. He strove to make the courts run better. He pushed Congress to create more judgeships and to raise judges' salaries. To help eliminate congestion and reduce case backlog, he promoted the streamlining of court procedures. He has been called the guiding force in helping State courts improve their judicial administration. Born in St. Paul, MN, Warren Burger spent his early life on a farm. He worked his way through the University of Minnesota and the St. Paul College of Law, now the Mitchell College of Law. After obtaining a law degree in 1931, he practiced law in Minnesota for over 20 years. In 1953, President Eisenhower appointed him as an assistant U.S. Attorney General for the Justice Department's Civil Division. Three years later, he was placed on the Court of Appeals for the District of Columbia Circuit. In 1969, President Nixon elevated him to the High Court to succeed retiring Chief Justice Earl Warren. The Senate overwhelmingly approved Chief Justice Burger on June 9, 1969, after a judiciary committee hearing that reportedly lasted but an hour and 40 minutes, something that is hard to imagine happening today. As Chief Justice, Warren Burger was tough on criminal defendants, but he was neither a hard-line conservative nor an activist willing to reverse rulings of the Warren Court. After he retired in 1986, he spoke regularly at judicial conventions. He wrote a recent book, ``It Is So Ordered: A Constitution Unfolds,'' in which he narrated in detail 14 major Supreme Court cases. From 1987 until 1991, the former Chief Justice headed the commission on the bicentennial of the U.S. Constitution, a job he pursued with great passion, energy, and intensity. While he believed the Constitution to be a living document, allowing for the evolution of national governmental institutions, he also believed in following the letter of [[Page S 9336]] the law in reaching decisions. He once told an interviewer, ``If you follow your conscience instead of the Constitution, you've got 1,000 constitutions, not one. A judge must decide cases quite often in a way that he doesn't like to decide them at all.'' Of course, Chief Justice Burger wasn't ignoring the role of one's conscience in interpreting the Constitution, for that is an important part of deciding cases. To him, the role of a jurist's conscience was to ensure that he followed the law as written, regardless of personal or political beliefs. Warren Burger will stand in history as one of our great Supreme Court Chief Justices. He served during a time of swift social change in our Nation, and will long be remembered for the balance, moderation, and consistent thoughtfulness he brought to the Court and to the administration of justice in general.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, as most of my colleagues know, Gen. Carl E. Mundy, Jr., Commandant of the U.S. Marine Corps since 1991, will soon be retiring. I have had the personal pleasure of knowing General Mundy as a close friend and fellow Marine for several years. He has enjoyed an outstanding career and has compiled an impeccable record with the Marine Corps. I like to think of General Mundy as a native son of Alabama. He was born in Atlanta, but moved to the State Capital of Montgomery as a young boy. He graduated from Sidney Lanier High School and went on to attend Auburn University. Following his graduation from Auburn, he received his commission as a second lieutenant and began his illustrious military career. As I have said on previous occasions, I know my Senate colleagues from Georgia disagree with me over the issue of General Mundy's state of allegiance. I suppose we can correctly say that he was born in Georgia but that Alabama is proud to consider him an adopted son. General Mundy is a highly decorated officer and a graduate of the Marine Corps Command and Staff College and the Naval War College. He is a recipient of the Legion of Merit, the Bronze Star, the Purple Heart, two Navy commendation medals, and the Vietnamese Cross of Gallantry. Carl Mundy rose through the ranks from his early service in the Second Marine Division, aboard the aircraft carrier Tarawa and the cruiser Little Rock, to become a member of the Joint Chiefs of Staff as the Marine Corp's top soldier. In between, he served numerous tours of duty in Vietnam, including stints as operations officer and executive officer of the Third Battalion, 26th Marines, and Third Marine Division. He was also an intelligence officer with the Third Marine Amphibious Force Headquarters. Prior to being named as a brigadier general in 1982, General Mundy served as aide de camp to the Assistant Commandant of the Marine Corps; as commanding officer, Second Battalion, Fourth Marines, Third Marine Division; as chief of staff, Sixth Marine Amphibious Brigade; and as commanding officer, Second Marines, Second Marine Division and 36th and 38th Marine Amphibious Units. He quickly climbed the Marines' career ladder, advancing to major general in April 1986 and lieutenant general in March 1988. He was the commanding general of the U.S. Atlantic Fleet Marine Force when he became commandant 4 years ago after the retirement of his also-renowned predecessor, Gen. Al Gray. Among the most endearing qualities of General Mundy--one of which most of his colleagues and subordinates are not fully aware--is that of his family life. I know he has a loving wife Linda, a wonderful daughter, Betsy, and that he has had a great influence on his sons, who have followed in his footsteps. Like their father, both Carl III and Timothy graduated from Auburn University and now serve as Marine Corps officers. They have both adopted his unyielding dedication to the Marines. General Mundy lives and breathes the Marine Corps, both in the field and at home. In living and breathing the Marine Corps for many years, Gen. Carl E. Mundy, Jr., has served his country with great distinction, pride, and honor. He has been an outstanding commandant who has guided the Marines through some difficult times. On behalf of the Senate, we thank him and wish him a long, happy, and healthy retirement. At the same time, we hope that we have not seen the end of his public service. ``Semper Fidelis.'' I have a copy of an article which appeared in the summer 1994 edition of Auburn Magazine entitled ``First Among The Few.'' It gives a detailed account of General Mundy's life and career and captures the essence of this consummate Marine and military leader. I ask unanimous consent that this article be printed in the Record.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, I recently had the opportunity to read a commencement speech given on May 21, 1995 by my long time friend, the Hon. Loren Smith, chief judge of the United States Court of Federal Claims, to the graduating class of the John Marshall Law School, in Atlanta, GA. The title of the speech is ``Lawyers, Garden Slugs, and Constitutional Liberty,'' and its theme deals with the relationship of the lawyer in our society to the concept of constitutional liberty. Chief Judge Smith makes some significant points that I think are worthy of consideration by my colleagues, and I ask unanimous consent that it be printed in the Record at this time.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, I want to pay tribute to my friend Irvine Craig Porter, Jr., a longtime Alabama attorney and community leader who passed away recently. Irvine was active in numerous professional and civic organizations throughout his life. He was a member of the Birmingham, AL, and American Bar Associations and was the city attorney for Homewood and Irondale, both Birmingham suburbs, for many years. He was secretary, treasurer, and general counsel for The Club; a member and chancellor of All Saints' Episcopal Church; and the chaplain of the Homewood Lions Club. Irvine was awarded the Selective Service Medal in 1946, the Alabama Commendation Medal in 1968, and the Army's Distinguished Rifleman Badge in 1962. He also served as president of the University of Alabama National Alumni Association and of the board of directors of the downtown YMCA. Irvine Porter was born on May 22, 1910 in Florence, AL. He attended the public schools in Florence and Birmingham, graduating from Phillips High School in 1926, Florence State Teachers' College--now the University of North Alabama--in 1928, and the University of Alabama School of Law in 1932. Irvine was a thoughtful and honest adviser during the many years I had the pleasure of knowing him. He had a keen legal mind, and always seemed to have his finger on the pulse of the people and what they were thinking. I extend my sincerest condolences to his wife, Sarah, and her entire family in the wake of this loss.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, I rise in support of the Boxer amendment which basically is to require a study as to the effect of securities litigation on senior citizens and to then come forward with ideas on how basically they might be protected in the event there are disadvantages that arise relative to the matters that are involved in securities litigation. I also rise in opposition to the bill. This bill has been called a reform bill. I think that is really a misnomer. It has been called by some--and they go, I think, a little too far--the crooks and swindlers protection act. However, the bill which proclaims to curb frivolous lawsuits would essentially put at a substantial disadvantage and penalize the victims of securities fraud and give protection to corporate wrongdoers and their aiders and abettors. This bill has many opponents, including the very people who are responsible for investor protection and overseeing capital formation in the States, the North American Securities Administrators Association. Also the Association for Retired People, AARP; the U.S. Conference of Mayors, and the Government Finance Officers Association number among those that are opposed to S. 240. All oppose the bill for good reason, as noted by the Raleigh News Observer, ``The bill is bad news for investors private and public and it would tie victims in legal knots while immunizing white-collar crooks against having to pay for their misdeeds.'' The sponsors of this bill claim, with very little supporting evidence, that there is a litigation explosion in the securities class action arena. The studies regarding the number of these types of cases do not reflect anything close to an explosion. In fact, they prove that the level of actual cases has remained constant for the past 20 years. In 1993 alone there were only 140 companies sued; there are over 20,000 companies registered with the Securities and Exchange Commission. This small number of companies sued, only 140, hardly amounts to a litigation explosion. The proponents of the bill also claim that most of the cases which were filed are frivolous and that companies feel that they must settle the cases to avoid protracted litigation expenses. Well, if we were to base this reform bill only on what companies believe are frivolous suits, we would believe that the charges filed against the accountants, lawyers, and brokers involved in the Charles Keating, Lincoln Savings fraud case were frivolous. Although they claimed the charges were frivolous, they settled for ten's of millions of dollars with investors who had lost considerably. There probably are cases in which companies have been wrongly sued for stock price decreases not due to fraud or based on actions for which they should not be held accountable. Predominately this is not the case. In fact, according to a study performed by the University of California for 3 years ending in 1990, only 20 companies were hauled into court of the 589 companies whose stocks dropped more than 20 percent in 5 days around the time of a disappointing earnings report. In many of those 20 cases, executives were telling the public that everything looks great, while bailing out of the company and selling their own stock. The amendments offered by Senators Bryan and Sarbanes will go far to achieve a balance between protecting the rights of defrauded investors and providing protection from frivolous lawsuits to honest companies. These amendments include language which was part of the original version of S. 240. I believe that the cosponsors of the original version of S. 240 will agree that the bill as reported out of the Banking Committee steeply tilts the playing fields against investors. Without these amendments, I cannot support this legislation which will strip the rights of defrauded investors. The amendments are supported by the Securities Regulators Association, Government Finance Officers Association, and many others. Acceptance of them could resolve many concerns of these organizations. One amendment would allow the SEC to fashion through its rulemaking an effective safe harbor for forward-looking statements. The SEC and others are concerned that the safe harbor in the bill makes it possible for defendants to avoid liability for false statements. Another amendment would extend the statute of limitations to allow investors enough time to file a securities fraud suit. Currently the bill provides for a time period which is widely regarded as too short. Other amendments which greatly improve this bill involve the ability to pursue accountants, brokers, and other professionals who may have aided in a securities fraud and the apportionment of damages to those secondary violators. One amendment would return to prviate parties the ability to pursue aiders and abetters in securities fraud suits. This amendment is supported by State securities regulators as well as by the SEC. Both of these enforcement agencies have limited resources available and realize the need for private actions to pursue aiders and abetters. The other amendment would allow the innocent victim to be compensated rather than penalized due to the bankruptcy of the primary violator. This amendment would simply restore joint and several liability so that the equities are in favor of the innocent investor. It seems odd that now we are moving to reform securities litigation with a result that would protect those who may create investor scams. If any reform needs to be addressed, based on the current actions on Wall Street, it should come in the form of greater investor protection, not making it easier for corporations and stockbrokers to mislead investors. There is currently a recent frenzy of mergers and takeovers. According to the New York Times securities regulators are opening investigations into insider trading at a rate not seen since the 1980's. Unfortunately, I believe that if this bill were to become law, many of its provisions would soon be tested to the detriment of investors. Our financial markets do not run on money, they run on public confidence. The stock market is trading at all-time highs and companies are earning record profits. This is greatly due to the confidence that investors have in the marketplace. This confidence will be drastically altered if investors come to believe that not only are they at risk of being defrauded, but that they have no recourse to fight back against those who defraud them. I urge my fellow Senators to support all the amendments offered to put investor protection back into this bill. If these amendments are not adopted I will find it difficult to vote for a bill which supports those involved in fraud while tearing down long-standing protection in our securities law. In closing I would like to quote from a letter I received from Mr. Joe Borg, the director of the Alabama Securities Commission. In his letter, Mr. Borg considers the question of whether this bill would achieve a balance between protecting investors and granting relief to honest companies and professionals. He concludes that ``the bill would tilt the balance too far in favor of corporate interest and would have the effect of depriving many defrauded investors of the ability to recover their losses.'' He further states that ``I agree there is room for constructive improvement of the Federal securities process. However, S. 240 as reported by the Banking Committee goes beyond the stated goal of curbing frivolous lawsuits and instead would in practical effect, eradicate most private actions under the Federal securities laws.'' Mr. President, I ask unanimous consent that the full letter be printed in the Record at the conclusion of my remarks.

Mr. HEFLIN. Mr. President, I yield my remaining time to the distinguished Senator from California, Senator Boxer.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, I rise today to pay tribute to Herbert P. Cole, Jr., a great Alabamian and American who recently passed away in his hometown of Mobile, AL. Herb was born in Mobile on January 8, 1919, in an antebellum home known as Oakleigh, which is now a symbol of Mobile and the South. He began his education at the University Military School and then graduated from the Lawrenceville School in Lawrenceville, NJ, in 1938. That fall he entered Princeton University. The dark clouds of World War II were plainly visible and influenced his studies at Princeton. Deciding that America's entry in the war was only a matter of time, he learned to fly and joined the civilian pilot training program. In his senior thesis, he combined his love for flying with his major, economics. He concluded that America's aircraft industry could never gear up in time to be a factor in the war. Upon graduation in June 1942, he set out to prove his conclusion wrong. He immediately joined the Navy as an aviation cadet. He found primary training in Pensacola to be relatively easy since he had logged more hours than his instructor had and, in fact, gave his instructor several pointers. Following carrier qualification in the Great Lakes, he accepted a commission in the U.S. Marine Corps. When asked why he chose the Marines over the Navy, he would explain that the scuttlebutt was that the Navy pilots would be kept State-side to serve as instructors but the Marine aviators would be sent overseas. As was typical of him, he was eager to get the job done and thus joined the Marines. Once overseas, he was assigned to VMSB-341, the Flying Turtles, and flew the SDB Dauntless dive bomber. His missions included strikes against enemy ships and ground support against enemy forces on Rabaul and Guadalcanal, included missions to locate and destroy the infamous ``Pistol Pete'' artillery piece. He earned the Air Medal for his actions in World War II. Following the war, he returned to Mobile. In 1948, he married Valery Converse. He began his career in industrial sales with the Ruberoid Co., now known as GAF. Ruberoid moved Herb and his growing family around the South, first to Americus, GA, then to Jacksonville, FL, and finally back to Mobile. When Ruberoid threatened to move him again, this time somewhere up North, he quit. He had decided that no where in the world were there any people as fine as the ones he knew in Alabama. He then joined BLP Mobile Paint Co. as a salesman. He eventually became vice president for sales. Herb Cole was not all work, though; he found time to enjoy his family and life. Rather than say goodbye, he would often leave his family with the admonition, ``enjoy.'' Like many southerners, he was a sportsman. He enjoyed sailing, hunting, fishing, and supporting the Crimson Tide of Alabama and the Tigers of Princeton. His greatest sports interest, though, was golf. He was an avid golfer all of his life and shot five holes-in-one, including one when he was in his seventies. In 1975, he took an early retirement from BLP Mobile Paint Co. Although he dabbled in real estate and other business ventures at this time, he saw retirement as a time to continue to give to the community. He served on the vestry at St. Paul's Episcopal Church in Mobile, on the board at the YMCA, and as a local representative for Princeton. Probably Herbert's most memorable qualities were his deeply held Christian beliefs and his love for St. Paul's Church. The only place Herbert could [[Page S 8820]] be found on Sunday mornings would be on the fourth pew from the rear in the chapel at St. Paul's Church, along with his wife and four children. In sum, Mr. President, any measure of a man one could take, Herbert Cole met. He was intelligent, articulate, a loving and loved husband and father, a war hero, a successful businessman, and a devout Christian. My colleagues and I send our condolences to ``Miss Valery,'' their 4 children and 10 grandchildren. To Herbert Cole, I say ``Semper Fidelis.''

Mr. HEFLIN

Mr. HEFLIN. Mr. President, I rise in support of the nomination of Dr. Henry Foster and I think his background and training and education makes him uniquely qualified. I rise today in support of the nomination of Dr. Henry Foster to be Surgeon General of the United States. Like many of my colleagues, I do have some reservations concerning the nomination. But in my judgment, there is nothing about his background that--under current law--should disqualify him from serving as the Nation's chief spokesman on health care issues. Based on his testimony before the Senate Labor and Human Resources Committee--which many hailed as an old fashioned tour de force--early last month and the accolades he has received from friends and associates since his nomination, he should be confirmed without further delay. I think his background, training, and education make him uniquely qualified for this position, and I believe his testimony before the committee helped to dispel some of the fears of his opponents. I think we should be encouraged by this process. The May 2 hearing served the purpose for which confirmation hearings are designed--the nominee was able to make his case in his own way and in his own words, outside the realm of political caricature and interest group misrepresentation. His qualifications were already well-known; after the hearing, the nominee was well known. This is the way the process should work. We should now have the opportunity for an up or down vote, based on what we know. What we know of Dr. Foster is that he has 38 years of experience as an educator, professional physician, and public servant. He was the founder of a program that addressed the issue of teenage pregnancy called I Have a Future, developed in 1987. The program stressed abstinence as a first method of reduction. It was chosen by former President Bush for his Points of Light Program. Dr. Foster served 2 years of Active duty and 2 years of Active Reserve duty in the U.S. Air Force. He was instrumental in the consolidation of Meharry Medical College and Metropolitan General Hospital in Nashville, saving both from possible closure. He is a member of the prestigious Institute of Medicine and is a member of many distinguished medical advisory and review boards. He served as chief of obstetrics and gynecology at the John A. Andrew Memorial Hospital in Tuskegee, AL, where he still has the full support of the local citizens. This nomination has been sidetracked by disputes about how many abortions Dr. Foster performed, whether he knew about a controversial 40-year syphilis experiment on black men conducted in Tuskegee, and what role he played in hysterectomies performed to sterilize mentally retarded patients during the 1970's. I am personally opposed to abortion. My position is well known, since the national media once carried my statement: ``As a former fetus, I am opposed to abortion.'' But the fact is that it is a legal medical procedure that is generally carried out by obstetrician-gynecologists such as Dr. Foster. Reasonable people can debate what the law of the land should or should not be with regard to abortion. Regardless of how many abortions he may have performed, the number is irrelevant because it is a legal medical procedure taught in many medical schools. As to the question of his candor in recalling the specific numbers, I suppose it would be fair to say he made errors in his recollection. I practiced law for 25 years in a small country town, and once I was asked how many murder cases I had tried. I gave an answer, and then upon reflection I realized the number I had given was incorrect. Then I got to thinking about it. Well, let us see. I did not think about this case, and I did not think about that case, and I soon realized that each time I thought about it I had really made a mistake. Unless recollections are supported and refreshed by documentation, they are inherently hazy, especially in relationship to a long career. In hindsight, it would be clear that he should have not given out a precise number at the time. He may have made a mistake in [[Page S 8736]] trying to neutralize a politically divisive issue. I do not think he intentionally misled the public, the administration, or the Labor Committee for his own personal gain. The issue of when Dr. Foster knew of the syphilis experiments was addressed at the committee hearing. It has been alleged that he learned of these experiments during a May 19, 1969, briefing on the study. However, based on my reading of the record, Dr. Foster did not learn of the study until it became public in 1972. I have a copy of an affidavit signed by Minnie Capleton Jamison, of Tuskegee, AL, whose son Dr. Foster delivered by Caesarean section on the evening of May 19, 1969. Ms. Jamison specifically recalls that part of the procedure occurred at 7 p.m., with the official medical record indicating that her baby was delivered at 9:17 p.m. The briefing on the syphilis study is said to have begun at 7 p.m. on May 19 at a medical society meeting. I ask unanimous consent that a copy of this affidavit be printed in the Record following my remarks.

Mr. HEFLIN. His critics charge that even if he was not at the May 19, 1969, briefing, he could have found out about the study through specialty journals unlikely to have been read by Dr. Foster. To read all medical articles and all journals, few doctors would have time to treat patients. This standard clearly violates the bounds of reason and logic. Finally, some charge that Dr. Foster should not be confirmed because he performed hysterectomies on four mentally retarded patients for hygiene or life-saving purposes. During his testimony, he responded that these were not ``forced'' or ``involuntary'' sterilizations under the guidelines in place at that time. Informed consent was given consistent with the medical ethics in the 1960's and early 1970's, the time period during which these four procedures were performed. Senator Frist's support is one of the most compelling arguments in his favor. As the Senate's only physician, he is in a unique position to judge the Surgeon General's qualifications and ability to serve. Just as we look to the legal community to make recommendations about Supreme Court and other judicial nominees, we should look to members of the medical community for their assessments of nominees that are relevant to their field. Senator Frist--a physician and Republican-- strongly supports Dr. Foster. Virtually every medical group has come out in favor of his nomination. Their recommendations should carry a great deal of weight as we cast our votes. Some worry that like his predecessor, Dr. Foster will be a divisive figure when who we need is a unifier. But anyone who saw the way he conducted himself at the hearing cannot doubt his ability to bring people together and serve as a soothing force in our Nation. As a national official, his constituency and responsibilities will be vastly different and more comprehensive than as a private physician. There will be competing interests and views that he will have to take into account and often balance if he is to be successful. Like most nominees to high office, I expect Dr. Foster to grow and adapt to his new role in ways that will serve the country well. Dr. Foster has the type of friendly, down-to-earth bedside manner that each of us look for in our own physicians. He has professional expertise and a keen realization of the health problems which confront our Nation that will guide him well in the office of Surgeon General. In deference to basic fairness, cloture should be invoked, and we should proceed to confirm this nominee. Exhibit 1 Statement of Minnie Capleton Jamison My name is Minnie Capleton Jamison, and I am a resident of Tuskegee, Macon County, Alabama. I reside at 1307 Gregory Street in Tuskegee. On the evening of May 19, 1969, I gave birth to my son, Steven Darryl Jamison. Dr. Henry W. Foster was my obstetrician and guided me along the entire course of my pregnancy and delivered the baby. It had been a difficult pregnancy. I was confined to bed for seven of the nine months, and during the fourth month it was necessary for Dr. Foster to perform a surgical procedure to prevent a miscarriage. I had had two miscarriages before this. I went into labor on May 18, 1969. I was admitted to John A. Andrew Memorial Hospital in Tuskegee that evening, and I was given medicine to slow labor. My baby was delivered by Dr. Foster on the next evening, May 19, 1969. The delivery was by Caesarean section. I remember the evening well, but I do not remember all of the specific details. I know that Dr. Foster looked in on me from time to time, but I do not recall exactly what time he looked in or exactly how often he checked on me. I remember that the delivery took place at night, and that I was in surgery for approximately two hours. I recall specifically that part of the procedure was at 7:00. I recall that I was very nervous and I was hyperventilating. I was doing breathing exercises and I tried to focus on a clock at 7:00 p.m. I remember that the anesthesiologist was trying to calm me at the time, and that Dr. Foster joined and helped to calm me. I recall that all of this was before Dr. Foster started to operate, but I do not recall more specifically at what point this was in the procedure. I understand that the medical record indicates that the delivery took place at 9:17 p.m., and I do not dispute that record. I also remember well what fine care Dr. Foster gave to me and my son. I remember that throughout a difficult time for me Dr. Foster was warm and attentive. I had been told by another obstetrician that I could never have a child. Dr. Foster told me that he would work with me and do everything humanly possible to make sure I could have a child, and he did. He was a very busy man with many patients, but he always took time and was always there to help. He was always very human and very professional. He is a fine man and will make a fine Surgeon General. Signed: Minnie Capleton Jamison. Date: 4/28/95.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, I believe this has been cleared by both sides. This deals with amendment 1367, which I previously sent to the desk. This deals primarily with a rule, in urban areas, where there is a small town that has a limited number within the incorporated area or the urbanized area, and has a high percentage of customers in rural areas. It is a unique situation in regard to cable systems that have gone out beyond the incorporated limits, and they have sold to customers there. That is a pretty expensive type of thing. When they go out, there is not the density on the lines that you have in the city. In rural areas, you might have one customer per mile, and in the cities you may have 1,200 customers to a mile, or 1,000 customers to a mile. This sort of takes care of a situation for rural areas. It affects those where I believe there are no more than 20,000 subscribers, and a high percentage is in urban areas. I move the adoption of this amendment. Cable systems with less than 20,000 subscribers are extremely concerned that they will be unable to compete with the telephone companies once they enter the cable business, a very legitimate concern. Because of the very real possibility that they will be run over by their local telephone company if the only option is to compete head-to-head, small cable systems would like to have the option to form a joint venture with their local telephone company or to be acquired by their local telephone company. The bill as it is currently written would disallow small cable systems in urbanized areas to form joint ventures or to be acquired by their local telephone company. Due to the broad definition of an urbanized area, many small cable systems serving very rural areas will be ineligible to form a joint venture or to be acquired by their local telephone company because they technically fall within the definition of an urbanized area. My amendment would allow cable systems in an urbanized area that serve a significant number of subscribers in nonurbanized areas to be eligible to participate in joint ventures or to be acquired. These small cable operators serving a significant number of rural subscribers but who are swept into the urbanized area definition should be given the option of forming joint ventures or of selling to their local telephone company. Without these options, S. 652 could well force many of them out of business.

Mr. HEFLIN. I move to reconsider the vote.

Mr. HEFLIN

Mr. HEFLIN. Mr. President, I rise to make a comment relative to the amendment I successfully offered earlier today to the provision of the bill addressing cable-telephone company mergers and alliances. I understand that some concern has been expressed that the effect of the amendment may be broader than intended. I do not intent that this amendment have broad effect or undo the carefully crafted buyout limitations agreed to previously. I look forward to working with the managers and conferees as we move forward to make any language changes necessary to ensure that the amendment has only the narrow effects intended. fees in lieu of franchise fees

Mr. HEFLIN

Mr. HEFLIN. Madam President, I send an amendment to the desk and ask for its immediate consideration.

Mr. HEFLIN. Madam President, I ask unanimous consent that reading of the amendment be dispensed with.