Tim Hutchinson

Mr. HUTCHINSON

Mr. HUTCHINSON. Today the Senate will resume consideration of H.R. 4444, the China PNTR legislation. All amendments have been disposed of, and therefore the bill is open for general debate only. Those Senators who are interested in making statements as in morning business are also encouraged to come to the floor during today's session. Mr. President, as previously announced, there will be no votes today or during Monday's session. The first vote of next week will be final passage of the PNTR legislation at 2:15 on Tuesday. I ask unanimous consent Senator Craig be recognized for up to 30 minutes as in morning business at some point today and that on Monday at 2 p.m. the Senate resume consideration of H.R. 4444.

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, I would like to make a few comments on the legislation pending before the Senate on the permanent normal trade relations status for China. As announced, we will be having the final vote on this legislation on Tuesday. We had an extended debate on this issue. I think it has been a healthy debate and a good debate for the American people. As I announced earlier, we have disposed of all amendments. We have had amendments on almost every conceivable subject, everything from the environment to labor issues in China, to abortion issues. Of course, none of those amendments, I think, has received more than 33, 34 votes. It is clear this legislation is going to pass and is going to pass overwhelmingly. Historically, every time there was a vote in the House of Representatives, when I served in the House, and on the occasions in which there were sense of the Senates, I have voted against granting annual most-favored-nation status to China, that which we now call normal trade relations. I want to explain my thinking on this issue. On May 24, 2000, as the House of Representatives approved permanent normal trade relations status for China, Pastor Wang Li Gong celebrated his 34th birthday by sewing footballs in a forced labor camp in Tianjing. His hands are injured, and they bleed every day because of the work. When Pastor Wang is not trying to fulfill high production quotas, he is allowed only a few hours of sleep and many more hours of torture. He has been under administrative detention since last November for the crime of organizing a Christian gathering in his home. But Pastor Wang is not the only target of persecution. In its annual report on human rights, our State Department documents just about every violation of international norms in China. Religious persecution to crackdowns on political dissent, to torture, to forced labor, to trafficking of women and children--it is all happening in China. It is not getting better. At least, if you view it in terms of the last few years, if you go back to the Cultural Revolution, you can find there have been fits and starts of improvement, but as you look at the State Department's reports over the last few years, the situation is not improving. In the area of religious persecution, the State Department, in its Annual Report on International Religious Freedom, notes: The Government's respect for religious freedom deteriorated markedly, especially for the Falun Gong and Tibetan Buddhists, and the Government's repression and abuses continue during the first 6 months of 2000. That is, of course, as far as the report extends, is the first 6 months of this year. Its conclusion is: Respect for religious freedom deteriorated markedly. At the very time the House of Representatives was voting for PNTR, and during the process by which that debate has gone on in the Senate, the conclusion of our own Government is that ``religious freedom has deteriorated markedly.'' The report goes on to note that: The Standing Committee of the National People's Congress adopted a decision to ban ``cults,'' including the Falun Gong and other religious groups. At the time the Chinese People's Congress adopted that law banning religious cults, I expressed concern to my colleagues in the Senate that this new law would be very broadly applied. It is bad enough to give a government the power to define what is a cult and what is not, what is acceptable religious belief and what is not acceptable religious belief, but this crackdown was unprecedented. There had been serious crackdowns in the past. At that time, I introduced a resolution in this Senate expressing my concern and the concern of the Congress that this crackdown, this harsh crackdown on the Falun Gong, would only be a beginning. I predicted the so-called cult law would be widely applied. My worst fears have come true. The law has been applied extremely broadly to other groups, including Christians. On August 23, 2000, Chinese police arrested 130 Christians in Henan Province. These Christians are from the Fangcheng church, a popular house church movement. The Chinese Government considers them a cult, not because of what they believe, not because of their teachings, but because they are not registered with the State; they are not under the control of the Chinese Government. Their leaders, arrested a year ago, are suffering for their faith in labor camps, a penalty under the so-called anti-cult law. The proponents of PNTR have argued that, No. 1, increased trade will result not only in an increased export of American products to China but also in the export of American values, including human rights and individual freedom. No. 2, they have asserted that the failure to grant PNTR would result in isolating China and driving the Chinese regime to even more repressive tactics. No. 3, they have insisted that entry into the WTO will ensure that Chinese misbehavior can be addressed and that Chinese violations would be dealt with under the World Trade Organization. No. 4, they have further asserted that the creation of a human rights monitoring commission in this legislation will guarantee the ongoing monitoring of human rights conditions in China. In my opinion, these arguments have merit. Also, the advocates of PNTR are, in my opinion, sincere. I would never question their motivations. I would never question that, in fact, they believe in all sincerity that this is a better route or a real route to improving human rights conditions in China. I very much want to vote for permanent normal trade relations for China. It will have great economic benefits in the United States; potentially it does. It certainly has great economic benefits to the State of Arkansas. Arkansas is the No. 1 rice-producing State in the Nation. We are looking for markets. We want to sell that rice, whether it is in China, whether it is in Cuba, or wherever it is in the world. Some have analyzed the cotton industry will be the biggest beneficiary under PNTR. Arkansas is in the top tier of States in the production of cotton. Arkansas is the leading State in poultry production. When I visited China and went to the two Wal-Marts that are in China today--a Sam's store and a Wal-Mart--I was surprised to see the No. 1 product being sold is chicken feet. It is a delicacy, a speciality in China. We in Arkansas grow poultry. We want to make every use of it, and China is a good market for it. We have major retailers in Arkansas, and the prospects of new markets emerging in China are very appealing to retailers. I very much wanted to vote for this bill. It is in many ways in the economic interest of Arkansas to see this go forward and, in fact, it is going to pass. In addition, the human rights community, while generally opposing PNTR, is not of one voice. It is not of a monolithic opinion. Not everybody in the human rights community believes that PNTR should go down. Some, in fact, accept these arguments as being meritorious, that increased trade will bring about liberalization in China, greater democratization, and eventually improvement in human rights. Good people can and do disagree. That is the case when it comes to whether or not China should receive from us permanent normal trade relations. I hope and pray the arguments that have been made by the PNTR proponents are all realized, that they are right on every point. I hope when they express their conviction that the best way to improve human rights in China is to see increased contact with the outside world, to see increased trade, to be exposed to new ideas, to see an expansion of the Internet, that all of those arguments are realized and realized soon, not in the long term but in the short term. We may eventually see political liberalization in China. I think we will in the long term. But we should not assume PNTR or the WTO will be the main driver of this change. While we hope for change in the long run, I do not believe we can remain silent about Chinese abuses in the shortrun. We must not ignore the lessons of history. I listened with great interest to much of the debate on the floor over the last 2 weeks, particularly the distinguished Senator from New York, in whom I have the greatest admiration and respect for his scholarship and his mind, as he went through some of the historic lessons of China and talked of improvements in China's human rights record. In one sense, that is certainly true. It is better now than it was during the Cultural Revolution, but let's not be selective in our recounting of recent Chinese history. During the winter months of 1978 and 1979, thousands of people in Beijing posted their written complaints and protests about the ills of China on a stretch of blank wall on Chang'an Avenue. This voice of protest, which became known as the democracy wall movement, was muzzled as the Chinese Government imprisoned its leaders such as Wei Jingsheng. That same year of the crackdown on the democracy wall movement, the U.S. established diplomatic relations with China and signed a bilateral trade agreement. Deng Xiaoping introduced a series of economic and legal reforms, and international protests against repression in China were drowned out by the promise of free-market initiatives. Twenty-one years since the United States signed a bilateral trade agreement with China, we have only seen increasing political repression and religious persecution. Harvard professor Dani Rodrik expressed this sentiment when he said: I would not assume, as many advocates of normalized trade relations with China have done, that expanded trade will necessarily produce greater democracy. . . . If the Chinese leadership is truly interested in democratization, they do not need the World Trade Organization to help them achieve it. . . . There are no human rights prerequisites for WTO membership. Even if the Chinese Government were to become more repressive, existing WTO rules would not allow the U.S. and other countries to withdraw trade privileges. The pressure would have to be applied outside the WTO context. What he is saying is if we cede the main tool we have for applying this pressure, which has been the annual MFN debate, by passing the PNTR package, we are left with a toothless Levin-Bereuter commission. This commission proposal, which is included in the PNTR package we will be voting on, has been sold as a Helsinki Commission for China. As a Helsinki Commissioner, I know this proposed commission lacks a cornerstone, the Helsinki Final Act, which commits OSCE member nations to certain human rights standards. Without that foundation, we will simply be duplicating the efforts of the U.S. State Department's Bureau of Democracy, Human Rights, and Labor, and we will find out from this commission what we already know: Human rights in China are and at least for the foreseeable future will remain deplorable. It would be wrong for me not to recognize the economic arguments for granting PNTR to China, and I have tried to acknowledge that. I believe business and agriculture can determine their best interests, but here, too, we should recognize that inflated expectations could quickly be punctured by an unruly China. For all the anticipation and excitement in the business community over PNTR, we will face a recalcitrant trading partner in China at the WTO. We will see the dispute settlement system and the very functioning of the WTO put to a great test. In the final analysis, though I know PNTR is going to pass and though I realize there are going to be some very significant economic benefits to our country, and while I hope the best face and the great expectations that have been propounded for this legislation will be realized, I have concluded that I must vote no on this because the words in the most recent State Department report on China keep echoing in my ears: ``The Government's respect for religious freedom deteriorated markedly.'' It is the most recent report--and I cannot escape the judgment that it has not gotten better--that the conditions in China have deteriorated markedly. In ancient Rome, the Roman Government did not really care what Roman citizens believed. They did not care what their religious faith was or necessarily if they even had a religious faith. What they did care about was the supremacy of the Roman Government over its people and over all religions. Effectively, they said to their citizens: You can believe anything you want so long as you will affirm that Caesar is lord. It was not the beliefs of Christians that got them in trouble in the Roman persecutions; it was the fact they would not make that affirmation that the Roman Government was supreme and that Caesar was lord. It seems to me that is a clear analogy to the conditions in China today. There is religious freedom in China only insofar as every religious group in China will affirm that the Chinese Government is ultimately supreme. To the extent that any religious group defies that ultimate standard, they then face intense persecution. So for those reasons I will cast a ``no'' vote. I suspect that there will be 20 to 25 Members who will cast that same vote. I hope for the best outcome for PNTR, but for my own conscience I will cast a ``no'' vote next week. Mr. President, I yield the floor.

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, I understand there is a bill at the desk due for its second reading.

Mr. HUTCHINSON. Mr. President, I object to further proceedings on this bill at this time.

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, I rise today in support of the Paul Coverdell National Forensic Sciences Improvement Act of 2000. I am proud to be an original cosponsor of this important and necessary legislation and commend my friends, Senator Sessions and the late Senator Coverdell, for all of their hard work and leadership they have shown in this matter. To justify the need for this legislation, I point to the situation that the Arkansas State Crime Lab is experiencing as a direct result of the exponential increase in the production, use, and distribution of methamphetamine. Simply put, with 16,000 test requests this year-- resulting in a backlog of over 6,000 cases--the Arkansas State Crime Lab is at the breaking point. Accordingly, it now takes five to six months from the receipt of a sample to complete the analysis necessary for prosecution. I commend and thank Senator Gregg for his assistance in the procurement of funding to hire three additional chemists. However, I recognize that Arkansas is not alone in its great need and that Congress must authorize more federal funding to fight the ever- increasing proliferation in the production, use, and distribution of illicit substances in our nation. The Act would provide an additional $768 million over the next six years in the form of block grants by the Attorney General to states to improve the quality, timeliness, and credibility of forensic science services to the law enforcement community. It would do this by allowing states the flexibility to use these monies for facilities, personnel, computerization, equipment, supplies, accreditation and certification, education, and training. The Act's merit is further made manifest by the fact that it is supported by such groups as the American Academy of Forensic Sciences, the National Association of Medical Examiners, the American Society of Crime Laboratory Directors, the Southern Association of Forensic Sciences, the International Association of Chiefs of Police, the National Association of Counties, and the National Organization of Black Law Enforcement Executives. Thus, I ask my colleagues to join me in helping Senator Sessions in his efforts to enact that this important legislation.

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, I rise today in support of the Paul Coverdell National Forensic Sciences Improvement Act of 2000. I am proud to be an original cosponsor of this important and necessary legislation and commend my friends, Senator Sessions and the late Senator Coverdell, for all of their hard work and leadership they have shown in this matter. To justify the need for this legislation, I point to the situation that the Arkansas State Crime Lab is experiencing as a direct result of the exponential increase in the production, use, and distribution of methamphetamine. Simply put, with 16,000 test requests this year-- resulting in a backlog of over 6,000 cases--the Arkansas State Crime Lab is at the breaking point. Accordingly, it now takes five to six months from the receipt of a sample to complete the analysis necessary for prosecution. I commend and thank Senator Gregg for his assistance in the procurement of funding to hire three additional chemists. However, I recognize that Arkansas is not alone in its great need and that Congress must authorize more federal funding to fight the ever- increasing proliferation in the production, use, and distribution of illicit substances in our nation. The Act would provide an additional $768 million over the next six years in the form of block grants by the Attorney General to states to improve the quality, timeliness, and credibility of forensic science services to the law enforcement community. It would do this by allowing states the flexibility to use these monies for facilities, personnel, computerization, equipment, supplies, accreditation and certification, education, and training. The Act's merit is further made manifest by the fact that it is supported by such groups as the American Academy of Forensic Sciences, the National Association of Medical Examiners, the American Society of Crime Laboratory Directors, the Southern Association of Forensic Sciences, the International Association of Chiefs of Police, the National Association of Counties, and the National Organization of Black Law Enforcement Executives. Thus, I ask my colleagues to join me in helping Senator Sessions in his efforts to enact that this important legislation.

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, I ask unanimous consent that I be recognized to speak for 5 minutes as if in Morning Business. Mr. President, I rise to introduce a resolution which designates September 7th of each year as ``National Safe TV for All-Ages Day.'' On September 7, 1927, Philo Farnsworth, a young 21-year-old inventor in San Francisco, transmitted the first all-electronic television picture. By the time he died in 1971, Philo Farnsworth's invention had become one of the greatest innovations of the 20th Century. Today, the modern television plays a central role in entertaining untold millions world-wide, and no where has it made more of an impact on society than in the United States. Television has become a fixture in almost every home. Americans view an average of 17 hours of television per week. This medium enjoys unprecedented access into the American home. Sadly, this access to the family has been abused as scenes of overtly violent and sexual acts on television have been on the rise for decades. As a result, there is a general consensus among researchers and the American public that violence on television correlates to violent and aggressive behavior in children and teenagers. Given the continued rise of this negative behavior in American society--especially among young people--parents, teachers, law enforcement officials, sociologists, and politicians are looking for ways to fight back. That is why I have publicly encouraged television executives and movie makers to take responsibility for the impact their programming and movies are having on viewers, regardless of age. While the entertainment industry continues to market violence, families must decide how to protect against a barrage of negative images. My resolution encourages families and viewers of all-ages to turn off the overtly violent and sexual programming and turn to safe, family oriented programming which reinforces positive attitudes and sound cultural values in our homes, schools, and communities. Television programming which portrays responsible conflict resolution and positive, meaningful role models has a profound impact on the values that influence American culture. It is my hope that parents take matters into their own hands by making September 7th the day families use the remote control to send a message to the television executives that violent programming is not wanted in our homes. It is my sincere hope that more Americans consider what kind of cumulative affect negative television programming has on families. I encourage my colleagues to cosponsor this measure and support safe TV for all ages. Mr. President, I yield the floor.

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, I rise today to introduce the Just Opportunities in Bidding (JOB) Act which is necessary to ensure that companies who seek to do business with our government are treated fairly. The JOB Act would prohibit the implementation of proposed regulations which would dramatically amend the Federal Acquisition Regulation. I have many concerns about these proposed regulations, but I am deeply troubled by the discrimination which it will inevitably foster when implemented. The regulations will de facto amend many of our nation's laws and give government contracting officers, who are not trained in the interpretation of these laws, unfettered discretion to deny contracts to companies based on any alleged violation of any labor and employment, environmental, antitrust, tax, or consumer protection laws over the three years immediately preceding the contract. This is a dramatic change from the current requirements of the Federal Acquisition Regulation which requires that violations must be substantial to trigger denial of contract eligibility and does not extend to unrelated, past violations. The proposed regulations would also allow for the denial of contracts on the basis of a mere complaint issued by a federal agency, which often are based solely upon information provided by outside, interested parties. Moreover, the proposal's terminology is vague and extremely subjective--placing tremendous and unprecedented discretion in the hands of federal contracting officers. That is discretion that they do not need nor qualified to exercise. Terms such as ``legal compliance'' by bidding parties are well-intentioned, I am sure, however, I view this as a trial lawyer's greatest wish come true. What does ``legal compliance'' mean? Does it mean that employers must ensure that they are 100 percent in compliance with all of the pertinent laws? Can even the most prudent employers guarantee that they and their worksites are 100 percent in compliance with all federal tax, labor, environmental, and anti-trust statutes and regulations? That's certainly a question which many creative lawyers will undoubtedly rush to answer in courthouses across our nation. This proposal is in direct contradiction to existing policy which is to fulfill governmental needs for goods and services at a fair and reasonable price from contractors who are technically qualified and able to perform the contract. Our current policy is based upon a good balance between our desire to get the best value for our constituents' taxdollars while being fair to all qualified companies who want to have the opportunity to provide their goods and services to the government. The proposed regulations will result in the unjustified exclusion of many of these companies from the bidding process and will result in less competition, reduced job opportunities for many employees-- especially small businesses--and less value for our constituents' taxdollars. As elected representatives of our constituents, we cannot condone this and as a legislative body we must refuse to allow a continuation of this Administration's legislation by regulation. The JOB Act would require the GAO to thoroughly examine this issue and report back to Congress with its findings. To me, this is a sound and reasonable approach rather than a political one. If you agree that the proposed regulations--and the millions of American workers, employers, and taxpayers that they will profoundly affect--deserve more thorough consideration, join me in my effort to enact the JOB Act. I ask consent that the text of the bill be included in the Record.

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, I rise today to introduce the Just Opportunities in Bidding (JOB) Act which is necessary to ensure that companies who seek to do business with our government are treated fairly. The JOB Act would prohibit the implementation of proposed regulations which would dramatically amend the Federal Acquisition Regulation. I have many concerns about these proposed regulations, but I am deeply troubled by the discrimination which it will inevitably foster when implemented. The regulations will de facto amend many of our nation's laws and give government contracting officers, who are not trained in the interpretation of these laws, unfettered discretion to deny contracts to companies based on any alleged violation of any labor and employment, environmental, antitrust, tax, or consumer protection laws over the three years immediately preceding the contract. This is a dramatic change from the current requirements of the Federal Acquisition Regulation which requires that violations must be substantial to trigger denial of contract eligibility and does not extend to unrelated, past violations. The proposed regulations would also allow for the denial of contracts on the basis of a mere complaint issued by a federal agency, which often are based solely upon information provided by outside, interested parties. Moreover, the proposal's terminology is vague and extremely subjective--placing tremendous and unprecedented discretion in the hands of federal contracting officers. That is discretion that they do not need nor qualified to exercise. Terms such as ``legal compliance'' by bidding parties are well-intentioned, I am sure, however, I view this as a trial lawyer's greatest wish come true. What does ``legal compliance'' mean? Does it mean that employers must ensure that they are 100 percent in compliance with all of the pertinent laws? Can even the most prudent employers guarantee that they and their worksites are 100 percent in compliance with all federal tax, labor, environmental, and anti-trust statutes and regulations? That's certainly a question which many creative lawyers will undoubtedly rush to answer in courthouses across our nation. This proposal is in direct contradiction to existing policy which is to fulfill governmental needs for goods and services at a fair and reasonable price from contractors who are technically qualified and able to perform the contract. Our current policy is based upon a good balance between our desire to get the best value for our constituents' taxdollars while being fair to all qualified companies who want to have the opportunity to provide their goods and services to the government. The proposed regulations will result in the unjustified exclusion of many of these companies from the bidding process and will result in less competition, reduced job opportunities for many employees-- especially small businesses--and less value for our constituents' taxdollars. As elected representatives of our constituents, we cannot condone this and as a legislative body we must refuse to allow a continuation of this Administration's legislation by regulation. The JOB Act would require the GAO to thoroughly examine this issue and report back to Congress with its findings. To me, this is a sound and reasonable approach rather than a political one. If you agree that the proposed regulations--and the millions of American workers, employers, and taxpayers that they will profoundly affect--deserve more thorough consideration, join me in my effort to enact the JOB Act. I ask consent that the text of the bill be included in the Record.

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, I rise today, with my colleague Senator Feingold, to introduce the Equal Access to Justice, EAJA, Reform Amendments of 2000. I do so because I firmly believe that small business owners and individuals who prevail in court against the federal government should be automatically reimbursed for their legal expenses-- fulfilling the true intent of EAJA when passed in 1980. EAJA's initial premise was to reduce the vast disparity in resources and expertise which exists between small business owners or individuals and federal agencies and to encourage the government to ensure that the claims it pursues are worthy of its efforts. Twenty years ago, former Senator Gaylord Nelson, the author of the original, bipartisan EAJA bill, clearly explained EAJA's intent when he stated, ``All I can say is the taxpayer is injured, and if the taxpayer was correct, and that is the finding, then we ought to make the taxpayer whole.'' I commend former Senator Nelson. His steadfast commitment to our nation's businesses as Chairman of the Senate Small Business Committee is worthy of admiration. As a result of a political compromise, however, the final version of EAJA does not provide for an automatic award of attorneys' fees. Rather, it provides for an award of attorneys' fees only when an agency or a court determines that the government's position was not ``substantially justified'' or that ``special circumstances'' exist which would make an award unjust. Agencies and courts have strayed far from the original intent of EAJA by repeatedly using these provisions to avoid awarding attorneys' fees to small businesses and individuals who have successfully defended themselves. The bill that Senator Feingold and I are introducing today, the Equal Access to Justice Reform Amendments of 2000, would amend EAJA to provide that a small business owner or individual prevailing against the government will be automatically entitled to recover their attorneys' fees and expenses incurred in their defense. Unfortunately, EAJA is not making the taxpayers of this nation whole after they defend themselves against government action. Thus, I ask that my colleagues join Senator Feingold and myself in our effort to make these American taxpayers whole by cosponsoring and supporting the Equal Access to Justice Reform Amendments of 2000.

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, I rise today, with my colleague Senator Feingold, to introduce the Equal Access to Justice, EAJA, Reform Amendments of 2000. I do so because I firmly believe that small business owners and individuals who prevail in court against the federal government should be automatically reimbursed for their legal expenses-- fulfilling the true intent of EAJA when passed in 1980. EAJA's initial premise was to reduce the vast disparity in resources and expertise which exists between small business owners or individuals and federal agencies and to encourage the government to ensure that the claims it pursues are worthy of its efforts. Twenty years ago, former Senator Gaylord Nelson, the author of the original, bipartisan EAJA bill, clearly explained EAJA's intent when he stated, ``All I can say is the taxpayer is injured, and if the taxpayer was correct, and that is the finding, then we ought to make the taxpayer whole.'' I commend former Senator Nelson. His steadfast commitment to our nation's businesses as Chairman of the Senate Small Business Committee is worthy of admiration. As a result of a political compromise, however, the final version of EAJA does not provide for an automatic award of attorneys' fees. Rather, it provides for an award of attorneys' fees only when an agency or a court determines that the government's position was not ``substantially justified'' or that ``special circumstances'' exist which would make an award unjust. Agencies and courts have strayed far from the original intent of EAJA by repeatedly using these provisions to avoid awarding attorneys' fees to small businesses and individuals who have successfully defended themselves. The bill that Senator Feingold and I are introducing today, the Equal Access to Justice Reform Amendments of 2000, would amend EAJA to provide that a small business owner or individual prevailing against the government will be automatically entitled to recover their attorneys' fees and expenses incurred in their defense. Unfortunately, EAJA is not making the taxpayers of this nation whole after they defend themselves against government action. Thus, I ask that my colleagues join Senator Feingold and myself in our effort to make these American taxpayers whole by cosponsoring and supporting the Equal Access to Justice Reform Amendments of 2000.

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, I join my colleagues in rising to offer my sympathies and condolences to Nancy and the Coverdell family. Today, we all grieve Paul's passing, but we also celebrate his life. What a life it was; a life of achievement, a life of incredible service and accomplishment. I did not know Paul Coverdell until I came to the Senate in 1996. I followed his career, as many Americans did. I followed with interest and admiration his campaign for the Senate and his election to the Senate from Georgia. It was only when I arrived at this institution that I got to know Paul Coverdell, the man. Much has already been said this morning and yesterday and has been said well. He was ubiquitous. It seemed Paul was everywhere. The breadth and number of issues he was involved in takes your breath away. It was amazing how much he knew and how much he was willing to invest his time and energy. He was incredibly hard working and willing to do what others didn't want to do, didn't have time to do. He made time and he was willing to take on the nonglamorous jobs. He didn't seek glory and he didn't seek adulation. He gave credit away freely because he didn't seek it for himself. He was a consensus builder; he was a doer. If you wanted it accomplished, you gave the task to Paul Coverdell. One quality which I as a junior Member of the Senate especially appreciated and admired was his deep respect for his fellow man and his deep respect for his colleagues, regardless of their rank or status. I served on the education task force with Paul. We had a lot of strategy meetings. We had meetings in Senator Lott's office in which we would talk over the education issue and discuss not only how we would communicate our message but how we would pass legislation. There were a lot of senior Members on the task force. They were always quick and bold to speak out and give their opinion. What I noticed about Paul Coverdell was that he was always observing who had spoken and who hadn't, who had expressed their opinion and who hadn't. At every meeting he said: Tim, you haven't said anything yet. What are your thoughts? Do you have an opinion? Or he would see Susan Collins and say: Susan, how do you feel about this issue? He always included junior Members. He included everyone because he respected not only their opinion, but he respected them as human beings. He epitomized what service is all about. I think that Paul Coverdell provides the lasting role model of what a U.S. Senator should be, what a public servant should be. Many of my colleagues have struggled to find words and to find scripture and verses to express what they felt about Paul Coverdell. I have found a verse that I think applies most appropriately to Paul. It is Mark 10:31. Jesus said: But many that are first shall be last; and the last first. Paul was a leader. But he was a leader among us because he was servant of all of us. I yield the floor.

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, I ask that the Record reflect the purpose of my absence during final passage of H.R. 8, the Death Tax Elimination Act. I departed Washington this morning to attend the wedding of my youngest son, Joshua. I would add that my absence would not have changed the outcome of this vote. If I had been present, however, I would have voted ``aye.''

Mr. HUTCHINSON

Mr. HUTCHINSON. I rise in opposition to the Democratic alternative and in strong support of H.R. 8. I listened with interest to the debate taking place earlier this morning on this bill. I have the utmost respect and admiration for Senator Moynihan. However, I wrote down one phrase he used. He said: We should stay with a tax that has served us well. I think that is the fundamental difference between the parties and those who differ on this issue. I don't believe the death tax has served our country well. I don't believe it has served the American dream well. I don't believe it serves the American people well. The death tax basically says to the American people: Be successful but don't be too successful. The death tax says: Work hard but don't work too hard and make too much. The death tax says: Save your money but don't save too much. The death tax puts a ceiling on what the American dream can be. I think that is fundamentally wrong, and therein is the basic difference between the two philosophies, the two parties, the two approaches on the death tax. There are those who say you can make too much and at that point the Government is going to step in and we are going to take what we think you have excessively made and earned and saved and invested, and we are going to redistribute that; we know better how to use that estate than your heirs, your family, your loved ones. We believe that is wrong. The whole approach behind the death tax is fundamentally wrong and un-American. The amendments that are being offered, including the Democratic alternative basically say, let's tweak it a little bit; let's finesse the death tax a little bit; let's expand the exemption a little bit, let's tinker with it. But that is not enough. This is a tax that is past its time --if it was ever justified, and it was not. It should be removed, eliminated, and that is why this alternative is insufficient. It is no accident that the American Farm Bureau endorses H.R. 8. American farmers already have enough challenges growing crops, bringing them to market, making a living. Yet still our farmers see their land whittled away generation by generation, and not just by floods or storms or infestation but by the Federal Government and its tax policies. Death taxes can destroy family-owned farms and ranches when, after taxes, farmers do not have enough to keep their land, their buildings, or their equipment. I want you to listen to the words of H. Jay Platt of the Arizona Farm Bureau Federation as he testified before the House Small Business Committee. This is what he said: My grandfather started our ranch around the turn of the century with a couple of cows on a few acres of grazing land. For 100 years my family has worked hard to build our operation into a modern ranch that is the core of the financial base for three families. We paid taxes on everything we've earned and we don't understand why we have to pay again when we die. We can't comprehend why the government wants to penalize us for being successful by taking our ranch at death. We believe that our family, our community and the environment will all be better off if our ranch continues. That is a powerful statement. That is farmers. But small businesses are in a similar trap. According to the NFIB, more than 70 percent of family businesses do not survive to even the second generation, and more than 87 percent of these small family-owned businesses never make it to the third generation. One in three small business families today have to sell their businesses outright or liquidate business assets just to pay the death tax. The American dream can become an American nightmare because of the death tax. Democrats talk about the estate tax bill we are considering, the elimination bill, as being a tax break for the richest people in America. Let me tell you about some of the people who are really affected by the death tax. One of my own staffer's husband and his siblings just experienced the deaths of both parents. Their mother died only 2 weeks ago. In addition to the intense emotion and grieving this family is currently going through, they are now faced with selling family farmland and other assets in order to pay estate inheritance taxes in an attempt to save the family home and the family business. This is farmland that their parents and they have tilled and planted, farmland which paid for all four of the children's college education. Their small lumber and hardware store is located in a town of 1,400 people and has been in existence nearly 50 years. Not only will they have to pay estate taxes totaling almost half of the estate; they will have to pay capital gains taxes on the assets they sell in order to pay for the death tax. Talk about adding insult to injury. That surely does. This is not about the wealthiest Americans. This is about a family who has put countless hours into rebuilding their family lumber business which burned to the ground a decade ago. This is about all 1,400 people who live in that small town, who are served by that family business, as well as the employees whose livelihoods depend upon that business. This is about handing down a legacy to their children who want to maintain the business which has served this rural community for five decades. The Federal estate tax, the death tax, punishes families for the deaths of their loved ones. The Federal estate tax takes its toll irrespective of the fact that any sale of inherited assets is subject to capital gains taxes. It is clear and, to me, it is simple: This is double taxation. It runs contrary to this country's work ethic and to family values. I have a stack of letters that have come in in the last month from people in the State of Arkansas who are not wealthy Americans but who see the deadly impact of the death tax. Let me share with you one letter from Haskell Dickinson: Dear Senator Hutchinson: My father has grown gray worrying about his estate. He and his family members have paid exorbitant life insurance fees. He has been under intense pressure from large corporations who, he knows will consolidate his company and destroy local business relationships. He has been disillusioned that having to sell will mean a valuable Arkansas asset will be owned by an out- of-state firm. Arkansas stands to lose a lot from such a sale because of lost ``local'' business relations and community support and leadership. The estate tax is a cruel, grinding tax on people like my dad, and his family, and it's terrible for communities to lose good businesses and relationships to bigger, ``out of town,'' corporations. Or this letter from Jack Kinnaman of Kinco, Incorporated. Dear Senator Hutchinson: Since I've been in business, my company and I have paid in income tax ranging from 25-75%. I have worked hard all my life and worked those 60-100 hr. weeks building a company. I am 66 yrs. old and still work 50- 60 hrs. a week. When I die, in all probability, the family will not be able to afford to keep the business going because of the Death Tax (opponents call it estate tax). Some relief was given because so many family farms were being lost. Small businesses like mine should not be lost because of a ``wealth distribution mandate''. We should have some feeling of comfort and pride that we can leave a successful business to our children. I urge you to support the Death Tax Repeal Proposal approved by the House. Mr. Kinnaman, I agree with you. I agree with you. Richard Posner put it this way: Since the accumulation of a substantial estate is one of the motivations that drive people to work hard, a death tax on saving is indirectly a tax on work. It is a fundamental difference. Do you think you ought to tax the products and the fruits of somebody's labor or do you believe you should not? It is a basic difference of philosophy. You can tweak it. You can finesse it. You can expand the exemption. But you are still saying, if you make too much, we are going to penalize you because we are going to tax you at 55 percent. We are going to take half of everything you earned, worked a lifetime to make. That is wrong. You can make all the rationalization and justifications, we should not penalize success in America. We should not say: you worked too hard; you did too well; you succeeded too much. That ought to be exactly the kind of thing we reward in this country. These hard-working--not wealthy but hard-working--and successful Americans are right when they say this tax should be repealed. It takes from Americans an incentive to save, a will to work. The National Federation of Independent Business, the American Farm Bureau, the Black Chamber of Commerce, the Hispanic Chamber of Commerce, the National Indian Business Association, the Pan-American Chamber of Commerce, and on and on, all support H.R. 8, and so should my colleagues on the other side of the aisle. The death tax has been repealed in 20 States since 1980, including that of Senator Kennedy of Massachusetts, Oregon, Vermont. The nation of Canada repealed it, Israel repealed it, Australia abolished it, and so should we. It is past time. It is time to make friends of logic and taxation by repealing the death tax. Let's clear the way for parents to bequeath to their children, not bequeath to the Federal Government. I yield the floor.

Mr. HUTCHINSON. It seems ironic to me when we had the education bill on the floor of the Senate for 8 days, the amendments offered by the other side of the aisle were on health care and campaign finance reform. They had nothing to do with education. Now we have elimination of the estate tax bill on the floor of the Senate and they want to talk about education. The majority leader has done everything in his power to give an opportunity for legitimate education debate and to pass reauthorizing of ESEA. This is a diversion, and all the protests will not change that fact. The death tax has been repealed in 20 States since 1980. I say to Senator Kennedy, I believe the Senate ought to do what his home State of Massachusetts did; we ought to abolish it. We ought to eliminate it as Oregon, as Vermont, as Canada, as Israel, as Australia. We should abolish it--not tinker with it, not play with it, not raise the cap. We need to eliminate it. Senator Kennedy called it the millionaire tax loophole. That is why the Black Chamber of Commerce has endorsed this bill, the Hispanic Chamber of Commerce, the National Indian Association, and the Pan American Chamber of Commerce have endorsed it. We need to abolish the death tax.

Mr. HUTCHINSON. The pending amendment offered by the Senator from New Mexico, Mr. Bingaman, will increase the spending by $11 billion. This additional spending would cause the underlying bill to exceed the finance committee section 302(b) allocation. Therefore, I raise a point of order pursuant to section 302(f) of the Budget Act.

Mr. HUTCHINSON. Mr. President, I request the Chair to notify me when I have 1 minute remaining of my 5 minutes. This Bingaman amendment is a diversion from an important debate on the elimination of the death tax. If you can't change people's minds, sometimes you want to change the subject. That is what the Democrats seek to do by this list of amendments. We had an education debate. We spent 8 days on the Elementary and Secondary Education Act. I am ready to return to that. I think we should. The majority leader has offered the opportunity to return to the ESEA debate just as we did on DOD authorization. Let's do it next week. But let's limit it to germane amendments. The reason we are not on the Elementary and Secondary Education Act is because the Democrat side offered amendment after amendment that had nothing to do with education. I suggest if you want an education debate, let's do it on ESEA. Let's not do it on the elimination of the death tax. The death tax is growing increasingly unpopular with the American people. It is for obvious reasons. They realize it is fundamentally wrong. They know double taxation when they see it. They know if they paid income tax, if they paid capital gains tax, and if they paid sales tax, that it is absolutely, fundamentally, inherently wrong to make death another taxable event. That is what we are wanting to do with this legislation, eliminate it--not refine it, not tinker with it, not raise the cap but eliminate the death tax once and for all because it is wrong. The American people are increasingly opposed to the death tax because they realize that it penalizes success; that the American way is to reward success. The death tax penalizes hard work. It penalizes savings, and it penalizes investment. Senator Bingaman, the distinguished Senator from New Mexico, who I have the greatest respect for, says: Let's not eliminate it; let's just tinker with it, and take the savings--the so-called savings--and put it into education. We have increased spending on education. But it would seem to me the logic is rather ironic; by putting it on the elimination of the death tax and saying we want children to be better educated because we want them to use that better education so they can be successful, but don't be too successful because, if you are, we are going to punish you when you die for the success you have achieved. The Bingaman amendment says to young Americans that it is OK to dream but don't dream too big because when you die we will punish you. The turn of the century was a period appropriately dubbed ``the age of innocence.'' Millions of immigrants came to this country. They came so fast that we couldn't build ships enough to bring them into this country. They came with a dream. Some stayed in New York, others went to Detroit, Pittsburgh, and other industrial cities. But they came with one goal in mind: to succeed with no limits, no caps, no punishing economic thresholds, and, most importantly, no charade. That is why they came here. They knew that life was too short and their families too precious to continue living under oppressive governments. I ask my colleagues: Do you think we are fostering the same dream that existed 100 years ago by keeping the status quo? My esteemed colleague from New York, Senator Moynihan, said this morning that it is a tax that has served us well. That is the basis of this debate. If you believe that the death tax has served this country well, then you certainly don't want to eliminate it. If you believe, as I believe, as Senator Gramm believes, and as I believe most Americans believe, that it is fundamentally un-American, then you want to eliminate it. Senator Gramm is absolutely right. It is a cancer. It is the cancer that you don't just trim back. It is a cancer that must be removed from the body politic and from our public policy.

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, I rise today to introduce legislation requiring an audit of accounts at the U.S. Department of Education that are susceptible to waste, fraud, and abuse. It is unfortunate that Congress has to be dealing with this issue, but unfortunately, it is all too necessary. As Members of the Senate have been debating education this year, we have stressed the need for accountability of federal funds. Before we stress accountability at the local level, though, we must ensure that accountability is also occurring at the federal level. It we are going to increase the budget for the Department of Education, as the Fiscal Year 2001 Labor, Health and Human Services, and Education Appropriations bill does, we have the responsibility to determine whether the Department is properly accounting for the funding that they already have. The U.S. Department of Education is already having problems overseeing the programs that it currently administers. For the second year in a row, the Department of Education has been unable to address its financial management problems. In its last two audits, the Department was unable to account for parts of its $32 billion program budget and the $175 billion owed in student loans. Every year, the Department is required to undergo an independent audit. Unfortunately, for Fiscal years 1998 and 1999, auditors have declared the Department of Education inauditable. The House Education and the Workforce Committee has been holding hearing on financial problems at the Department of Education, and has found serious instances of duplicate payments to grant winners and an $800 million college loan to a single student. In its 1998 audit, the Department blamed its problems on a faulty new accounting system that cost $5.1 million, in addition to the cost of manpower to try to fix the system. A new accounting system will be the third in five years. The most recent 1999 audit showed that the Department's financial stewardship remains in the bottom quartile of all major federal agencies. It also sent duplicate payments to 52 schools in 1999 at a cost of more than $6.5 million. In addition, none of the material weaknesses cited in the 1998 audit were corrected. These instances show that the Department is currently vulnerable to fraud, waste, and abuse. The House of Representatives has already indicated its support for a fraud audit at the Department of Education by passing its own version of this bill on June 13, 2000, by an overwhelming vote of 380-19. Before Congress entrusts the U.S. Department of Education with funding that is so important to our nation's schools and students, we must demand that the funds they already have are well-managed.

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, I compliment and commend the Senator from Oklahoma, Mr. Nickles, for the hard work he has done and the months of labor he has put into this conference. Anybody who has followed the reports of what has come out of this conference cannot honestly say it has been glacial movement. Enormous progress has been made. Concessions have been made on the part of the House conferees as well as the Senate conferees. This is no way to legislate and no way to provide patient protections the way Senator Kennedy and Senator Dorgan have done in parceling out a little piece here and there. Tonight we are going to do scope. That is not the way to legislate. This is truly the triumph of politics over policy. I was writing as various Senators on the Democratic side made speeches. They spoke of a national standard, of universal coverage, and of a national health system. To this Senator's mind, they could be synonymous with a national health care system. We had that debate. We had it in 1993. It was called ``Clinton care.'' Senator Gramm piled it up over here, and it was about 2 feet tall. The American people made a judgment on ``Clinton care.'' We do not want a national health care system, nor is that in the best interest of Americans. The real debate tonight centers around not whether we want protections for all Americans or whether we believe we are the only ones who can provide that protection or whether the States have a legitimate role in providing protections for their citizens. How many States have patient protection laws? Forty-three States have already enacted patient protection laws. Do we not believe they have the best interests of their citizens in mind? What we are doing in our legislation is providing protection where States cannot do it where Federal jurisdiction is legitimate. Under ERISA and self-funded plans, we do that, as we should. I listened to my colleague from Massachusetts, Senator Kennedy. In his State, in 1996, they had a ban on gag clauses. They passed a grievance procedure. They, in fact, have 26 State mandates. Does the Senator not believe they care about their citizens? I heard my colleague and good friend from Florida speak of the need for a national system. The State of Florida passed a comprehensive bill of rights in 1997, emergency room services in 1996. They have 44 State mandates. Do they not care? They care as much as we care, and they know their State better than we do. I heard my colleague from the State of Rhode Island speak about the need for a national health care system. Rhode Island passed a comprehensive consumer rights bill in 1996. They have passed 27 mandates in Rhode Island. I can go on and on. Forty-three States already have a bill of rights. It is not our place to usurp their authority. It is not our place to take over insurance that has traditionally and historically been regulated at the State level. It is wrong for us to do that. To my colleagues I say we have a conference in progress. It is progress. It is working hard. It is making progress. That is the way we should provide patient protections, not through an amendment on an appropriations bill. I thank my colleague, Senator Nickles, for the hard work he has done and all the conferees and look forward to when we will have a meaningful patients' rights bill passed into law. I reserve the remainder of our time.

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, I wish to respond to a few things that my colleague from Minnesota said. First of all, I mention that my father spent more than 20 years in the poultry plants of Arkansas, Alabama, and Mississippi doing exactly the kind of repetitive motion work that the Senator from Minnesota described. I believe, if my father were on the floor of the Senate today, that he would as vehemently and strongly and vigorously oppose this OSHA draconian power move as much as I am going to oppose it. Senator Wellstone emphasized that it is not yet a final rule and therefore it is premature for us to act. I don't think so. I hardly think it would be prudent on our part to wait until after they enacted the rule, and then come back and try to change it when employers would have already faced the rule that was in place. It is anticipated, as I understand it, that the rule will be finally promulgated by the end of this year. If we are going to act, we must act now. Again, Senator Wellstone said they are not done yet. This is the 600 pages that they are to right now. I am concerned if we wait much longer that it may be 900 pages before the end of the year. This is the time for us to act. One of the things that I appreciate about my distinguished colleague from Minnesota is that he believes what he is saying, and he doesn't mince words about it. He made it very clear that from his viewpoint this is class warfare. It is those mean, uncaring employers; it is those managers; it is those businesspeople--they just don't care about their employees. Then we have anecdote after anecdote. That assumption is wrong. I think OSHA will state that does not describe 99.9 percent of the employers in this country. They do care. They have every incentive in the world in caring for those who work for them, ensuring there is a healthy and safe workplace. Beyond that, we ought to talk about the small business man or woman who are struggling to meet every other regulatory burden that this Government has placed upon them and meet all of the tax burdens we placed upon them, trying to keep their heads above water, trying to make ends meet, trying to provide jobs for their employees, and trying to make a contribution to their community. And a rule such as this will have some of the most dramatic effects upon business and upon the economy of any rule ever promulgated by any agency. What about them? As Senator Enzi pointed out, what about the senior citizen on Medicare or those senior citizens on Medicaid or those poor people who are on Medicaid and dependent upon them? What will happen to their health care when we tell health care providers they have to meet the new requirement, they have to comply with the new rule? There is no increase in their budget. There is no change in the reimbursement formulas. You will get what you got before, but now you will have to meet all of the additional burdens. I suggest those who are going to be hurt the most by this rule are those who are the most vulnerable in our society. The Enzi amendment would simply prevent OSHA from finalizing an ergonomics program in fiscal year 2001. That is all it does. It gives the National Academy of Sciences the time it deserves to complete its ongoing, taxpayer-funded study and allow the public to then evaluate the merits of the proposal as well as the NAS study. On Friday, November 19, 1999, Congress adjourned for the year, having completed its work for the 1st session of the 106th Congress. After we left town to return home, OSHA announced the following Monday its new ergonomic proposal. As a member of the Senate authorizing committee and the Subcommittee on Employment Safety and Training, I received no notice, no advance warning, no copy of the proposal--nothing. None of my colleagues serving on the committee received that same courtesy, either. With Congress heading home, OSHA decided it was in America's best interest to launch the largest regulatory proposal ever to be put forth by an administration. Shotgunning the proposal through its hoops in less than 12 months, OSHA refused to wait for the completion of the $890,000 NAS study, bought and paid for with hard-earned tax dollars. The Subcommittee on Employment, Safety and Training, chaired by Senator Enzi, reacted as it should have. After weeks of evaluating the impact this proposal would have if actually enforced, we held our first hearing in April, addressing just one of many portions of the OSHA proposal, the work restriction protections, WRP. The WRP provisions would require employers to provide temporary work restrictions up to and including complete removal from work, based either upon their own judgment or on the recommendation of a health care provider. If the employer places work restrictions upon an employee which would allow them to continue to perform some work activities, the employer must provide 100 percent of the employee's after-tax earnings and 100 percent of work benefits for up to 6 months. If the employee is completely removed from work, the employer must still provide 90 percent of the employee's after-tax earnings and 100 percent of benefits for up to 6 months. The hearing revealed that the WRP provision is a direct violation of section 4b(4) of the 1970 OSH Act. There is no ambiguity in the wording. I have it on this chart. Nothing in this Act shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of employment. This is in reference to the State workers compensation act. When the OSH Act was enacted back in 1970, the clear intent, explicitly stated, was that OSHA was never to impact the State workers compensation laws. Believe me, what they are proposing in this rule would do so entirely. Congress specifically withheld OSHA having that right to supersede or affect those State workers compensation laws. Congress did this because State workers compensation systems are founded upon the principle that employers and employees have both entered into an agreement to give up certain rights in exchange for certain benefits in the area of work- related injury and illnesses. Most often, employers give up most of their legal defenses against liability for the employees' injuries, and the employees give up their right to seek punitive and other types of damages in turn. The crucial factor that makes State workers compensation systems possible is that the remedies it provides to employees are the exclusive remedies available to them against their employers for work- related injuries and illnesses. Anyone who served in the State legislature, as Senator Enzi and I have, knows that this is always one of the biggest issues of debate, discussion, and ultimately, hopefully, consensus between labor and management. It has been a workable system. But it is dependent upon that idea that this is the exclusive remedy. WRP's provisions are in direct contradiction of section 4b(4) and will shake the foundation upon which the State workers systems rests because they will provide another remedy for employees for work-related injuries and illnesses. That is an absolute contradiction of what the OSH Act, establishing this agency, intended in 1970. Since WRP provisions conflict with workers compensation systems, there will certainly be confusion to say the least as to who is liable. That is precisely why Congress put section 4b(4) in the act 30 years ago. To be sure, I dug deeper and found the conference report filed December 16, 1970, accompanying the act. As it pertains to section 4b(4) it reads: The bill does not affect any Federal or State workmen's compensation laws, or the rights, duties, or liabilities of employers and employees under them. It is clear in the language of the statute as well as in the conference report, that Congress did not intend OSHA to have the power to affect and supersede State workmen's compensation laws. I say to my colleagues, it doesn't get any clearer. How can it be misconstrued by OSHA? And they are simply in violation of the act that established them. OSHA is not listening to Congress. Frankly, it also is not listening, not paying any attention to what other Federal agencies are saying about their proposal. According to the Small Business Administration, OSHA has grossly underestimated the cost impact of its proposal. The SBA ordered an analysis of OSHA's Data Underlying the Ergonomics Standard and Possible Alternatives Discussed by the SBREFA Panel. Policy Planning & Evaluation, Incorporated, PPE, prepared the analysis that was issued September 22, 1999. The PPE reported that: OSHA's estimates of the costs in its Preliminary Initial Regulatory Flexibility Analysis of the draft proposed ergonomics standard, as furnished to the SBREFA Panel, may be significantly understated, and that OSHA's estimates of the benefits of the proposed standard may be significantly overstated. This is the conclusion that we find another Federal agency coming to that OSHA has overstated what the benefits will be and they have significantly understated what the costs are going to be. The PPE further reported that OSHA's estimates of capital expenditures on equipment to prevent MSDs--the musculoskeletal disorders--do not account for varying establishment sizes, and seem quite low even for the smallest establishment size category. The PPE attributed the overstatement of benefits that the rule will provide to the fact that OSHA has not accounted for a potentially dramatic increase in the number of MSDs resulting in days away from work as workers take advantage of the WRP provisions. OSHA estimated the proposal's cost to be $4.2 billion annually--that is OSHA's best estimate. That is their cost estimate upon the economy and upon American business, $4.2 billion annually. That is not insignificant. But the PPE estimates that the cost of the proposed standard could be anywhere from 2.5 to 15 times higher than OSHA's estimate. That moves the cost from $10.5 billion to as much as $63 billion or higher. That is just one Federal agency versus another. That is the Small Business Administration saying what OSHA is preparing to do is going to cost small business in this country $60 billion or more. Whom are you going to believe? Are you going to believe OSHA's estimate of a minimal impact? Are you going to believe the Small Business Administration? I don't know, but I don't want to risk the jobs of the American people. I don't want to risk the economy on conflicting opinions by two Federal agencies. Finally, the PPE report for the Small Business Administration shows that the cost-benefit ratio of this rule may be as much as 10 times higher for small businesses than for large businesses. It is very easy for the other side, the proponents of this drastic, dramatic rule change, to come down and rail against big business. Do they not realize that small businesses, the tiny businesses, the mom and pop operations struggling to exist in this country, are going to be impacted 10 times more than large businesses? So if you don't care about the impact upon the economy as a whole, if you don't care about the impact upon large employers, then please consider the impact upon those small businesses out there and what they are going to have to pay to try to comply with this ill-advised rule. The cost disparity is not some slight discrepancy. We are talking about $60 billion a year. Who covers that cost? Who is going to cover the $60-plus billion a year imposed upon the business community of this country? OSHA has an answer. OSHA's answer is: Pass it off on the consumer. Just pass on the cost. That is easy enough. Of course it is inflationary, of course it hurts the economy, but we can solve the problem of this added cost. Just let the consumer pay. Senator Enzi has well noted that cannot be done in Medicare. It cannot be done in Medicaid. It cannot be done on those businesses reimbursed by the Federal Government, where their reimbursement is capped. There is nobody to pass the cost to. No bother, OSHA is going to push forward anyway, and that is what they have done. I have listened to the opponents of the Enzi argument make the case that if this rule is delayed any longer, thousands of additional employees will suffer. Let's be clear, please, colleagues. Let's be clear. With or without this, with or without the 600-page--so far-- proposed ergonomics regulation, rule, OSHA can still enforce its current law. The current law states this in the ergonomics proposal, on page 65774. It is on the chart before us. This is it. Let me quote what their proposed rule says. This is under the general duties provision. OSHA says: [Every employer] shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; and shall comply with the Occupational Safety and Health Standards promulgated under this Act. This is the general duty provision which OSHA has used widely in enforcing conditions in the workplace that they believe are detrimental to the worker. They already have that tool, and they are not hesitant about using that authority. They don't have to have a new ergonomics proposal. They don't have to have a new ergonomics regulation in order to protect the American worker. By the way, this is not about whether or not we are going to address ergonomics at some point--we should. But we should do it in the right way. We should do it with due scientific study, based upon good scientific principles. It is not whether or not there is going to be an ergonomic standard. The issue is how it is going to be done and whether it is going to be done in a thoughtful way, respecting not only the worker but the needs of the employer. But I say again, OSHA currently has the authority under this general duty clause, and they can enforce ergonomics violations currently. According to the proposal: OSHA successfully issued over 550 ergonomic citations under the general duty clause. They even list a number of employers, too. They have the authority, and they are proud of the fact that over 550 times they have issued citations on ergonomics violations under the general duty clause. The point is, OSHA is not a crippled agency--far from it. It is a full-fledged regulatory agency that has the power to put any business out of business. This proposal contains serious flaws which just beg the question: Who is really calling the shots as OSHA? This is not the first regulatory blunder to come out of OSHA in recent days. Just last January, they announced their intention to regulate private residences, our homes. Perhaps my distinguished colleague, for whom I have the utmost respect, Senator Wellstone, would say whether they are just doing their job in that case? The American people rightly rose in outrage that OSHA would think they have the authority to go into the American home and regulate it as a workplace. After being publicly ridiculed and repeatedly humiliated, OSHA dropped the issue. They didn't drop it, they said they want to talk about it next year. Good thing, too, since 10 percent of working Americans work from home at least part-time, and their pursuance would have caused a chilling effect on modern technology. OSHA's home regulation should be mentioned during this debate because many of the hazards OSHA wanted to regulate would be ergonomic- regulated: keyboard height, monitor height, desk height, even the type of chair you might sit in, in your home workplace. The list doesn't stop there. It also includes other potential OSHA violations including the number of outlets, adequate lighting, exit signs, even the bannister height. Neither OSHA nor the 1970 OSH Act provides any guidance as to how to carry out their responsibilities. We raised even more questions: Are employers required to ensure that home offices remain clear of toys at all times so employees don't trip and fall? What about an employer's smoking policy? Does that apply to the home, too? Most important, what about liability for employees' accidents in their employees' homes? How could employers possibly monitor this based upon what OSHA was asking? In that same vein of questions asked in January, we are here again questioning the validity of OSHA's ergonomics proposal: What statutory right does OSHA have to regulate State workers compensation? Senator Wellstone says they are just doing their job. There is no doubt what they have proposed will impact State workers compensation law in violation of the 1970 OSH Act. What reason does OSHA give to why its WRP compensation package would not encourage fraud and abuse? Who would oversee fraud if it did occur? What about the cost estimates posed by another Federal agency, the Small Business Administration? Again, it is not about how much we are willing to pay for an employee's safety but, rather, one agency's estimates being 15 times higher than another's, and then OSHA saying we have enough information, we have a solid basis to move forward. Why are we funding the Small Business Administration if we are going to absolutely ignore their cost estimate in an area they ought to be experts? That is, experts on small business. They say it is 15 times higher than what OSHA says. If OSHA is going to shotgun an ergonomics proposal through the rulemaking process, at least I say they should do it right. So I say to OSHA, put your love of regulating on hold and listen to what America is saying. You have 7,000 public comments submitted. Consider them all, not just a few that happen to support the agenda you seem to be pursuing. Is it a love of regulating? This is a quote I think Senator Enzi used earlier. It is by Marthe Kent, who is the director of safety standards, the leader of OSHA's ergonomics effort, recently quoted in the Synergist magazine of May 2000. This is what was said: I love it; I absolutely love it. I was born to regulate. I don't know why, but that's very true. So long as I am regulating, I'm happy. That is one person's statement, though they are deeply involved in the ergonomics issue and the drafting of the ergonomics rule. But I think that might well reflect the way a lot of regulators feel. So, concluding my comments, I just believe there is something much deeper at stake here, a very genuine and real philosophical difference. Senator Wellstone believes, and those on the other side who support this rule believe, OSHA is just doing their job, and I believe we need to do our job. OSHA was not elected by the people, we were. Not a day goes by that I do not have constituents in Arkansas call our office and complain about some regulatory agency that has gone afield, that has gone off on their own agenda. Thomas Jefferson well recognized that the great threat to freedom of any individual comes when power becomes concentrated. Concentration of power, whether in the private sector, public sector, in a regulatory agency, in a corporation, if there is enough power accumulated in a single place, it threatens the individual's liberty. I believe regulatory agencies today have become a fourth branch of Government unto themselves, unresponsive to what we say, unresponsive to what we do, until we are forced into a position of having only one tool left, and that is to cut off the funding for the implementation of the rule. That is what Senator Enzi has sought to do. That is why I think, on a bipartisan basis, so many realize this step is necessary. I say to Chairman Enzi of the Senate Subcommittee on Employment Safety and Training that I appreciate his dedication to worker safety-- no one doubts it--and for taking the high road when dealing with such highly contentious issues. And he has. Nobody told me when I joined his subcommittee that these issues were going to be easy. They have not been. But that is no reason for us to avoid asking the tough questions and, when necessary, taking the tough votes. Until we get the answers--and OSHA does not have them now--until we get the answers to these tough questions, I ask my colleagues to take a hard, hard look at this ill-advised proposal. Look through it. It may take a week or two, but look through it, and you may understand why the Enzi amendment is so essential. I ask my colleagues on both sides of the aisle to simply postpone, delay OSHA moving forward in this fiscal year with an ergonomics proposal that is going to dramatically impact the economy of the United States, I believe, and negatively impact the safety and the health of senior citizens on Medicare and Medicaid. Delay it by supporting the Enzi amendment. Allow the NAS the time necessary to complete their study and then maybe move forward with a good ergonomics rule to protect the workplace for American workers on the basis of sound science. I thank the Chair, and I yield the floor.

Mr. HUTCHINSON. Mr. President, I send a modification of my amendment to the desk.

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

Mr. HUTCHINSON. Mr. President, I have a second-degree amendment I send to the desk.

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, I rise to support the Enzi amendment and to oppose the ergonomics rule that has been proposed by the Department of Labor. This is the rule: hundreds of pages long. Senator Durbin said a few minutes ago this vote will be about values. I will accept that challenge. It is demagoguery to say because we oppose this rule we are not for safety in the workplace. I don't think anybody sincerely believes that on the other side. I am for a safe and healthy workplace. If we want to talk about values, I hope Members will read this and realize what we are imposing on the businesses on this country. There are going to be workers who lose their jobs because of this rule. There will be small businesses that are going to go bankrupt because of this rule, if it is not stopped. My colleagues, I am opposed to the ergonomics rules for three reasons: It is based upon uncertain science, at best. This body funded almost a $1 million study by the National Academy of Sciences, which is not yet complete. Why do we fund a study by the NAS and then allow OSHA to move forward with the rule before we have the scientific basis for the rule? The Enzi amendment simply says let's hold off and wait until the science is in. CRS says there is great uncertainty about what OSHA has proposed. Not only is there uncertain science, there is uncertain cost. While OSHA says it is a $4 billion cost, the Small Business Administration says the cost will be 15 times what OSHA says it will be. I am inclined to believe the estimates of the Small Business Administration. Private groups believe the cost will be many times beyond that. But we know that it will be very expensive. There is uncertain cost involved. Third, I oppose this rule because of its uncertain impact. It is 600 pages with many unintended consequences. Many times we allow things to go on in these agencies in which there are unintended consequences, but we know that the OSH Act says that OSHA is not to impact workers compensation laws in the States. This will most assuredly do that. As Senator Enzi has rightly pointed out, it is going to negatively impact Medicare, health care dependent upon capped Federal reimbursement. They will have to absorb the costs of the ergonomics with no way to recapture those costs. We also know that OSHA has proudly said they have already used their general duty clause with over 500 citations on ergonomics. They are not helpless to protect workers in the workplace now. We should not allow them to move forward with an ill-advised rule. The issue is not safety. The issue is not OSHA doing their job. The issue is whether we will do our job and whether we will stop an agency that is unresponsive, arrogant, and out of control. I urge my colleagues to support the Enzi amendment. I retain the remainder of the 5 minutes.

Mr. HUTCHINSON

Mr. HUTCHINSON. Mr. President, as chairman of the Personnel Subcommittee on Armed Services, I rise in strong opposition to the Murray amendment which allows abortion on demand in military facilities overseas. I oppose the pending amendment because, No. 1, it is unnecessary. It is a solution in search of a problem. No. 2, it violates the letter and spirit of existing Federal law; that is, the Hyde amendment which prohibits Federal funding of abortion. In fact, that is the issue involved in this amendment. It is a subsidizing of the abortion procedure. Third, if it were adopted, it would likely accomplish very little while providing a Federal endorsement of the practice that is opposed by tens of millions of Americans. My colleagues contend that the Murray amendment is a banner of constitutional rights. I think that argument is disingenuous. The current statute does not preclude servicewomen, serving overseas, from obtaining abortions. Women serving overseas already have the opportunity to terminate their pregnancy because the Department of Defense will provide them transportation either to the United States or to another country where abortion is legal for only $10. That is the cost of the food on the flight. To say there is a constitutional right that is abrogated is incorrect. In 1979, the Congress adopted what has come to be known as the Hyde amendment. The Hyde amendment has been upheld by the U.S. Supreme Court as constitutional. It prohibits the use of Federal funds for performing abortions. The Hyde amendment has broad support in the Congress, and in fact it has broad support by Americans in general. I know my colleagues claim that Federal funds would not be used in these abortions, that women would pay for their own abortions, ostensibly by reimbursing the hospital, although that raises a host of questions that I hope we have time to pose for Senator Murray. But they can't possibly reimburse the hospital for the total cost of the abortion because the military hospital is 100-percent taxpayer funded. The building itself is built with taxpayer funds. Do we intend, under the Murray amendment, to allocate a portion of the cost of the building of that hospital's facilities to the servicewoman seeking an abortion? The beds, the utilities, the salaries of those performing the procedure, these costs come out of the pockets of taxpayers, millions of whom believe abortion is a reprehensible practice. Abortion should not be a fringe benefit to military service. We can't avoid the fact that adoption of the Murray amendment would be clearly inconsistent with the current U.S. statute prohibiting the current funding of abortion. It not only departs from the letter of the Hyde amendment; it departs from the spirit of the Hyde amendment intended to protect the American taxpayer who has a conviction against the practice of abortion from being forced to subsidize and pay for the abortion procedure. My colleagues contend that this is simply a matter of choice. Let's talk about choice for a moment. What about the choice of people who believe that abortion is inimical to their dearest values? What about the choice of taxpayers who don't want to subsidize the termination of life? I find it significant that during 1993, when President Clinton liberalized the practice of abortion in military hospitals, killing of the unborn in military hospitals, every single military physician and nearly every military nurse refused to volunteer to perform such procedures. The President issued his executive memorandum permitting abortion on demand at military hospitals on January 22, 1993-- ironically, the 20th anniversary of Roe v. Wade. The fact that no doctors and almost no nurses volunteered to perform this procedure I think indicates that such a scenario would likely repeat itself if the Murray amendment were adopted. Since military health care professionals cannot be forced to perform such a procedure against their conscience, as Senator Murray has said, the military will then be forced into a position of having to contract out the performance of such procedures to a civilian physician, which would in itself violate the Hyde amendment by requiring the expenditure of taxpayers' funds to pay for that contracted physician. Having to hire abortionists at U.S. military hospitals puts the U.S. military in the abortion business. I find that appalling, something that is not supported by the American people. It is not supported by people on either side of the choice issue, whether pro-choice or pro- life. They do not believe we ought to be expending American taxpayers' dollars in subsidizing abortion. This amendment, whether it is intended or not, would have that result--from the fact that we cannot totally allocate those costs, we are using a military hospital building built by taxpayers' dollars, using doctors whose salaries are paid by taxpayers, using equipment, using support staff--of all being paid for by the taxpayer. There is no conceivable way to calculate what that person should pay to reimburse the Government. The result is that the taxpayers are going to be subsidizing the practice. If in fact doctors in the military react the way they did in 1993, when the President, by executive memorandum, issued the order that we were going to provide abortion on demand in military hospitals, if they react the same way, we would then be in the position of having to go into the civilian sector, contract with doctors who are willing to perform abortions, and pay them with American taxpayers' dollars--clearly, and explicitly, in violation of the Hyde amendment. I find this whole debate to be an exercise in irony. The purpose of our Armed Forces is to defend and protect American lives. We should not then subvert this noble goal by using the military to terminate the lives of the innocent among us. What the Murray amendment would do, in the opinion of this Senator, is to create a kind of legal myth: We are not subsidizing abortions, but we really are. We are saying we are not but in fact we know we are. Let's pretend we are not subsidizing abortions. We know they are in military hospitals performed by military doctors paid by American taxpayers. We know it is supported by taxes paid by American taxpayers. We know the equipment used is bought and paid for by American taxpayers. But we are not really subsidizing it. That is a legal myth and it simply does not measure up. There is a concept called the slippery slope. I suggest allowing abortions to be performed in U.S. military hospitals overseas is just one little more slide down that slippery slope. I ask a letter from Edwin F. O'Brien, the Archbishop for the Military Services, dated June 19, 2000, in opposition to the Murray amendment, be printed in the Record, and I reserve the remainder of my time.