Fritz Hollings

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, Winston Churchill observed that the ``Balkans have produced more history than we can absorb locally.'' With that in mind, let's realize certain history necessary to judgment. This was a civil war in a sovereign country. Last Spring it was escalating. The shooting of a Serb policeman on the corner and the resulting burning of Albanian homes on the block had mushroomed to three thousand KLA fighting for independence versus ten thousand Serbian troops massing on the Kosovo border. By Fall it had grown to ten thousand KLA versus forty thousand Serbs. In walks Secretary of State Madeleine Albright in Rambouillet, announcing to Milosevic and the Kosovars that killing would have to stop; that there be a cooling off period for three years, then one man one vote. The intent was noble--to defend human rights. The dreadful massacre at the hands of the Serbs was met with equally savage conduct by the Albanians. The agreement instrument was intentionally vague to be interpreted by the Kosovars as a vote for independence. The important thing to remember is that Serbia-Montenegro is a sovereign country. Milosevic was selected as its head by its Parliament. In this civil war there was no good side. Today in total war there is no good side. Another important point is that the proposed agreement was a non- starter--Milosevic could not agree any more to relinquishing Kosovo than Lincoln could the South--a so called free election in three years was a given in an area ninety percent Albanian and ten percent Serb. According to the Carter Center in Atlanta there are twenty-two wars the world around--all civil. And over half more violent than Kosovo. The United States is a world power. To continue as a world power with sufficient credibility to extend our influence for freedom and individual rights we cannot venture into every human rights conflict. The American people will not support it--as evidenced by the vote in the Congress. And living in the real world we need to husband our integrity for the world concerns of Russia and its missiles, North Korea, peace in the Middle East and the like. There is no national security threat to the United States in Kosovo. We have yet to have a national debate to determine that GIs are to be sacrificed for human rights. The demand that Milosevic agree or be bombed into agreement was diplomacy at its worst. The Congress, the country and most of all the military were totally unprepared to pursue this threat. More importantly, as I learned in the artillery no matter how good the aim if the recoil is going to kill the gun crew, don't fire! The following is the recoil: (A) A civil war has turned into one of national defense for Milosevic. When the U.S. went to national defense upon the attack on Pearl Harbor, the first order of business was to clear the west coast of all who were thought to be the enemy or sympathetic to the enemy. Over 110,000 Nisei, sixty-four percent of whom were U.S. citizens, were forced from their homes into internment camps. When NATO attacked, Milosevic's ethnic cleansing became enemy cleansing; 700,000 in three weeks. Milosevic never would have attempted this on his own save the NATO attack on his country. We have made Milosevic popular in his country. (B) Unprepared to pursue a ground war, NATO has strengthened Milosevic's military control of Kosovo. (C) In contrast, the KLA assumes NATO has taken its side in the civil war and now will want revenge no matter what happens. We have ignited further the historic flames of enmity. (D) With no national security interest at stake, the overwhelming air invasion of the U.S. into a small European country appears arrogant and threatening to much of Europe. Russia, no longer a strategic threat in Europe, is now being revitalized into a strategic threat. (E) A country half the size of South Carolina with half the population is being hit with forty bombardments a day. Like Viet Nam, we are destroying it in order to save it. It appears to me the recoil is killing the gun crew. Once again we are told that bombing will soon cause the people of Serbia-Montenegro to arise and throw the rascals out. In 1944 while preparing to cross the Rhine I heard this about Hitler; then in Viet Nam about Ho Chi Min; then for the past seven years about Saddam. When will the State Department learn? When will we all learn that there is no ``win'' in Kosovo? At the moment we are not only losing the war, we are losing our integrity as a world power. This mistake must be brought to a close. While under orders, we all support our troops. But this is not the issue before us. Unfortunately, the policy in Kosovo is a split decision between the House and the Senate. We still debate to determine that policy. This is sad, but it's the reality. Under no circumstance should we sacrifice a single GI for this mistake and indecision. I shall vote to table.

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, with our trade deficit continuing to grow and with Japanese vehicle manufacturers continuing to increase exports to the United States, I rise to remind my colleagues that competitive U.S. companies continue to be thwarted in their efforts to break down the walls of ``kereitsu'' relationships built up over decades in Japan. With Prime Minister Obuchi making his first official state visit to the United States, I thought it useful to review our economic relationship, or lack thereof. As my colleagues know, the Japanese economy has been in a recession for quite some time. Unfortunately, it would appear the country has sought to export its way out of the problem and to continue to shield inefficient domestic companies from international competition. For instance, just last week the Commerce Department determined that Japanese steel imports were being dumped by margins of up to nearly 70%. Such actions are not acceptable. As the office of USTR recently said, [A]s its demand for imports declines and its firms redouble their efforts to sell to healthier markets abroad, the effects of Japan's economic policies will continue to hit the United States. In 1998, the U.S. goods trade deficit with Japan reached $64.1 billion, an increase of $8.4 billion (14.2 percent) from the 1997 level. . . . U.S. merchandise exports to Japan fell to $57.9 billion, a decrease of 11.9 percent from the 1997 level. . . . Japan is more dependent on the U.S. market to absorb its exports than it has been for many years. In 1998, the United States bought about 31 percent of Japan's exports, the highest level since 1990, and close to the all-time high of 36 percent in 1986. It will come as little surprise to Senators who are concerned about our steel industry and other sectors that Japan accounted for approximately one-fourth of our entire trade deficit in 1998. It is a mistake to suppose that such huge amounts of money can continue indefinitely to move one way across the exchange with reciprocal movement in the other direction blocked. In view of this situation, the USTR said in its report: ``The United States attaches top priority to opening Japan's markets to U.S. goods and services.'' I trust the President will share our government's concerns in his meeting with Prime Minister Obuchi, and will urge him to take steps to increase U.S. access to the Japanese market. I also believe Japan can, and should, take additional steps to increase its defense sharing burden. Let me give one example. In the early 1990s, Congress and the Department of Defense recognized that more needed to be done to augment our strategic sealift capacity. Our experience in Desert Storm demonstrated a critical shortage of U.S.- flagged, U.S.-manned roll-on roll-off strategic sealift vessels. We therefore undertook new construction of a fleet of military ships of this type. Even with this new construction, however, there will continue to be a deficiency of lifting capacity. To meet this deficiency, under the leadership of then-Senator Bill Cohen, Congress created the National Defense Features program. Under the program, U.S. companies have been invited to build vessels equipped with special military features for operation in normal commercial service but available in times of national emergency. Under one proposal, a fleet of refrigerated car carriers would be built in the United States for operation in the U.S.-Japan trade. In normal commercial service, the vessels would carry vehicles to the United States and refrigerated products to Japan. In times of national emergency, the vessels would carry tanks, heavy trucks, and other military equipment, as well as substantial amounts of live ammunition. Unfortunately, notwithstanding support from the Congress and the Secretary of Defense, the project has met with no interest or actual resistance in Japan. This is particularly disturbing because implementation of the project would, at no economic cost to the Government of Japan, enhance the mutual security of our two nations. Especially at a time when the Government of Japan wishes to play a greater role in advancing shared defense objectives, I am disappointed that it has not given more serious attention to this proposal. I hope the Administration will continue to press the Government of Japan to take steps to reduce our trade deficit and enhance our mutual security. I also hope the Government of Japan will use the occasion of the Prime Minister's state visit to make further commitments to doing so.

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, I rise to bring to your attention an issue of great national concern. We all remember the great debate that this chamber had last year during reauthorization of the federal highway bill, TEA-21. We all negotiated to get more funds for our states because we know that more investment in our highways means better, safer, and more efficient transportation for those who rely on roads for making deliveries, going to work or school, or just doing the grocery shopping. Transportation is the lynchpin for economic development, and those states that have good, efficient transportation systems attract business development, ultimately raising standards of living. However, I think that we may have gone too far in authorizing states additional means to raise revenue for highway improvements. These means to raise revenue are not productive and hurt our system of transportation. Specifically, I am concerned that states have too much flexibility to establish tolls on our Interstate highway system. For many states, the large increases in TEA-21 funding have satisfied the need to invest in infrastructure. Other states have found that they need to raise more money, and so they have raised their state fuel taxes or taken other actions to raise the needed revenue. These increases may be difficult to implement politically, because frankly most people don't support any tax increase. However, I believe that highway tolls are a non- productive and overly intrusive means of raising revenue causing more harm to commerce than can be justified. Congress, mistakenly in my opinion, increased the authority of states to put tolls on their Interstate highways in TEA-21. I am introducing the Interstate Tolls Relief Act of 1999 to restrict Interstate toll authority. The debate over highway tolls goes back to the genesis of our Republic, and contributed to our movement away from the Articles of Confederation to a more uniform system of governance under the U.S. Constitution. Toll roads were the bane of commerce, in the early years of the Republic, as each state would attempt to toll the interstate traveling public to finance state public improvements. Ultimately, frustration with delay and uneven costs helped contribute to the adoption of Commerce Clause powers to help facilitate interstate and foreign trade. Those same concerns hold true today, and I think that we in Congress must take a national perspective and promote interstate commerce. I think that if one were to ask the citizens of the United States about tolls, they would ultimately conclude that Interstate tolls would reduce the efficiency of our Interstate highways, increase shipping costs, and make interstate travel more expensive and less convenient. Not to mention the safety problems associated with erecting toll booths and operating them to collect revenues. Now, I recognize that tolls under certain circumstances may be a good idea, and my bill does not prevent states from tolling non-Interstate highways. My bill also does not affect tolls on highways where they are already in use, and states will continue to be able to rely on existing tolls for revenues. Furthermore, my bill recognizes that when funds must be found for a major Interstate bridge or tunnel project, states may have no other option but to use tolls to finance the project. They may continue to do so under my bill. I believe this is consistent with the original intent of authority granted for Interstate tolls. What my bill does is to prevent the proliferation of Interstate tolls, and restrict tolling authority for major bridges and tunnels. Mr. President, this bill is essential if we are to continue to have an Interstate Highway System that is safe and facilitates the efficient movement of Interstate commerce and personal travel. I urge the support of my colleagues. I ask unanimous consent that the full text of the bill be printed in the Record.

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, I rise to bring to your attention an issue of great national concern. We all remember the great debate that this chamber had last year during reauthorization of the federal highway bill, TEA-21. We all negotiated to get more funds for our states because we know that more investment in our highways means better, safer, and more efficient transportation for those who rely on roads for making deliveries, going to work or school, or just doing the grocery shopping. Transportation is the lynchpin for economic development, and those states that have good, efficient transportation systems attract business development, ultimately raising standards of living. However, I think that we may have gone too far in authorizing states additional means to raise revenue for highway improvements. These means to raise revenue are not productive and hurt our system of transportation. Specifically, I am concerned that states have too much flexibility to establish tolls on our Interstate highway system. For many states, the large increases in TEA-21 funding have satisfied the need to invest in infrastructure. Other states have found that they need to raise more money, and so they have raised their state fuel taxes or taken other actions to raise the needed revenue. These increases may be difficult to implement politically, because frankly most people don't support any tax increase. However, I believe that highway tolls are a non- productive and overly intrusive means of raising revenue causing more harm to commerce than can be justified. Congress, mistakenly in my opinion, increased the authority of states to put tolls on their Interstate highways in TEA-21. I am introducing the Interstate Tolls Relief Act of 1999 to restrict Interstate toll authority. The debate over highway tolls goes back to the genesis of our Republic, and contributed to our movement away from the Articles of Confederation to a more uniform system of governance under the U.S. Constitution. Toll roads were the bane of commerce, in the early years of the Republic, as each state would attempt to toll the interstate traveling public to finance state public improvements. Ultimately, frustration with delay and uneven costs helped contribute to the adoption of Commerce Clause powers to help facilitate interstate and foreign trade. Those same concerns hold true today, and I think that we in Congress must take a national perspective and promote interstate commerce. I think that if one were to ask the citizens of the United States about tolls, they would ultimately conclude that Interstate tolls would reduce the efficiency of our Interstate highways, increase shipping costs, and make interstate travel more expensive and less convenient. Not to mention the safety problems associated with erecting toll booths and operating them to collect revenues. Now, I recognize that tolls under certain circumstances may be a good idea, and my bill does not prevent states from tolling non-Interstate highways. My bill also does not affect tolls on highways where they are already in use, and states will continue to be able to rely on existing tolls for revenues. Furthermore, my bill recognizes that when funds must be found for a major Interstate bridge or tunnel project, states may have no other option but to use tolls to finance the project. They may continue to do so under my bill. I believe this is consistent with the original intent of authority granted for Interstate tolls. What my bill does is to prevent the proliferation of Interstate tolls, and restrict tolling authority for major bridges and tunnels. Mr. President, this bill is essential if we are to continue to have an Interstate Highway System that is safe and facilitates the efficient movement of Interstate commerce and personal travel. I urge the support of my colleagues. I ask unanimous consent that the full text of the bill be printed in the Record.

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, let me thank the distinguished Senator from Texas. She is right on target. We have graduated over 2,000 agents from the finest school down there for Border Patrol agents. Two who trained there have already been killed. I have visited from time to time. The matter of pay is the issue. We advertise and we solicit in the local area over the entire State--and nationally--and it is a pay problem. I hope we can confront it.

Mr. HOLLINGS. Will the distinguished Senator yield?

Mr. HOLLINGS. I would like to say a word about this particular problem. Is the Senator yielding the floor?

Mr. HOLLINGS. I thank the Senator for the introduction. I ask unanimous consent that I be made a cosponsor.

Mr. HOLLINGS. Mr. President, I rise in support of the Federal Maritime Commission Authorization Act of 1999, which would authorize appropriations for the Federal Maritime Commission (FMC) for fiscal years 2000 and 2001. With the recent passage of the Ocean Shipping Reform Act of 1998 (``OSRA'') the Commission's role in overseeing the ocean transportation industry has changed dramatically and increased in importance. The Commission must have the necessary funding to ensure that Congress' intentions with OSRA are met, and that all segments of the industry are fully protected from potential abuses. I am particularly pleased with the effort made by the Commission to adopt regulations to implement OSRA. OSRA, which was signed into law on October 14, 1998, and will go into effect on May 1, 1999, significantly altered the Commission's primary underlying statute--the Shipping Act of 1984. Nevertheless, the Commission was only given until March 1, 1999, to adopt final regulations to implement the changes made to the Act. The Commission met this deadline while fully complying with all notice and comment requirements of the Administrative Procedure Act. The Commission solicited and received comment from the entire industry and, based on those comments, arrived at final rules that are fully consistent with the Congressional intent. The Commission should be applauded for accomplishing this difficult task in such a timely and responsive manner. I would also note that under OSRA the Commission will continue to exercise its vital role in addressing unfair foreign trade practices under section 19 of the Merchant Marine Act, 1920 and the Foreign Shipping Practices Act of 1988. The Commission has proven time and again--most recently with the Japan port controversy and several restrictive practices in Brazil--that it can effectively address such practices and, if adequately funded, will be able to continue to do its fine job. I am a firm proponent of aggressive policies that promote fair and open trades, and I commend the FMC for their role in opening markets for our ocean carrier and ocean shipper communities. The amounts authorized for the FMC take into account the fact that the Commission will soon be fully staffed with five Commissioners. The President recently nominated a fifth Commissioner and his nomination is pending before the Commerce Committee. The Commission needs full funding to bring the agency up to its full complement of members and to meet its new responsibilities under OSRA.

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, I thank my distinguished friend from Massachusetts. He has summed it up. I will only point out again this morning's news, the Wall Street Journal. I quote from page B4: [By now] the year 2000 bug was supposed to have played havoc with corporate computer spending, with companies supposedly too worried about their mainframes to think of anything else. A cautious attitude about the issue was the theme in comments by big technology companies that released first-quarter results in the past few weeks. But with one notable exception, the technology industry has so far escaped any broad year 2000 slowdown. Mr. President, I ask unanimous consent to print in the Record an editorial from this morning's Washington Post about Y2K liability.

Mr. HOLLINGS. I yield whatever time the Senator needs.

Mr. HOLLINGS. I thank the distinguished Chair. ``Liability legislation for the Y2K problem can await the Y2K.'' What we are talking about is an instrument, a computer. The average cost for a small business and otherwise is $2,000. They are not going to buy a $2,000 instrument in 1999 that is not going to last past January 1. It is quite obvious that it is not the poor, but it is the economically advantaged, the small businesses, and the doctors in America that use this instrument now. And all they have to do is go into Circuit City and say: Now, put it up, let me see that it works, that it is Y2K compliant. Why do away with the entire law system, the 10th amendment to the Constitution, the habitual and constitutional control of torts at the State level under article 10 over the 200 years of history? Do you know why? Because they put in this amendment to amendment to amendment. When they put in the first one, even chambers of commerce objected to it. What you had in the McCain bill was still a bad bill. The McCain-Wyden bill is still a bad bill. The McCain-Wyden amendment to the McCain- Wyden amendment is still bad, as evidenced by this editorial here this morning. Again, Mr. President, I ask unanimous consent to have printed in the Record a letter from Kaiser Permanente Executive Offices, dated April 27.

Mr. HOLLINGS. Quoting from the letter: In brief, S. 96 [as currently drafted] threatens the ability of the health care industry to maintain rates; severely limits the rights of small businesses, consumers and non-profit organizations like ours to recover the often excessive costs of Y2K fixes, purchases and upgrades; unfairly prejudices (or completely bars) the ability of the health care community to recover the costs associated with any personal injury or wrongful death award from the entity primarily at fault for the defect that caused the injury. S. 96 permits the manufacturers, vendors and sellers of non- compliant Y2K equipment and products to profit at the expense of their customers and leaves the health care industry (and ultimately our employer groups and patients) responsible to bear the costs of their negligence. Mr. President, I could read on and on, but when different industries--the automobile industry, the grocer industry, and otherwise--come to the attention of this 36-page document to change around the 200-year experience of the enforcement of torts, the Uniform Commercial Code nationally, and do away with it and the so-called privilege it required. To come in here and cap punitive damages, describe a small business as any 50 or less--I notice in this most recent amendment, Mr. President, on page 2, a defendant is described as an unincorporated business, a partnership, corporation, association, or organization with fewer than 50 full-time employees. It used to be smaller, 25. But they are going in the wrong direction, all with this so reasonable, so bipartisan, so studied, so compromising, so interested--come on. Give me a break. Look at the next sentence: ``No cap with injury specifically intended.'' Paragraph 1 does not apply if the plaintiff establishes by clear and convincing evidence that the defendant acted with specific intent to injure the plaintiff. So there go the class actions. Each plaintiff has got to come in and prove by clear and convincing, not by the greater weight of the preponderance of evidence, but by clear and convincing, that it is specifically intended for that particular plaintiff to be injured. Mr. President, what we really have is a fixed jury. We could talk sense, but I notice in the morning paper that Kenneth Starr, the independent prosecutor, is asking the judge down there in Arkansas to go and interview the jurors after the verdict. He ought to come to Washington where they interview the jurors before the verdict. That is my problem on the floor of the Senate here this morning; I can tell you that right now. They run around this Chamber, the Chamber of Commerce is in here, the Business Roundtable, this conference board, get all those organizations going. I am tending to my business down home. And you are for tort reform. You know this Y2K liability, $1 trillion for the trial lawyers and all that. Yes, I am against that. I am against a trillion dollars for the trial lawyers. Everybody says that, running for office. Sure, the idea of tort reform. So they have Kosovo, they have the balanced budget, and the lockbox charade going on, and right in the middle of this they come with all the fixed votes, the jurors, before we even get to debate and show that there is a nonproblem. I am getting there. I can see the Parliamentarian blinking his eyes, so I am running out of time here. We are going to have to vote. But here is the biggest fix I have ever seen. We had a difficult time trying to get the truth around to our colleagues about S. 96 here this morning, but I hope we can withhold and get some time to vote against this cloture motion so we will have time to really show what is going on. We have problems in this country, but I can tell Senators, it is not the tort system. It is not how the tort system affects business. Business is going through the roof financially in New York. Everybody is making money, particularly in the computer business. Of all the people to ask for special legislation here in the Congress as well as special protections and the revision of all the tort practices, is the computer industry, the richest in the entire world. I appreciate the indulgence of the Chair, and I yield the floor.

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, let me thank the distinguished Senator from Texas. She is right on target. We have graduated over 2,000 agents from the finest school down there for Border Patrol agents. Two who trained there have already been killed. I have visited from time to time. The matter of pay is the issue. We advertise and we solicit in the local area over the entire State--and nationally--and it is a pay problem. I hope we can confront it. Mr. President, I will say a word about the majority leader's rejoinder relative to this legislation. He points out specifically that without litigation, we have time; it gives an avenue, gives 90 days in time, to fix the problem. Mr. President, this Senator knows, rather than fixing the problem, they are trying to fix the defendants and see if, on a cost-benefit basis, they can move the problem out to India or some other supplier that is indigent or bankrupt or otherwise; that is what they do during the 90 days. We do not need in law a 90-day waiting period before you can file. Nobody is filing immediately. Nobody wants to get to court. These businesspeople don't run down and get a lawyer. They do as the doctor did in his testimony before the Commerce Committee: He called and called, and he wasn't called back; then he wrote the letter; he spent $16,000 for a computer, and in a year's time he had to pay $25,000 just to be Y2K compliant. We live in the real world. Why is this gimmick on all legal proceedings all of a sudden given a 90-day extension for fixing the problem? For an individual running a little corner grocery store with a computer that goes down, if they call the company and don't have the money to make it Y2K compliant, in 90 days they are out of business. They are still waiting around while they are maneuvering with their lawyers. These manufacturers who are sued have lawyers on retainer sitting up on the 32nd floor wondering when they can get off to play another golf game or when they can get another continuance. They think about how to stay out of the courtroom and how to get the clock running. It is a bad provision. Let me agree with the distinguished majority leader and say I agree that no bill is needed. We find out after all of the debate, here comes the Washington Post that says, wait a minute, the market is fixing it now. On January 1, if there is a real problem that the States can't handle, there are courts in all the States, and if they can't handle it, we have a national problem, fine. But don't use Y2K as an instrument to distort the tort system and get through what they haven't been able to get through for the past 20 years. I yield the floor.

Mr. HOLLINGS. Mr. President, the distinguished majority leader alluded to the fact that he had relatives that were trial lawyers. That puts me in the position of qualifying to even speak. Let me first say that I am proud to be a trial lawyer. No trial lawyer has called me or talked to me about this bill. They don't need to. They know and understand. Now, what happens is, when you grow up in a small town, you get a varied experience. I am also known as a good business and corporate lawyer. I represented a grocery chain that had 125 Piggly Wiggly stores all over, and we were sued for antitrust. I won that going all the way to the Supreme Court. I know about frivolous suits. I represented the local transit company, the South Carolina Electric and Gas. Every November, somehow everybody slipped down on the bus. They got their arm caught in the door. They tripped up on the floor. They were small cases, but the attorneys who preceded me handling them didn't want to try them. It is Christmastime, New Year's. I backed them all up. We tried them all. We won them all. I saved that corporation millions of dollars. I am the first southern Governor to get a AAA credit rating from Standard & Poor's and Moody's. I know about business responsibility. Now, we trial lawyers have had the fortune to represent people who have been dying of asbestosis, and then we have the young ladies who had the breast implants, and then moved to the tobacco. But here now for a change it is trial lawyers. We are beginning to get credibility. We are representing small businesses, with $20,000 in their pockets or more. You don't go down and buy a computer for $20. And small business people are buying that instrument. I wish they would read Business Week. I wish they would listen to Kaiser Permanente in California, how they are absolutely opposed to this particular bill, and that it would hurt the health industry. I wish they would read the record whereby the individual doctor came from New Jersey. He said he had--I can't remember the exact name so I don't want to refer to it incorrectly--a supplier. He bought the computer in 1996, and the salesman bragged about how it was going to be Y2K compliant. It would last for over 10 years and on and on. And then he found out last year that it wasn't compliant. You see, you don't have to wait until January 1. This is an important point for the Senate to understand. You don't have to wait for January 1. This is all political applesauce. You don't have to wait until January 1, when you go in and buy a computer, and everybody who reads the newspaper and anybody with $20,000 in their pocket knows now the Y2K problem. He asked that it be fixed, and they did not even answer when he called a couple of times. Then he wrote a letter. And after a couple of months passed, he decided that he had to get a lawyer. He was told that it would be $25,000. Now, mind you me, he only paid $16,000 for the computer, but it would be $25,000 to make it Y2K compliant. So as a result, they brought the suit, and somehow it got on the Internet. The next thing you know, this particular supplier had 17,000 doctors similarly situated. And immediately the supplier said, oh, yes, we will fix it for free and even pay the lawyers' fees to get out of this thing. But that is the cost/benefit of some of these businesses. We have been into this tort thing. We have the Uniform Commercial Code. We have the States. No State attorney general is running around saying we need a national approach and to do away with 200 years of history of the Constitution under the 10th amendment, and tort law and all the trial codes of America. The State of Colorado has a good bill, not like this incidentally, which brings me to the real point about negotiating. The crowd that says this is nonnegotiable has been running around trying to pick up votes. That is what the negotiation has been about. I just read the amendment to the amendment to the amendment. When it first started, even chambers of commerce said, this is too violating and we are not going to get away with this. They actually opposed the bill when it was first introduced. Then they got this McCain bill. Then they got the McCain-Wyden bill. Then they got the amendment, and now we have the amendment to the amendment. It showed how objectionable it was. It is tricky. They are still plying downtown. Tom Donahue has been out in the hall saying what we will go with. This is a political exercise. There is not a national need for Y2K legislation, as the Washington Post just this morning said. The communities know and understand. This is certainly not a conservative newspaper. I have introduced it. ``Liability legislation for the Y2K problem can await the Y2K.'' But it is a political problem, if you can identify with Silicon Valley and get their money and get their votes. They collected 14 million last night and they have to perform. The rich expect a fight, and you have to show you are fighting. You don't care about Y2K and the person buying a computer and everything else of that kind. It is taken care of; it is a nonproblem. Read Business Week, March 1 issue. All the blue chip corporations of America have notified their suppliers to be compliant by the end of April, this year, 7, 8 months ahead of time. So we are talking about a problem that is a nonproblem. It is certainly not a Federal problem, but it is a national political problem between the parties. Yes, some on this side think they can get in bed with the Silicon Valley boys who want a capital gains tax cut. They want estate tax cuts. We have heard it. The bills are running all around. That is the crowd that is shoving them. If we can just give them a little bit, I can go out and get a fund-raiser. That is what is going on. When you refer to the trial lawyers, we trial lawyers are finally getting a little credibility. We are representing good, responsible, financially solvent clients, not an injured party who is hurt from smoking or from a breast implant or dying from asbestosis and doesn't have any money, and can hardly pay the doctor, much less the lawyer. How are they going to get into court? Like I am committing some civic offense by representing them--Mr. President, I do not get a dime unless I win. What does winning mean? Winning means drawing the pleadings and negotiating, because I know you don't make money in court. But, by gosh, you might have to go to court. And then you have to get the jurors. Then they will think of other things to get up on appeal. And I have to go all the way and pay all the expenses--investigation, court expenses, and everything else. That is the contingent fee process, so the indigent poor in this America can get their day in court. It has worked for 200 years. It is not the crowd where we have former Senators still indebted, having been investigated, $450 an hour, sitting down with the mahogany walls and the blooming Oriental rugs. I want a continuance. I want a continuance. No trial lawyer is frivolous. He doesn't want a continuance. He has to move it along. Like Senator McCain says, ``Let's move it along.'' The trial lawyers are a move-along crowd. But when they see a fixed jury, then they say, wait, lets stop, look, and listen. I earlier remarked on something here. Kenneth Starr is in the morning news trying to interview the jury after the verdict. We understand, from this particular charade, that you have to interview the jury before the verdict, because we are the jury and they are running around with all of these entities. I can't do it. The Chamber of Commerce, the Business Roundtable, NFIB--they are all running around--are you for tort reform? I am for tort reform. We have had it in South Carolina. It is a good bill. It practices there. I get in all the industries, and no businessman in my backyard is complaining. I have the best of the best. Give me the blue chips. I have GE, Westinghouse, BMW, Hoffman-LaRoche. Give me the best of the best. I went out to Bosch not long ago. They make the antilock brakes for Mercedes and Toyota, and they have a contract for all GM. I asked the gentleman who was briefing us, ``What about product liability on defective antilock brakes?'' He said, ``No, every one of these is numbered. We would know immediately where it went wrong.'' That is what trial lawyers have caused. They have caused the utmost care in production. You have quality care and you ought to be proud of it. That is how you get productive --not on a State tax cut or a capital gains tax cut. Let the trial lawyers show you the way for quality production. We get on them when they give you a bad article. That is what we argued about here when they referred to the trial lawyers as if there is something wrong with them. I am proud that we can be able to represent people with money for a change. So I am ready to stay here and object. If there were some negotiations, it would be better while we move on some other legislation. They need to get a reasonable bill that doesn't change all the tort law or joint and several and these other things they have in there, where you just sue them and they say, ``That part was made in India, so go out to New Delhi and see if you can find them''--come on. No small businessman or doctor has the wherewithal to do that. They have no recourse. They are trying to take away individual rights on a political bum's rush. I yield the floor. Mr. LOTT addressed the Chair.

Mr. HOLLINGS. Most respectfully, I object.

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, I rise in support of the Federal Maritime Commission Authorization Act of 1999, which would authorize appropriations for the Federal Maritime Commission (FMC) for fiscal years 2000 and 2001. With the recent passage of the Ocean Shipping Reform Act of 1998 (``OSRA'') the Commission's role in overseeing the ocean transportation industry has changed dramatically and increased in importance. The Commission must have the necessary funding to ensure that Congress' intentions with OSRA are met, and that all segments of the industry are fully protected from potential abuses. I am particularly pleased with the effort made by the Commission to adopt regulations to implement OSRA. OSRA, which was signed into law on October 14, 1998, and will go into effect on May 1, 1999, significantly altered the Commission's primary underlying statute--the Shipping Act of 1984. Nevertheless, the Commission was only given until March 1, 1999, to adopt final regulations to implement the changes made to the Act. The Commission met this deadline while fully complying with all notice and comment requirements of the Administrative Procedure Act. The Commission solicited and received comment from the entire industry and, based on those comments, arrived at final rules that are fully consistent with the Congressional intent. The Commission should be applauded for accomplishing this difficult task in such a timely and responsive manner. I would also note that under OSRA the Commission will continue to exercise its vital role in addressing unfair foreign trade practices under section 19 of the Merchant Marine Act, 1920 and the Foreign Shipping Practices Act of 1988. The Commission has proven time and again--most recently with the Japan port controversy and several restrictive practices in Brazil--that it can effectively address such practices and, if adequately funded, will be able to continue to do its fine job. I am a firm proponent of aggressive policies that promote fair and open trades, and I commend the FMC for their role in opening markets for our ocean carrier and ocean shipper communities. The amounts authorized for the FMC take into account the fact that the Commission will soon be fully staffed with five Commissioners. The President recently nominated a fifth Commissioner and his nomination is pending before the Commerce Committee. The Commission needs full funding to bring the agency up to its full complement of members and to meet its new responsibilities under OSRA.

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, let me thank the distinguished Senator from Texas. She is right on target. We have graduated over 2,000 agents from the finest school down there for Border Patrol agents. Two who trained there have already been killed. I have visited from time to time. The matter of pay is the issue. We advertise and we solicit in the local area over the entire State--and nationally--and it is a pay problem. I hope we can confront it.

Mr. HOLLINGS. Will the distinguished Senator yield?

Mr. HOLLINGS. I thank the Senator for the introduction. I ask unanimous consent that I be made a cosponsor.

Mr. HOLLINGS. I would like to say a word about this particular problem. Is the Senator yielding the floor?

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, I offer for the Record the text of a lecture delivered at the Central Surgical Association by Dr. Henry Buchwald, Professor of Surgery at the University of Minnesota. Dr. Buchwald, a past president of the association, is a highly regarded surgeon, and as we address Medicare reform and related matters in the months ahead, I believe we would do well to consider his words. At this time, I ask that excerpts of Dr. Henry Buchwald's presidential address be printed in the Record. The material follows. Presidential Address: A Clash of Cultures--Personal Autonomy Versus Corporate Bondage (By Henry Buchwald, MD) personal autonomy A constellation of principles embody the personality of the surgeon. At its core are the tradition and the ethos of personal autonomy. One of the distinguished past presidents of the Central Surgical Association, Donald Silver, who has been a role model for me, entitled his 1992 presidential address, ``Responsibilities and Rights.'' He allowed very few intrinsic rights to surgeons, but first among the limited prerogatives he granted was autonomy. As surgeons, we tend to be individualists and to espouse individual responsibility. To us, maturity means being responsible for our actions. We keep our commitments. We view fiscal independence as essential. We take pride in earning a living and, should we have a family, in providing for its needs. To give the gift of an education to our children has been integral to our aspirations. The years of medical school, residency, and the post- postgraduate education of clinical practice finally give birth to a surgeon. This individual has acquired a base of knowledge and the insight to apply facts and rational suppositions to the care of patients. This individual has obtained operating room skills secured by observation, trial and error, repetition, and respect for tissues and tissue planes and has learned the art of being gentle with a firm and steady hand. The surgeon has been sobered by death, by bad results, by the frustration of the inadequacies of even the most modern medical advances, and by the vagaries of human nature that obstruct the best of intentions and efforts. The surgeon has acknowledged fallibility and his or her power to do harm. The surgeon has become comfortable in a profession in which decisions are singular and responsibility is particular. The mature surgeon has achieved personal autonomy. Within our company of surgeons we take just pride in our accomplishments. We are a distinct discipline with a unique body of knowledge. We are, for the most part, successful. We save lives, we increase life expectancy, we enhance the quality of existence. In addition, we have provided society with numerous competent surgical practitioners and built dynasties of surgical educators and researchers--individuals who bridge the present with the future of our profession. Unfortunately, this golden age for surgery and the personal autonomy of the individual surgeon are threatened with imminent destruction by a force that will, if not countered and checked, lead us into corporate bondage. I will term this force administocracy. corporate bondage Ideally, the role of health care administration is to facilitate the work of physicians and health care personnel. But the chief administrators in our health care institutions and universities are no longer facilitators. They now seek to control. They have been redefining medical practice, clinics, academic departments, and universities on a corporate model, a model that subverts the essential nature of an intellectual society, a model totally alien to the definition of a university as a community. Administrocracy, the term I have coined to epitomize this force, is the rule of centralized administration, based on the top-down control of money, resources, and opportunities. Its primary beneficiaries are the administrative hierarchy. Administocracy has established itself as a new ruling class, an order clearly separated from the toilers in the vineyard of medicine. Administocracy is governance not by facilitation but by intimidation. Administocracy has gained or is gaining control of our medical schools, our teaching and community hospitals, and our current means of providing health care. I will outline administocracy's practices, codified into its own perverted Ten Commandments. I: Thou shalt have no other system. The glory of our nation's democracy, the longest surviving democracy in the history of the world, is its ability to tolerate differences--to take new initiatives and then to retrench, to be liberal and to be conservative--and, concurrently, to be responsible to the will of the governed and to the precepts of fundamental code of principles and individual rights. An autocracy, on the other hand, denies flexibility and governance alternatives. An autocracy's overriding objective and only goal, regardless of any protestations of working for the common good, is its own perpetuation. By definition, such a system denies the will of the governed and refuses recognition of individual rights. Administocracy is, of course, an autocracy. Once in power, administocracy's first order of business is to replicate itself. For example, in 1993 the academic administocracy at the University of Minnesota cut 435 civil service positions, while simultaneously adding 45 more executives and administrators.\1\ The Office of the Senior Vice President for Health Sciences at Minnesota, a unit that did not even exist some years ago, now has 25 members. The growth of medical administocracy is the result of genuine problems in the distribution of health care, including cost problems not adequately addressed by the medical profession itself. Our failure, or inability, to take action on these issues has allowed outsiders and opportunists within our own profession to hijack the delivery of health care. Among practicing physicians, a general ennui and a lack of resistance have been the reactions to the administocracies that are becoming our overlords. Perhaps one reason for this seeming complacency is that, individually, physicians feel powerless when faced with the well-organized, implacable machine of administocracy--an entity that knows its purpose and will use any means to attain its goals. Another reason is well expressed by Thurber's paraphrase of Lincoln: ``You can fool too many of the people too much of the time.''\2\ II: Thou shalt make new images. In his classic novel 1984, Orwell beautifully illustrated the power of language and its willful distortion by governments. His use of ostensibly neutral words for disguising uncomforting realities set the standards for the current proliferation of Orwell's ``Newspeak.'' \3\ The medical and academic administocracies of today have devised their own Orwellian glossary of deception, often borrowing and redefining phrases from corporate industry and the military. CEO, for chief executive officer, obviously comes from the corporate world. In academia and in hospital administration, it means a titular despot who controls the destiny and income of faculty and staff. Reporting to and chain of command come from the military. These designations of caste and of obedience have not only been fully accepted by members of our profession but actually embraced and fostered by certain of our colleagues. Executive management group means a cluster of deans. Managed care is a euphemism for reducing patient services and physicians' fees to redistribute income to the ever- increasing number of administrators. Utilization review stands for a bureaucratic sleight of hand to justify a predetermined reduction in patient services and health care personnel. Market and consumer mean patient. Market share means the number of patients you can hold hostage in a provider network. Health care team means that the physician is only as essential to patient care as the multitude of people who stare into computers on nursing stations. Vendor means you, the doctor. II: Thou shalt take what is in vain: reengineer. Reengineering is the golden calf of administrocracy and takes in vain much of what we hold sacred. Reengineering would substitute dicta for scientific inquiry, the ``clean sheet'' for methodology, and assumptions for acquired knowledge. Reengineering has never been critically tested, certainly not in academia and hospital administration. No randomized clinical trials of reengineering have ever been conducted. The definitions of reengineering are all quite similar. Michael Hammer and James Champy, two of the principal writers and consultants in the field, define it as follows: ``the fundamental rethinking and radical redesign of business processes, management systems, and structures of the business to achieve dramatic improvements in critical, contemporary measures of performance such as cost, quality service, and speed.'' \4\ The stages of reengineering are usually listed by its author advocates as preparing for change, planning for change, designing for change, implementing change, and evaluating change. Obviously, ``change'' is the key message, often spoken of as ``swift and radical change.'' Initiates to reengineering are instructed that it is essential to start this swift and radical change with the proverbial ``blank sheet of paper.'' Besides the logical fallacy of changing that which is blank, the sheet of paper is not blank; it contains our heritage. To start with a blank sheet means to erase the past. This concept of eliminating what we have painstakingly learned denies the most fundamental precept that we, as teachers, have passed on to generations of our students; namely, know the past and build on it. That way offers progress. Paul's First Epistle to the Thessalonians (5:21) states ``Prove all things; hold fast that which is good.'' If we do not learn from experience, from accumulated data and analyses, we will continually repeat history, and often bad history. Reengineering is a denial of the methodology of learned skills to deal with the business at hand, a denial of accumulated knowledge, a denial of the wisdom based on that knowledge. It is an abrogation of the scientific method. In too much of the corporate-industrial world, reengineering has been the death blow to the company as family, a place to work with pride until retirement. In its place, reengineering has imposed the lean and mean corporate model of harsh downsizing--an organization devoid of workers' loyalty; characterized by a disregard for the customer in favor of the stockholder, plagued with a heavy load of debt, and ripe for a merger, conglomerate integration, and, eventually, extinction. But enlightened industry has been abandoning reengineering, and the gurus of this nonsense have found it profitable to shift their expensive consultative services to academia and health care. Many of our associates have bitten hard into this apple of poisoned knowledge: Harvard, Tufts, Columbia, Cornell, Stanford, the University of California-San Francisco, Michigan, Henry Ford, and Minnesota are just some of the great institutions that have, to one degree or another, adopted reengineering. Physician-administrators, with little or no experience in the business world, are pushing hard to sell reengineering as a panacea for success and good fortune in the health sciences and in health care. They are huckstering a placebo. The former provost of the University of Minnesota Academic Health Center and current president of Johns Hopkins, Dr. William R. Brody, brought the aforementioned James Champy to a University of Minnesota ``leadership retreat'' in July of 1995. At that meeting Mr. Champy, was quoted as saying: ``We live in debate . . . but you may have to exercise powers and say sometimes., `The debate is over. This is the way we are going to be.' . . . visions are not built by groups . . . people in organizations want to be told what to do . . . There is a thirst for leadership, for top-down direction.'' \1\ Champy gave this advice pro bono. Eventually, however, his consulting firm, CSC Index, was paid $2.2 million by the University of Minnesota to put his philosophy into practice.\1\ Ever since the Brody mindset took hold of the university's administocracy, I have listened to speech after speech emphasizing that ``everything is on the table'' (freely translated to mean--tell us what you have so that we can take it away from you), and that the ultimate goal of reengineering was the ``reinvention of the academic health center.'' I was also present when straightforward questions about a prospective hospital merger were met with evasion and statements such as ``The negotiations are as yet too delicate to be openly discussed'' and ``I am not at liberty to provide these details.'' Only when the secret discussions had been concluded and the final decisions had already been made were faculty members informed of the swift and radical changes that would forever affect their lives and that these changes were ``non-negotiable.'' IV: Thou shalt keep horizontal integration holy. In the application of reengineering to academia and health care, the basic work unit is achieved by horizontal integration across disciplines. The medical community until recently has been discipline oriented. The change to horizontal integration represents a major paradigm shift. This change means that a patient would proceed not from one physician to other disciplinary specialists, as needed, but would be referred to a disease- or system-complex of physicians. This unit has been designated as a disease-based cluster, also called in various institutions a center, an institute, a service-line unit, and an interdisciplinary service program. The disease- based cluster is an imposition on patient care of management by a standing committee. Contrary to the promises of the administocrats, life within the horizontally integrated unit is far from utopian. Because the income allocated to the unit by the administocrats is distributed by formula to the members of the disease-based cluster, the fewer members in the cluster, the more money for those who are retained. That formula encourages the urge to lighten ship. In this cluster, the members of the group have yielded the control of their practice and of their personal income to the group mentality. The surgeon is an employee of this group of primarily nonsurgeons, a fully salaried employee with few, if any, financial incentives. Further, each cluster decides on the optimal time management for its employees. Economic unit pressure will limit the amount of time allocated for teaching and for research. If you want to teach, you will be told that extensive teaching is a luxury that the unit cannot afford for its surgeons. You will be told to limit your time with medical students and to limit the operating room time you offer residents, because this use of time does not serve the market-driven goals of your new workplace. Time spent in laboratory research by members of a clinical unit, especially the unit's surgeons, will be restricted or disallowed, because it would most assuredly decrease the unit's ability to compete in the clinical marketplace. Although the surgeon is the main stoker of the unit's economic furnace, decisions for the individual surgeon's distribution of time will no longer be at his or her discretion, but rather at the discretion of the economic will of the group. And, because the surgeon must spend an extensive amount of time in the operating room, the director of this disease-based cluster will, more than likely, not be a surgeon. Where are the positive incentives for surgeons in the horizontally integrated unit? We have seen that the incentive is not in money, in teaching, or in research. Is it in the practice of our craft? Even that pleasure may not be allowed. Disease management in the cluster will be by what has been termed clinical pathways. This means surgery by the numbers; every surgeon will do the same procedure for a specific problem, in exactly the same manner, with a prescribed set of instructions for the use of nasogastric tubes, drains, antibiotics, alimentation, and so on. This assembly-line concept of surgery represents the ultimate destruction of the autonomy of the surgeon. What will be left? The negative incentives of job security and the threat of punishment for expressions of individuality. Criteria for employment will be obedience to the group and a proper sense of beholdenness. The emergence of horizontal integration in reengineered institutions is being vigorously proselytized by its advocates. Indeed, several plenary sessions at the 1997 meeting of the American College of Surgeons gave podium time to the leading proponents of horizontal integration, but none to its opponents. A more balanced analysis of this ``brave new world'' is needed. In the words of Aldous Huxley: ``Thought must be divided against itself before it can come to any knowledge of itself.'' \5\ V: Dishonor thy father and thy mother. The professional fathers and mothers of practicing doctors of medicine are the departments of the medical school. For use as surgeons, our professional parent is the department of surgery. Most of us have a strong allegiance to the departments that trained us and to those we now represent. We cite the teachings of our department as a justification for what we do and what we believe. We extol the achievements of the heroes of our department, and we have been known to contest between departments with fierce team loyalties. We tell departmental anecdotes into our dotage. Historically, the strongest medical schools have had the most powerful departments. Feudalism may not have been an intellectual success in the Middle Ages, but it has been the appropriate medical school governance system for our golden age of surgery. The independent department of surgery has, as a rule, been financially sound. It is able, therefore, to provide its faculty, in addition to a clinical practice, research opportunities, as well as the time to teach and to travel. The clinical atmosphere is exciting, allowing faculty to interact with questioning residents, and, through grand rounds and mortality and morbidity conferences, offering the best second opinions available anywhere. Independent departments gave birth to independent individuals, who had the imagination, innovative spirit, incentive, and drive to make surgery in the United States the best and the most envied in the world. Reengineering would have us deny our departments, abandon them as mere relics. We are being told to dishonor our parental heritage and to deprive future generations of its nurturing. Horizontal integration is the death knell of the strong department of surgery as we know it. Independent departments that give rise to individualists are anathema to an administocracy, which would replace departmental parenting with the cloning of conformists. The proponents of radical change are proposing that departments, for now, be maintained only for teaching students and lower levels of residents, and that their income will somehow be supplied by the dean of the medical school, to whom they will be indebted. The department chairs who will head these units will no longer be selected for scholarship, clinical acumen, and research accomplishments, but for administrative experience and political aspirations. As the lowest tier of the administocracy, they will not uphold or defend the department. In the future this system will eliminate clinical departments altogether, including their independent research, and delegate the teaching of the basic's of surgery to other than practicing surgeons. VI: Thou shalt kill tenure. Tenure had its origins in the high Middle Ages and into the Reformation when royal edicts protected the person of the scholar and guaranteed safe passage.\6\ As the university tradition developed on the continent and at Cambridge and Oxford, tenure became more of a fortification against the internal threat of dismissal at the pleasure of the clerical and political appointees who constituted the administration of these universities.\6\ In the 1990s, once again, tenure has become a highly charged controversy emerging from the academic cloister into the everyday world. Tenure is under attack in institutions of higher learning throughout the United States. This foundation of academic freedom, which includes the tenets of due process and freedom of expression, is being challenged as unwieldy and as an impediment to progress in today's fast-moving world and economy. It is seen as a barrier to effective top-down university administration. A lifelong commitment of appointment for faculty is being considered an unreasonable limit to a university's competitiveness. Tenure-track appointments per se are becoming more and more difficult to obtain, and the possibility of abolishing tenure is a current reality. In the field of medicine we have traditionally not been strong advocates of the tenure system. Most surgeons, in and out of academia, have usually thought of tenure as the subterfuge of the weak and unaccomplished, the refuge of idlers and ne'er-do-wells. For my part, however, I am a strong proponent of tenure on principle and from experience. I have seen the University of Minnesota administocracy attempt to kill tenure. I have seen an outside consultant lawyer, hired by the Board of Regents, write a new tenure policy, subsequently put forth by the Board of Regents, that would have seriously restricted many aspects of academic freedom, denied due process, and allowed the disciplining of faculty for not having ``a proper attitude of industry and cooperation.'' I have seen the provost of the Academic Health Center become the leading opponent of tenure at the University of Minnesota and promise the state legislature to destroy tenure in exchange for increased funding for his personal vision of reengineering. That threat to tenure has gone hand in hand with, and has served as the primary impetus for, unionization efforts by faculty, a turning to collective bargaining, the terminal polarization of a university into ``them'' and ``us.'' The union movement has been successful in some institutions and almost successful in others. We must recognize that the alternative before us is not between tenure or no tenure, but between tenure or membership in a trade union. Centuries of reflection, turmoil, and hard-earned victories for freedom of expression within institutions of higher learning are embodied in tenure. That 1000-year-old legacy should not be swept aside by the know-nothing approach of ``reinventing the university.'' In the final analysis, tenure is the only protection that allows university faculty open criticism of the administocracy. Make no mistake about it, without tenure the outspoken individualists in the academic departments of surgery will be among the first to be fired for insubordination, for not having a proper attitude. They will be fired without due process and without the least concern for their productivity, hard work, loyalty, and demonstrable accomplishments. If not for tenure, many of our predecessors would not have survived to found and to sustain the Central Surgical Association. If not for tenure, many of us in this room would not be signing our names as professor of surgery. VII: Thou shalt not commit to more than one career option. Once it was considered laudable in academia to pursue more than one career option--to be a researcher, a teacher, a consultant, as well as a practicing clinician. In the system of administocracy, such pursuits are adulterous, and they are prohibited. William Kelley, the apostle of linear career tracks, has made the laboratory doctors the highest order in the academic departmental hierarchy.\7\ They follow a standard tenure track, spend little time with patients, and obtain their income from grants and from the efforts of their clinical-tract colleagues. Clinicians are confined, in turn, to patient activities, can have no laboratories, and may do only clinical research. Their primary job is to make the money needed by a two-track department. If these clinical doctors cannot keep up with the overall monetary demands, a third and fluid group of physicians, fresh out of residency, may be hired to see patients on a strict salary basis and to generate a sufficient overage of income to maintain the lifestyles of the nonclinicians. Where does the double-threat, triple-threat, or even quadruple-threat academic surgeon of yesterday and today fit into such a system? He or she does not fit. Where is there allowance for the person who has honed his or her clinical judgment and operating room technique to achieve superb clinical outcomes and is also known as an eminent researcher, an outstanding teacher, and, possibly, an administrator- educator in the field of surgery? We may not find such renaissance individuals in the university of the first century of the third millennium. Those who exist today--many of them in this room--are the equivalents of the dinosaur. Honored today for their stature, their breed is destined for extinction. VIII: Thou shalt steal. If the goal of administocracy is power, the means to achieve that goal is the control of money. For most of us, our incomes have been primarily derived from patient care on a fee-for-service basis. In the academic centers we ourselves allocated a percentage of our income to research, to resident education, to travel, and to departmental needs, as well as to paying a tithe to the dean. Currently, we are being forced to acquiesce to a seizure of our income at its source for redistribution outside of our control, consent, and often, knowledge. The imposition of layer upon layer of administrators and managers siphons off money to pay for their income, for the maintenance of their staff, and for the fulfillment of their, not our, aspirations. What finally trickles down to surgeons is a small fraction of the income we generate. In my opinion, this is theft. The proliferation of health care provider organizations has given rise to a boom in building construction and occupancy to provide for the newly created health care managers. CEOs of managed care empires now take home millions of dollars annually. This is not capitalism but the embodiment of the Communist Manifesto: ``From each according to his abilities; to each according to his needs.'' \8\ Apparently, administocrats have the greatest needs. We have seen the advent of a plethora of executives, echelons of supervisors, authorizers of services, accountants, marketing and sales personnel, secretaries, telephone operators, and so on--all to do what we were able to do with a relatively minimal support staff. What feeds these engines of power? Fewer available patient services, less compensation for services, and an unparalleled redistribution of what we, the surgeons, earn. Whereas surgeons have a long and honorable history of providing care free of charge to the needy, the new system, through gatekeepers, restricts care for the needy and, through capitation, provides income to the greedy. IX. Thou shalt bear false witness. The administocracy rewards or punishes faculty members in promotion and tenure proceedings, bestows awards and recognition, and grants institutional honors. The threat and implementation of both false-positive and false-negative witnessing are standard procedures in academic advancement and in the closure of academic careers. In certain institutions this method of control has extended to the misuse of the legal arm of central administration and the subversion of the internal judicial system of the university. Administocrats and their attorneys have made up rules as they go, with no basis for them in institutional regulations, the ``Calvin-ball'' \9\ approach to adjudication. For those who insist on believing that not all individuals in power can be corrupt and that decency at some level must still exist, I cite the words of 17th century aphorist, Jean de La Bruyere: ``Even the best- intentioned of great men need a few scoundrels around them; there are some things that you cannot ask an honest man to do.'' \10\ X: Thou shalt covet. Finally, we come to coveting (Exodus 20:17): ``Thou shalt not covet thy neighbor's house, . . . nor anything that is thy neighbor's.'' The administocracy does indeed covet your ``house,'' because space is power. The personal space that you occupy outisde of the hospital and clinic, your office and your laboratory, is controlled by the administocracy. Allocation decisions are made not to facilitate your work and not as an incentive for productivity, but as a threat to achieve conformity and to guarantee compliance with their policies. When income is limited and proscribed, when the surgeon has become a 100% employee, then space and the use of that space become powerful inducements for faculty recruitment and retention. Space become a means to form a faculty to fit the new corporate mold. More than ever, space becomes a weapon to enforce compliance and to deny personal autonomy. If money and space have been removed from the surgeon's control, how about the control of an individual's research? Here, too, administocracy has moved in. The formerly automatic forwarding of a properly prepared grant application has recently been subjected to additional internal institutional review and the threat of an institutional refusal to forward certain grant applications. This newly assumed institutional power has been termed a violation of academic freedom by a regional president of the American Association of University Professors.\1\ Ongoing grants have been challenged by administocrats, with attempts at mandating personnel changes on a faculty research team. Faculty peer committees to supervise proper contract relations with industry have been disbanded and replaced by an administrator or a group subservient to the administocracy. Autonomy of research has been replaced by research at the pleasure of the administocracy. There is, unfortunately, no limit to coveting. According to Horace: ``The covetous man is ever in want.'' \11\ resolution Although I coined the term administocracy, all else in this version of the Ten Commandments, as perverted by this new corporate bondage, is based on what has happened, is happening, and will happen. For many of us, certain, if not all, of the forces and events outlined are already part of our personal histories. Those fortunate enough to have been spared thus far will not be so favored in the future. I hope no one in this audience suffers from ``mural dyslexia,'' \12\ the inability to read the handwriting on the wall. My intent in this narrative has been to express, in words and by examples, the manifestations of a calamitous reality that is altering the basic fabric of our professional lives, as well as the quality of medical care. We cannot elect simply to observe this transformation. The structures we stand on are disintegrating. If we continue to be complacent, if we do not oppose the powerful economic elements arrayed against us, if we take little interest in understanding the nature of our enemies, then surgery, as a discipline, and we, as surgeons and as independent practitioners, free to act within the boundaries of our conscience, will lose our culture, as well as our personal autonomy. I have tried in these remarks to outline a brief differential diagnosis of this malady of encroaching administoracy, in order that we may formulate practical deterrents. I ask you to consider, each for your own situations, a workable, achievable alternative to administocracy, the forging of an ethical governance for academia, income distribution, and administration by facilitation. All of us need to take an active role in this process of evolution and innovation, to take it now, and to commit to it in the years to come. Further, to maintain the individuality we prize, we have to realize that, individually, we are easy pickings. We must work together, as a community of surgeons, in our academic, cultural, and political organizations to defend our values. Ironic as it may be, we will need to give up some of our precious autonomy to safeguard that very autonomy. In his Republic, Plato expressed the concept of banding together as fundamental to preserving individualty: `` . . . a state comes into existence because no individual is self- sufficient. . . .'' \13\ A satisfactory resolution of this clash of cultures will not be achieved quickly or easily. This contest will not be decided by the sprinters. Victory will belong to the marathoners. Fortunately, surgeons are trained for the long haul. closure I would like to close with one final quotation, four questions of self-examination from the Talmud, which express my personal aspirations: ``Have I lived honorably on a daily basis? Have I raised the next generation? Have I set aside time for study? Have I lived hopefully? \14\ references 1. Robson B. Destroying the university to save the university. Minneapolis: City Pages; April 9, 1997. 2. Thurber J. Fables for our time. New York: Harper & Brothers; 1940. 3. Orwell G. 1984. San Diego: Harcourt Brace Jovanovich; 1982. 4. Hammer M, Champy J. Reengineering the corporation: a manifesto for business revolution. New York: Harper Business; 1993. 5. Huxley A. Do what you will. Garden City (NY): Doubleday, Doran & Company; 1929. 6. Metzger WP. Academic tenure in America: a historical essay. In: Keast WR, Macy JW Jr, editors. Faculty tenure. San Francisco: Jossey-Boss Publishers; 1973. p 93-159. 7. Kelley WN, Stross JK. Faculty tracts and academic success. Ann Intern Med 1992; 116:654-9. 8. Marx K. The German ideology. New York: International Publishers; 1947. 9. Watterson B. Attack of the deranged mutant killer monster snow goons. Kansas City: Andrews and McMeel; 1992. 10. La Bruyere J. Characters. New York: Fertig; 1991. 11. Horace. Epistles book I. II, To Tollius, line 56; 65-8

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, I thank the Chair. There it is, Mr. President. We are trying to mushroom a nonproblem into a crisis with $1 trillion worth of lawsuits all on the political juggernaut of the Chamber of Commerce downtown for greed, and taking away rights to protect the group that is not only protectable--God knows they have the money--but they know it. They can bring in their instrument right now and make it compliant. Those who are purchasing are being told, like that doctor in New Jersey, that it is compliant. But they are being taken advantage of. You find out it is not, and it is not until they have everybody ready to go that, ``Oh, no. We are ready to give you a new computer free.'' Not $25,000, as they charged for months, but they would have to be paid before they get any results. ``We are glad to give you this free, and even to pay your attorney fees.'' Right or wrong? Is this a frivolous lawsuit, some kind of bad back, injured party case coming across trying to go after deep pockets? It is legitimate small businesses that can work right now. They will be like an automobile dealer trying to offload their old year models, with misleading purchases sometimes. But they find out that hasn't paid, so they have gotten very competitive. This market this minute is very, very competitive. Read Business Week. The market is working. But there is a political agenda here on course, not really to look out for the small businessman, but change the rights of the States under the 10th amendment to administer tort cases. Here with the administration, do you see any States coming up and saying that they are totally inadequate, that they can't handle it, that what they really need is the Federal Government to interpose and change the rules of jurisprudence? Does any State come up here? Does any legitimate legal organization come up here? Not at all. I heard what the distinguished Senator from Oregon read about the American Bar Association, but give us hearings before the American Bar and give us the legal folks--they understand law. That is one of the difficulties we have in the Commerce Committee. We don't necessarily have profound legal talent, so they don't want to study it. They look at a business cost-profit standpoint and then it is the bum's rush for S. 96. I am glad the rush now has stopped with the policy of the administration and the recommended veto of S. 96 and the McCain-Wyden amendment. I yield the floor.

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

Mr. HOLLINGS

Mr. HOLLINGS. Right.