Henry Hyde

Mr. HYDE

Mr. HYDE. Mr. Speaker, it sounds like essentially the same factual situation to me. I assure the gentleman that we would be willing to hold hearings in the Committee on the Judiciary on that subject later this Congress.

Mr. HYDE. Mr. Speaker, I thank the gentlewoman for her courtesy. As the chairman of the House Judiciary Committee--because of our committee's jurisdiction over the Federal antitrust laws and Federal regulatory procedures--I approached this important and complex issue from a competition and deregulatory policy perspective. Clearly, the proposed entry of the regional Bell operating companies into the long distance and manufacturing markets raises fundamental antitrust questions. After all, it is an antitrust consent decree, commonly known as the Modification of Final Judgment or ``MFJ,'' that now prevents them from entering those businesses, and it is that decree that we are now superseding. Also, the telecommunications industry is a highly regulated one at both the Federal and State levels. In my view, less regulation is a desirable goal in this instance, because it will spur further technological innovation, greater competition and job development. On May 2, 1995, I introduced H.R. 1528, the Antitrust Consent Decree Reform Act of 1995. H.R. 1528 proposed to supersede the MFJ and replace it with a quick and deregulatory antitrust review of Bell entry by the Department of Justice. Under H.R. 1528, the Bell companies would have been able to apply to the Department of Justice for entry into the long distance and manufacturing markets immediately upon the date of enactment. The Department of Justice would then have had 180 days to review the application under a substantive antitrust standard-- specifically, Justice would have been required to approve the application unless it found by a preponderance of the evidence that there was a ``dangerous probability that the Bell company would use its market power to substantially impede competition in the market'' it was seeking to enter. This approach received broad, bipartisan support within the Judiciary Committee. In fact, on May 18, 1995, the full Judiciary Committee reported H.R. 1528 by a 29 to 1 recorded vote. unfortunately, however, it became apparent that there was not broad-based House support for a potential Department of Justice veto over Bell entry. The Commerce Committee, on the other hand, understandably looked at this issue from a telecommunications policy and Communications Act perspective. Its bill--H.R. 1555--which ultimately became the House legislative vehicle, required the Bell operating companies to meet various Federal and State legal requirements to open their local exchanges to competition before they are allowed into the long distance and manufacturing businesses. In keeping with the long tradition of our Committees sharing jurisdiction over the subject of telecommunications legislation, we cooperated closely on the formulation of the manager's amendment to H.R. 1555, which was adopted on the House floor in August. A number of the provisions originally contained in my bill--H.R. 1528--were moved into H.R. 1555 through the manager's amendment. Furthermore, following House passage, our two committees continued to work closely together representing the House position in the House-Senate conference committee. Again, I strongly believe the conference report on S. 652 is good legislation that will move America's telecommunications industry forward into the 21st century. Allow me now to briefly explain a few key provisions that were of particular importance to Judiciary Committee conferees. The conference agreement does include a strong consultative role for the Attorney General. Under this part of the agreement, the Department of Justice will apply any antitrust standard it considers appropriate, which may include the dangerous probability standard from H.R. 1528, to applications by the Bells to enter long distance. After conducting its antitrust analysis, DOJ will provide its views in writing to the FCC and they will be made a part of the public record relating to the application. The conference agreement enhances this consultative role by requiring that the FCC give substantial weight to the views of the Attorney General. By giving this special status to the views of DOJ, the conferees acknowledge the long experience and considerable expertise it has developed in this field. Under this approach, the FCC will have the benefit of a DOJ antitrust analysis before the Bell companies are allowed to enter the long distance market. The conference agreement also enhances DOJ's role in another way--it repeals section 221(a) of the Communications Act of 1934 (47 U.S.C. Sec. 221(a)). Congress enacted section 221(a) when local telephone service was viewed as a natural monopoly. The statute currently provides that when any two telephone companies merge, the FCC should determine whether the merger will be ``of advantage to the persons to whom service is to be rendered and in the public interest.'' If so, the FCC can render the transaction immune from ``any Act or Acts of Congress making the proposed transaction unlawful.'' However, the conferees concluded that section 221(a) could inadvertently undercut several of the provisions of the Telecommunications Act of 1996. The critical term ``telephone company'' is not defined. In the new world of competition, many companies will be able to argue plausibly that they are telephone companies. When two telephone companies merge, section 221(a) allows the FCC to confer immunity from any act of Congress--including the Telecommunications Act of 1996--after performing a public interest review. Thus, if it were not repealed, section 221(a) could easily have been used to avoid the cable-telco buyout provisions of the Telecommunications Act of 1996. Any cable company that owned any telephone assets could become a telephone company and be bought out by an RBOC by applying for immunity under this section. Likewise, if section 221(a) were broadly interpreted, it might also have been used to get around all the other line of business restrictions in the bill, including the restriction on RBOC entry into long distance. Fortunately, the conference agreement closes this loophole. In addition, because section 221(a) allowed the FCC to confer immunity from antitrust statutes, it would have allowed mergers between telecommunications giants to go forward without any antitrust review. Mergers between these kinds of companies should not be allowed to go through without a thorough antitrust review under the normal Hart- Scott-Rodino process. A public interest review by the FCC simply is not a strong enough tool to prevent these giants from destroying competition and recreating a monopoly system through a series of megamergers. By returning review of mergers in a competitive industry to the DOJ, this repeal is consistent with one of the underlying themes of the bill--to get both agencies back to their proper roles and to end Government by consent decree. The FCC should be carrying out the policies of the Communications Act, and the DOJ should be carrying out the policies of the antitrust laws. The repeal does not affect the FCC's ability to conduct any review of a merger for Communications Act purposes, for example transfer of licenses. Rather, it simply ends the FCC's ability to confer antitrust immunity. In an era of competitive telecommunications giants, mergers between them ought to be reviewed in the same fashion as those in all other industries. The Judiciary Committee conferees have also focused on the provisions contained in title VI, which address the effect of the bill on other laws. With respect to the various consent decrees, the conference agreement adopts a new approach to the supersession of the Modification of Final Judgment--now called the AT&T Consent Decree in the conference agreement--and the GTE consent decree. It also adds language superseding the AT&T-McCaw Consent Decree--McCaw Consent Decree. The Conference Committee sought to avoid any possibility that the language in the conference agreement might be interpreted as impinging on the judicial power. Congress may not by legislation retroactively overturn a final judgment. Plaut v. Spendthrift Farm, Inc., 115 S.Ct. 1447 (1995). On the other hand, Congress may by legislation modify or eliminate the prospective effect of a continuing injunction. Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992); Plaut, 115 S.Ct. 1447; Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421 (1856). To avoid any possible constitutional problem, the Conference Committee adopted the following new approach. Rather than superseding all or part of these continuing injunctions, the conference agreement simply provides that all conduct or activities that are currently subject to these consent decrees shall, on and after the date of enactment, become subject to the requirements and obligations of the act and shall no longer be subject to the restrictions and obligations of the respective consent decrees. The new approach did require some adjustment in other parts of the bill, including provisions: No. 1, to continue existing equal access and nondiscrimination requirements for local exchange carriers, No. 2, to adjust the definition of RBOC to exclude successors that do not provide wireline service, and No. 3, to continue activities allowed under existing MFJ waiver requests that have been ruled on before enactment. I believe that each of these adjustments has been made successfully and that this new approach will insulate the bill from constitutional attack. In other parts of title VI, the conference agreement retains the House language that expressly provides that no State tax laws are unintentionally preempted by implication or interpretation. Rather, such preemptions are limited to provisions specifically enumerated in this clause. One of those enumerated preemptions, section 602, is the local tax exemption for providers of direct to home satellite services. The conference agreement adopts the House language with minor modifications to insure that the exemption extends only to the provision of programming. Section 602 reflects a legislative determination that the provision of direct-to-home satellite service is national, not local in nature. Unlike cable and telephone companies which utilize public rights-of-way to provide service to their subscribers, providers of direct-to-home services utilize satellites to provide programming to their subscribers in every jurisdiction. To permit thousands of local taxing jurisdictions to tax such a national service would create an unnecessary and undue burden on the providers of such services. Local taxing jurisdictions are therefor preempted from taxing the provision or sale of direct-to-home satellite services. Direct-to-home satellite service providers and others in the distribution chain are exempted from collecting and remitting local taxes and fees on the sale of such services. The power of the States to tax this service is not affected by section 602. Again, States may, if they wish, share the revenue thus collected with their local municipalities. The conference agreement also contains important language, patterned after provisions contained in H.R. 1528--and H.R. 1555--on electronic publishing. Under the conference agreement, the Bell companies will be able to enter the electronic publishing business through a separated affiliate or a joint venture. They will be required, however, to provide services to small electronic publishers at the same per-unit prices that they give to larger publishers. This will allow smaller newspapers and other electronic publishers to bring the information superhighway to rural areas that might otherwise be passed by. The conference agreement joins the House and Senate provisions on alarm monitoring. Under the new section 275, Bell operating companies and their affiliates, who have not already entered the alarm monitoring business, may not provide alarm monitoring services for 5 years from the date of enactment. BOC's that were lawfully engaged in the alarm monitoring business on or before November 30, 1995, however, may continue to provide such services. There are no prohibitions under current law barring such companies from alarm monitoring, and they should be permitted to operate and expand their business just like any other company in our free market system. This legislation should not cause these existing businesses to be unduly penalized after having lawfully entered the business. Moreover, consumers should not be denied the benefits that this additional competition will bring. It is important to emphasize that it is perfectly legal for the regional Bell companies to be in the alarm monitoring business right now. Since an appellate court decision in 1991, the information services restriction originally in the MFJ has been lifted and the Bell Companies have been free to provide alarm monitoring and other information services. Only one Bell company--Ameritech--has chosen to enter into the alarm business. But they did so in reliance on the law as it was--and still is--at the time they entered. They have invested company resources and assets in this business. It would simply not be fair for Congress to step in and change the rules of the game for a company that has lawfully chosen to enter into this business. We are not prohibiting any other existing alarm company from expanding their business, nor are we prohibiting them from acquiring other companies. In my view, legislation that alters the legal rights and/or obligations of private parties should be prospective rather than retroactive. So, for those Bell companies that have chosen not to enter the alarm business, prospective restrictions for a period of 5 years are not unfair. That is, once this law is passed, a Bell company not already in the business on the date of enactment could not enter for another 5 years. It would be quite a different matter to limit the actions of a company that already is in the business. Accordingly, such ``grandfathered'' BOC's may grow their alarm monitoring business through customer or asset acquisitions; however for 5 years from the date of enactment, such a company may ``not acquire any equity interest in or obtain financial control'' of an unaffiliated alarm monitoring company. It should be noted that any BOC providing alarm monitoring services will operate under specific nondiscrimination, cross-subsidy, and customer information obligations and protections. After 5 years, there will be no entry, equity, or financial control restrictions on BOC provision of alarm monitoring services. Finally and importantly, title V of S. 652 will prohibit using and interactive computer service for the purpose of sending indecent material to a specific person under the age of 18. It also outlaws the display of indecent material without taking precautions to shield that material from minors. Defenses to these violations are provided to assure that enforcement will focus on those who knowingly transmit such material to minors. In fact, the conference report expressly provides an absolute legal defense to any on-line access provider, software company, employer, and any other, ``solely for providing access or connection to or from a facility, system or network not under that person's control,'' so long as that person is not involved in ``the creation of the content of the communication.'' Employers are also protected so long as the actions of their employees fall outside of the scope of their employment or if the employer has not ratified the illegal activity. This provision codifies the definition of indecency that has been upheld in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), and Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989). Material that is ``indecent'' is ``material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.'' Thus, the standard contained in S. 652 is fully consistent with the Constitution; it is not unconstitutionally vague. The underlying legal principle of the indecency concept is patent offensiveness. Such a determination cannot be made without a consideration of the context of the description or depiction at issue. As applied, the patent offensiveness inquiry to be made involves two distinct elements: the desire to be patently offensive, and a patently offensive result. Given these inquiries, it is clear that material with serious redeeming value is quite obviously intended to edify and educate, not to offend. Therefore, it will be imperative to consider the context and the nature of the material in question when determining its patent offensiveness. Furthermore, title V clarifies current Federal obscenity statutes so it is undeniable that those laws cover the use of a computer to distribute, transport, or import obscene matter. The regulation of Internet indecency contained in the conference report is not based on what should be seen or discussed via the vast compute network, but rather on where or how it is made available. The provisions of the bill are not the most restrictive means, on the contrary, they are reasonable and narrowly tailored so not to overly burden one's right to engage in indecent communications while at the same time achieving the Government's policy objective of protecting our children. Concerns have been raised about the amendment to 18 U.S.C. Sec. 1462 regarding an interactive computer service. Section 1462 generally prohibits the importation or transportation of obscene matter. Subsection 1462(c) prohibits the importation or interstate carriage of ``any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters or things may be obtained or made * * *.'' We are talking about the advertisement, sale or procurement of drugs or medical instruments or devices, used to bring about an abortion. This language in no way is intended to inhibit free speech about the topic of abortion, nor in any way to limit medical or scientific discourse on the Internet. This amendment to subsection 1462(c) does not prohibit serious discussions about the moral questions surrounding abortion, the act of abortion itself, or the constitutionality of abortion. This statutory language prohibits the use of an interactive computer service for the explicit purpose of selling, procuring or facilitating the sale of drugs, medicines or other devices intended for use in producing abortions. The statutory language is confined to those commercial activities already covered in section 1462(c) of title 18 and in no way interferes with the freedom of individuals to discuss the general topic of abortion on the Internet. Finally, section 508 will protect kids from sexual predators by making it a crime--punishable by up to 10 years in prison--for anyone to use a facility in interstate commerce, including a computer, to induce or solicit a child under 18 to engage in prostitution or other illegal sexual activity. In conclusion, I want to thank Commerce Committee Chairman, Bliley, Subcommittee Chairman, Fields, Ranking Member, Conyers, Ranking Member Dingell, and Senate Commerce Committee Chairman Pressler and their staffs for their cooperation in this monumental effort. In short, as American advances into the 21st century, this telecommunications legislation is tremendously important. It is my firm belief that this bill means more jobs for Americans and will greatly enhance American competitiveness worldwide. It is high time that we replace this overly restrictive consent decree with a statute that recognizes the telecommunications realities of the 1990's. I intend to support the conference report on S. 652 because it will accomplish these goals.

Mr. HYDE. Well, reclaiming my time, Mr. Speaker, I certainly agree with the gentlewoman that any discussion about abortion, both pro-life and pro-abortion rights, is protected by the first amendment guarantee of free speech; and I certainly agree, nothing in title V should be interpreted to inhibit free speech about the topic of abortion. Further, it is correct that our principal intent in adopting this provision was to curb the spread of obscenity and indecency, speech that is not protected by the first amendment, from the Internet in order to protect our children. I yield to the gentlewoman from New York [Mrs. Lowey].

Mr. HYDE

Mr. HYDE. Mr. Speaker, reclaiming my time, the gentleman has consumed all my time. I am sure that was not his nefarious purpose. I am out of time; otherwise, I would have a very learned answer for the gentleman.

Mr. HYDE. I yield to the gentleman from Rhode Island.

Mr. HYDE. Mr. Speaker, this is important legislation, it is creative legislation, but it is made necessary by the unusual circumstances in which we find ourselves. Mr. Speaker, it is a fact that the Federal employees are innocent victims, caught in a crossfire between the White House and Congress. It is not only unfair, but really immoral to deprive them of their salaries. they are in this situation through no fault of their own and any remedy righting the situation requires that they get paid. So that is what this effort accomplishes and it is very worthwhile. More than that, it is an effort to bring the President to the table, living up to his word when he signed a bill on November 20 promising to produce a balanced budget scored by the Congressional Budget Office with honest numbers. He has yet to do that, and that is the real sticking point. I have heard people on the other side criticize us for not doing our job, for not coming forth with the appropriations bills. But, of course, we have. It is the Senate, the other body, rather, that has strange and peculiar rules that permit filibuster, and that has halted in its tracks the appropriation for Health and Human Services.

Mr. HYDE

Mr. HYDE. I yield to the gentleman from Georgia.

Mr. HYDE. Mr. Speaker, reclaiming my time, at the conclusion of this debate we will have the opportunity to reopen three executive branch departments and all of their agencies and to fund the judicial branch of the U.S. Government. The President's veto of this appropriations bill has had the effect of keeping no less than 43,200 employees of the United States furloughed. It did not have to be this way. The President vetoed this conference report because of an alternative method of funding the 1994 crime bill's COPS Program. The fact is under this bill, the one the President vetoed, there is more funding provided for more local governments with more flexibility to hire cops or to hire technology or get equipment, but it lets the decision be made locally, not ``Father Knows Best'' in Washington. I guess it is hard to break the habit of assuming that all wisdom and judgment is here in Washington, and not out where the people are. Prison building grants are contained in this bill that the President vetoed. This bill provides $500 million to fund our Truth in Sentencing Program: This conference report deals directly with what our criminal justice system needs most, holding violent criminals accountable for the pain they have caused. It contains needed legislation to prevent activist Federal judges from taking over and running State prison systems. Count these casualties of the President's veto pen. It is clear keeping criminals behind bars will reduce crime. This bill does it. Prison construction is worthwhile in a proven prevention program. There are so many other things. Few problems have contributed more to the revolving door of justice than Federal court-imposed prison population caps. This bill removes them. Cities across the United States are being forced to put up with predators on their streets because of this judicial activism. In dozens of States and hundreds of communities, Federal judges have imposed prison population caps. So vicious criminals are released simply because we cannot accommodate the caps. In short, the President's veto of the Commerce, State, judiciary and Justice conference report does real harm.

Mr. HYDE

Mr. HYDE. Mr. Speaker, as we continue to reduce the size of our military forces and their presence overseas, it is imperative that intelligence--this Nation's early warning system--is better than ever in this post-cold-war era. As a combat veteran of World War II, I vividly remember how an intelligence failure contributed to the tragedy at Pearl Harbor in December 1941. Within the Roosevelt administration there were scattered bits of information as to what the Japanese might be contemplating. But, there was no one pulling together and analyzing them as part of a coordinated effort to furnish the President with an intelligence estimate of Japan's intentions. Indeed, it was the painful lesson of Pearl Harbor that prompted then President Truman to establish after World War II a centralized intelligence organization. We must, therefore, resist efforts to dismantle or cripple U.S. intelligence. U.S. intelligence capabilities are critical instruments of our national power and an integral part of our national security. With that historical background, I would like to offer some observations and recommendations. the downside of downsizing I have been told that the downsizing of the intelligence community's work force has been especially injurious in key areas. In some agencies, these reductions have allegedly exceeded 80 percent. For example, most of the seasoned Russian military analysts, including those performing highly complex analyses on strategic missile systems, are reportedly moving on or taking early retirement while the remaining talented young analysts are looking for other job opportunities that promise more advancement. Meanwhile, the intelligence community is being tasked to address a wider range of threats and policy needs, especially in the areas of proliferation, economic competitiveness, environment, drugs, terrorism, and humanitarian relief. Currently, warning of potential regional crises and providing support to NATO and U.N. forces in the Balkans are absorbing major resources. These rapidly increasing demands do not include the day-to-day crises that consume additional collection and research resources. The upshot is a growing concern that intelligence is being stretched to the breaking point. This could have serious implications downstream. For example, if another Russian crisis were to occur--such as Yeltsin's attack on Parliament in 1993--the intelligence community today would be less able to warn of military mobilization. Informed sources claim, until recently, analysis and collection on the deception and denial activities of potential adversaries had dropped to dangerously low levels. Purportedly, remedial action is underway. This should be a high priority, as interpreting warnings of attack will become more difficult as adversaries improve their denial and deception techniques. We must remember that U.S. intelligence's highest mission is to support U.S. policymakers in identifying and forestalling threats to U.S. interests worldwide. How to do this in an era of shrinking resources poses real risks and challenges. The idea that intelligence can stay abreast of new technology, add new missions and still downsize its personnel at a rate of 3 to 5 percent per year is fantasy. Experienced intelligence hands say downsizing must be slowed overall and halted for high priority needs. At a minimum intelligence programs should be reinvigorated in three broad areas to minimize risks to U.S. forces and insure our ability to maintain the capability to act effectively in a major crisis. First, new investment should be dedicated to increasing access to high priority targets including Russia, China, North Korea and the rogue states of the Middle East. We must not forget that Russia and China possess strategic nuclear forces and that their long-term political orientation could turn against the United States if hostile leaders were to gain power again in these megastates. Second, a robust investment program to counter denial and deception should be built to embrace satellite, air, and ground base collection. Such a program must include dedicated analysis of, and attention to denial and deception, especially in areas of highest concern. Third, programmatic and personnel policies must be formed to ensure the brightest talent, with linguistic and cultural expertise, is devoted to the most vital issues that affect U.S. security in the long run, not just to issues of the moment. competitive analysis--a cardinal principle that must be preserved In this era of restructuring, the temptation may be irresistible to eliminate perceived redundancies within the intelligence community. That may be necessary in the hardware and collection areas. But, some competitive analysis must be preserved in the analytical realm, especially in areas like strategic nuclear force analysis where threats to the United States are potentially the gravest. I know I always want a second, and in some instances even a third opinion, when it comes to questions of my health. The Nation's well being often pivots around national security issues. Thus, the President and his key advisors must have a variety of assessments presented to them before they make critical, life and death decisions. Moreover, there should be an established procedure and available resources for pursuing comprehensive challenges to mainstream opinion in any analytical area significant to national security. communications technology The explosive pace of communication technology is posing new challenges for the intelligence community. Data is moving around the world in greater volumes and at faster speeds than ever before. Maintaining our advantage in understanding secret foreign communications will hinge upon preserving a strong and robust cryptological capability in the face of rapid technological advances. I am concerned, however, about assertions from reliable sources that adequate resources are not being committed to sustaining this capability. directorate of operations (DO)/Counter-Intelligence The incessant battering the CIA, and the DO in particular, is receiving in the wake of the Ames case has caused morale in the DO to plummet to an all-time low. Much of the criticism is deserved. Nevertheless, there is a real need to be sensitive to this debilitating morale problem as Congress helps the DO remedy the problems cited in the IG's report on the Ames case. I was struck by the serious lack of managerial accountability with respect to the Ames case. Thus, it is very important for the congressional intelligence committees to engage in intensive oversight of what is being done in the counterintelligence area. As far back as 1988, I can recall Dick Cheney joining me in questioning the then DCI, Judge Webster, and others on why the Soviet, Chinese, and Cuba sections of the Operations Directorate were exempted from the Counterintelligence Center scrutiny applied to other areas of the world. In retrospect, it appears that this exemption may have contributed to Ames' going undetected so long. Reportedly, this inexplicable anomaly has now been remedied. Until recently, there did not appear to be a coordinated counterintelligence mission for the Government as a whole. Consequently, no one determined what priorities and resources should be given to each agency. I understand a national counterintelligence strategy has now been developed. If so, it should include the following: First, a system for identifying which secrets are truly critical to the national security, second, assessing those secrets' vulnerability to intelligence threats, third, mandatory cunterintelligence training for all intelligence officers, and fourth, establishing professional counterintelligence services within all appropriate agencies and departments. It is my understanding that the DO is withdrawing to a large extent from certain parts of the world. Budgetary constraints may make this necessary, but it should be very carefully watched. We do not want to repeat the mistake of the late 1970's when the CIA withdrew its presence from key areas of the world only to find shortly thereafter that it had to be reinstated. Therefore, the DO must maintain a surge capability to ensure it can rapidly respond to unexpected emergencies. And for this to be possible, a core network of agents must be sustained in those places deemed momentarily quiescent and unimportant to U.S. security interests. Recently, there have been disturbing press accounts indicating the CIA is considering new screening criteria for recruiting foreign agents. The general impression conveyed is that henceforth future foreign assets must have the pedigree of Mother Teresa or St. Francis of Assisi. Hopefully, these are exaggerated stories. To expect someone with the moral purity of a saint to penetrate the Cali Cartel is wholly unrealistic. Unfortunately, the harsh reality is that the only way to infiltrate the tightly controlled Colombian drug networks is to recruit someone who has ties to them. The same holds true for terrorist cells. We live in an imperfect world, and we sometimes must join forces with individuals with less than pristine personal histories. After all, during World War II, we allied ourselves with Joe Stalin, one of history's all-time mass murderers, to defeat Hitler. In an experiment that bears watching, the DI, Directorate of Intelligence, and the DO have begun to colocate their personnel. In other words, the operators and the analysts are working side by side. Given the historical antipathy between these two sharply contrasting cultures, everyone is watching to see if they can work together congenially. If they can, the overall intelligence effort should benefit immeasurably, especially in the area of counterintelligence where--as spy scandals in recent years have demonstrated--there has been a crying need for better analysis. In this partnership, it is crucial that the DI maintain rigorous objectivity to preclude charges that intelligence analysis is being politicized. This problem can only be avoided through strong agency management. Covert Action Since the mid-1970's covert action has been seen as an atypical procedure for the conduct of foreign policy. It is imperative to rebuild the consensus within the United States that once saw covert action as a regular, legitimate means of bolstering the realization of foreign policy objectives. It must not be seen, nor used, as a last resort, panacea, or substitute for policy. Rather, covert action should be employed as a normal tool of U.S. statecraft, designed to work in support of and in conjunction with government's other diplomatic, military, and economic efforts both against traditional and nontraditional targets. Congressional Oversight of Intelligence Activities Congress obviously must play a very substantial role in any proposal to restructure and oversee the U.S. intelligence community. In this regard, I first introduced a joint intelligence committee bill in 1984 and a congressional oath of secrecy proposal in 1987 that was inspired by a similar oath taken by Ben Franklin and four other members on the Committee of Secret Correspondence of the Second Continental Congress. The latter has now been adopted in the House, thanks to the efforts of one of my congressional colleagues, Porter Goss of Florida. What prompted these confidence building measures was a desire to make congressional oversight more secure and effective. That can only be accomplished if the membership of the congressional panels trust the intelligence agencies and vice versa. If they trust each other, then both sides can be candid with each other. As former advisor to President Eisenhower, Bryce Harlow, reportedly once said, ``Trust is the coin of the realm.'' Leaks destroy that trust and do great damage to the whole oversight process. Moreover, they can jeopardize lives, as well as vital relationships with foreign agents and friendly intelligence services. A joint intelligence committee, composed of a small number of key Members from both Chambers of Congress, would substantially reduce the risks of leaks. The fewer people in the loop, the less likelihood of damaging disclosures. Our forefathers clearly recognized this fact of life as they limited knowledge of Revolutionary War secrets to only five Members. Moreover, each of those individuals took his oath of secrecy very seriously. None other than Thomas Paine, the author of ``Common Sense,'' was fired as a staffer of the Secret Correspondence Committee for leaking information concerning France's covert help to our Revolutionary War effort. We should not hesitate to emulate our forefathers and punish those who violate their secrecy pledges and betray the trust bestowed upon them. intelligence purity Periodically during my tenure on the House Intelligence Committee, there were assertions that intelligence assessments were cooked to buttress certain foreign policy objectives. Immunizing the integrity of intelligence is of paramount importance. Thus, I am opposed to any measures that would even smack of tainting objective intelligence. In this connection, two things come to mind. First, is the proposal to abolish the CIA and fold its functions into the Department of State. That is a recipe for cooking intelligence if I ever saw one. Inevitably, there will come a time when the diplomats will pressure their intelligence colleagues down the hall to color an intelligence assessment to justify a foreign policy initiative. Moreover, the more controversial the policy, the greater the risk of politicized intelligence. Second, and related to the question of cooked intelligence, the Director of Central Intelligence [DCI] must not be viewed as essentially a political operative. Clearly, it is beneficial to the intelligence community if the DCI has the President's confidence, but he or she should not be a policy maker, as are Cabinet members. Rather, he or she should be the President's ultimate intelligence advisor. In short, there must be a firewall erected between intelligence and policy which often is driven by political considerations. intelligence support to law enforcement As chairman of the House Judiciary Committee, I am cognizant of the significant role intelligence plays in supporting law enforcement efforts. I am also very much aware of the tension that often develops between intelligence and law enforcement officials as to how and when intelligence can be used. Protecting sources and methods is the transcendent concern of every intelligence officer. Prosecutors, however, are looking for information that can be used at trial. If security reasons preclude the use of relevant intelligence, then the prosecutor is left with something that is, at best, of marginal utility. Moreover, constitutional standards of due process and the right to confront one's accusers further complicate the relationship between the intelligence community and law enforcement. Prosecutors are constitutionally bound, in a criminal trial, to provide all exculpatory evidence and any other evidence that might tend to diminish the government witnesses' credibility. Any information given to law enforcement by the intelligence community is subject to disclosure, for these very reasons. The Classified Information Procedures Act [CIPA] model works quite well for criminal cases countenancing the government's Hobson's choice between prosecution for criminal misdeeds and the protection of sources and methods of confidential national security information. In that context, the difficult choice is rightfully upon the government. But, in nonpunitive circumstances, such as with deportation of individuals shown through classified information to be a threat to the national security if they remain in the country, the same tension exists under current law. How to reconcile the competing needs and concerns in a deportation matter is a real challenge and one I have attempted to address in the ``Comprehensive Antiterrorism Act of 1995'' (H.R. 1710). In that bill, we address the frustrating situation where the intelligence community has identified an alien as engaging in terrorist activities while in the United States, but because of the current deportation laws, we cannot expel the alien from the United States without disclosing sensitive information--which could jeopardize lives and the security of this Nation. In response to this dilemma, a procedure has been developed whereby the alien would get only a declassified summary of the classified evidence against him. All other non-classified evidence is, of course, discoverable. Unlike CIPA cases, when a situation exists where the provision of a summary to the alien would risk irreparable and significant harm to others, or to the United States, no summary is required and the deportation procedure of the terrorist alien can proceed. The classified evidence, without disclosure to the alien, can be utilized. Because this is not a criminal case, we allow the Government action to proceed without disclosure of the classified evidence. The liberty interests of the alien are significantly less than those of a criminal defendant, and the national security interests of the United States must be superior to the interests of any noncitizen. In criminal cases, the defendant stands to be punished--to lose either his life or his freedom for a period of time. The result of a deportation is simply explusion from the United States--to continue one's life freely and unencumbered, elsewhere. To Americans, life outside the United States may seem oppressive, or certainly less than optimal; but, it is not punishment. A greater tension exists, however, when the United States is faced with a classified allegation that a legal permanent resident alien is engaging in terrorist activities, and a declassified summary cannot be provided without creating larger risks of harm to others or to the United States. These aliens, as recognized by the Supreme Court, have a greater liberty interest in remaining in the United States than do other nonpermanent aliens. Thus, additional procedures to safeguard the accuracy of the outcome, and the fairness of the procedure, must be established. To that end, in our antiterrorism bill, we established a special panel of cleared attorneys who will be given access to the classified information supporting the terrorism allegation so that they can challenge the reliability of that evidence. This is done to help the court in its determination of whether it should ultimately order the alien's deportation based on the classified information. The cleared attorney would be subject to a 10-year prison term for disclosure of the classified information. Hopefully, this new procedure, when enacted, will facilitate greater sharing of classified information between our intelligence and law enforcement officials, without unduly risking disclosure of sensitive information. In summary, the world remains a treacherous place in this post-cold- war era. The increasing threat of terrorism, especially against U.S. targets both home and abroad, is just one very important reason for maintaining a robust intelligence capability around the world. To do less ignores the lessons of Pearl Harbor, and all that implies for the security of this great nation.

Mr. HYDE

Mr. HYDE. Mr. Speaker, I thank my friend for yielding me time. There are some inescapable facts that no matter how we jockey around are confronting us. One is that we face a $4.9 trillion national debt, and the debt service on that every year is $325 billion and rising. That has to be dealt with. The people voted for change last time, not the status quo. We look to the President to help us be a partner in this quest for a balanced budget. The President challenged us in his first State of the Union message to be specific. We have had a budget. It is specific. It balances the budget by the year 2002, and we have asked the White House for their budget, their figures. Now, the President agreed to follow the numbers, the data given by the Congressional Budget Office, but he evidently had his fingers crossed because he has yet to do that. He produces a budget status quo. It will not balance in 5 years, and it uses the Office of Management and Budget figures, not the Congressional Budget Office. Mr. Speaker, the Washington Post, no friend of the Republican party, said that President Clinton wants to balance the budget wearing a Santa Claus suit. Now, let us talk about the present shutdown, which we all deplore. I think it is very bad and we should try to move out of it and get the Government functioning, while, as the gentleman from Massachusetts [Mr. Frank] has said, we argue about these issues. But the Labor, Health and Human Services bill is languishing in the Senate because the President's political party does not like its terms and conditions. According to the Congressional Monitor this morning, the measure has been blocked by Democratic objections to conservative policy riders, but its enactment would keep two-thirds of the furloughed workers on the job. So who is to blame if we are going to assign blame? It seems to me a failure on the part of the Democratic Party to understand that the Republicans have the majority and they ought to send this bill to the President, and two-thirds of the furloughed workers could be on the job. Other bills, about $93 billion in fiscal 1996 spending on natural resources, environmental, veterans housing, and space programs, would protect workers in those agencies from being sent home during a shutdown. The President is going to veto those. So, Mr. Speaker, I think it is rather unfair, if not disingenuous to lay the blame at the feet of the Republicans. We promised the people a balanced budget. We are trying to get there. The President has yet, in my judgment, to negotiate in good faith and that is lamentable, but that is the reality, and all of us ought to agree to try to get the Government back in gear and try to function while these intractable policy issues get as resolved as we can resolve them in the coming weeks. But this impasse cannot be laid at our feet. The President should live up to his commitment and submit a budget that is balanced and using Congressional Budget Office figures. Now, we hear that, yes, but he also agreed to protect Medicare and Medicaid and the environment and school loans and that sort of thing. That is fine. Let us protect those. We need to protect them. But Medicare is going broke. The trustees, on April 5, issued a report, three of whom are in the Cabinet of the President, that it will be bankrupt in the year 2002. So it certainly behooves us to protect Medicare, which is the flag behind which the Democrats are marching, by doing something about it. We have a plan, Mr. Speaker. We have a proposal. Restrain the rate of increase from 10 percent to 7 percent. That is our plan. What is the President's? What is the President's plan to save Medicare? If he wants to protect it, he cannot protect it using words. Come up with a proposal. But the President has not done that. The Democrats have not done that yet because they do not really want to change. They want to redistribute the wealth. They want to continue business as usual, and that is the big impasse.

Mr. HYDE

Mr. HYDE. Mr. Speaker, I speak in support of H.R. 394, a bill to amend title 4 of the United States Code to limit State taxation of certain pension income. In recent years, several States have discussed imposing an income tax on the pension income of retired individuals who worked in those States for part or all of their careers, but who no longer reside there. Some States, such as California and New York, currently do impose these ``State source'' taxes. There is no question but that the States have constitutional authority to impose such a tax. However, State attempts to tax pension income received by nonresidents raise extraordinarily difficult questions of allocation and apportionment. They also pose substantial risks of multiple State taxation of the same income. And more basically, they subject taxes on persons who no longer vote in the taxing jurisdiction, thereby raising charges of unfairness to a population which cannot defend itself in the political arena. Taxation without representation is the cliched phrase. Mr. Speaker, the substitute amendment before us today is the product of negotiation and compromise between private employer groups and the Federation of Tax Administrators. It represents a middle ground which each can support: in addition to covering qualified pension plans, it includes all mirror image plans because those plans are tied to the underlying qualified plans. This is a significant narrowing of the bill as introduced, which would have granted protection to all pension plans, regardless of whether they bore any relationship to a qualified plan. Mr. Speaker, I want to commend my colleague, the gentlewoman from Nevada [Mrs. Vucanovich], for her leadership and perseverance in moving this legislation forward. I also want to commend the gentleman from Virginia [Mr. Scott], the ranking member of the subcommittee, as well as the distinguished and learned chairman, the gentleman from Pennsylvania [Mr. Gekas], for their leadership on this issue. But it was largely due to the efforts of the gentlewoman from Nevada [Mrs. Vucanovich] that this delicate compromise has been reached and the product of negotiation is expected to be expeditiously passed and signed by the President.

Mr. HYDE

Mr. HYDE. Mr. Speaker, will the gentleman yield?

Mr. HYDE. Mr. Speaker, I thank the gentleman for yielding. Mr. Speaker, I just want to point out to my firend from Indiana, and this perhaps has already been pointed out, but line 20 on page 3 says the President and Secretary of Defense should rely on the judgment of the commander of the United States Armed Forces deployed in and around the territory of the Republic of Bosnia and Herzegovina in all matters affecting the safety, support, and well-being of such members of the Armed Forces. Then, four, the President and the Secretary of Defense should ensure the commander of the U.S. Armed Forces that are deployed in and around the territory of the Republic of Bosnia and Herzegovina are furnished the resources and support that he needs to ensure the safety, support and well-being of such members of the Armed Forces.

Mr. HYDE. Mr. Speaker, first of all, let me say why I oppose the well-meaning, but I think flawed resolution of the gentleman from Indiana [Mr. Hamilton]. It will be interpreted as fully supporting the President's policy. Even though it does not say so, and wisely so, I think that is the way the press is spinning it, as the Dornan resolution, cut off all the funds, a middle ground expressing opposition but supporting the troops in the Buyer-Skelton resolution; and this is the other edge of the spectrum, namely supporting the President. But having voted for Buyer-Skelton and having voted for Dornan, mostly I cannot support this because purporting to cover the waterfront, it is very benign as to objections the whole policy. The language is, Whereas some Members of Congress have questions and concerns about certain aspects of the peace implementation process. I do not have questions or concerns, I oppose it, and so do most of the people; in fact, everybody who voted for Buyer-Skelton, because it said, we oppose the policy. So to say we have questions and concerns is just too mild. It is too gossamer. It just does not cover it. So for that reason, I cannot support it, although otherwise it has good language supporting our troops; but the Buyer-Skelton resolution did that, too. Now, clearly, Mr. Speaker, I oppose putting 20,000-plus troops in extreme and certain danger during what I believe to be a time-out in a series of wars that have been fueled by ethnic and religious hatreds, spawned centuries ago. But the key to all this is our national interest, our national interest. Now, somebody has decided our national interest is not at play in Rwanda, even though millions of people have been killed, even though there is no democracy there, but our national interests are not involved. The same thing is true in the Sudan. Millions of people have been killed there, refugees, dislocations, starvation, racial and religious hatreds, but our national interests are not involved there. So that becomes very important. And so we look at Bosnia-Herzegovina and we say, where are our national interests there? By way of comparison, we look at Desert Storm and our national interests were clearly involved. We had a defined enemy, a potential nuclear power with other weapons of mass destruction out waging an aggressive war against Kuwait and putting at risk the major petroleum reserves in the world in the Persian Gulf. If Kuwait had fallen, Saudi Arabia would have fallen and the economies of the world would have been in the vice-like grip of Saddam Hussein. So, for me, and I am not a particularly bright fellow, I could see our national interest bristling in that situation. And the President saw it and the President wanted to commit troops over there. But those of us with some institutional memory, not all, I am sure, remember the vote of January 12 of 1991 where we got 86 Democrat votes yes and 179 no, and not one Democrat leader supported President Bush. I am not going to take the time, Mr. Speaker, to discuss the bills of impeachment, three of them, that were brought against President Reagan and President Bush by various people, as well as litigation. I have the bills of impeachment and I have the complaints in my office. But I would like to note parenthetically that one of the charges in the bill of impeachment against Reagan was the abuse of the United States press in perpetuating a disinformation campaign against Colonel Qadhafi of Libya during the summer of 1986. That, I think, is classic. In looking over the Congressional Record at the debates over Desert Storm, and I grant Members they are not identical at all, one was war and this is peace, sort of. Sort of. We are going in with lots of armament, though, to protect. To enforce, not protect the peace. But our national interests, in my judgment, others may wish what they want or think what they want, were directly involved in Desert Storm. Let me read from the debate what one of the gentlewomen from Michigan had to say, and I quote, and this is January 12, 1991, the Congressional Record. I will give Members the pages if they want them, but here is what she said. In a time of limited resources to rebuild our cities, feed and house our homeless, educate our young, why is this administration so eager to spend billions in a far-off land that will have no meaningful impact on resolving the social and economic problems confronting every American every day right here at home? Another gentleman, who was recently a senatorial candidate in the far west, in a primary, says: Today, a large American force sits uneasily in the Arabian desert. They do not have a clear idea why they are there, the American people do not have a clear idea why they are there, and Congress does not have a clear idea why they are there. Mr Speaker, if we learned anything from the military misadventures of the last 40 years, it is that U.S. military might should not be committed to battle without a clear statement of U.S. objectives and the broad support of the American people. Another senatorial candidate from a State very near and dear to me. Here is what he had to say: I certainly do not know that I could go up and tell someone who has lost a husband that it was more important for this Congress to show unity than patience. But I would hope that this Congress would not squander its constitutional birth right over some ambiguous possibility or partisan loyalty to any President, Democrat or Republican. The ranking member on the Committee on International Relations was very clear when he said in that debate, ``We have a constitutional responsibility to vote at the time when and if the President concludes force is necessary. That decision must be made jointly.'' Then we have a gentleman from California, a long-standing member of the Congress, who said, and I quote: I have not heard any of you say a single thing for which I would vote to send even one American to die. The only valid issue is whether to give Bush authority to order thousands, even tens of thousands to their death. For those who persist, it should suffice to point out the United States is insolvent. To increase our deficit and debt by over $50 billion should turn the most aggressive warriors away from combat. Now, we have a man from Massachusetts, who is skilled in the field of telecommunications and others, and very articulate, and here is what he said: No one could explain to me what the war in Vietnam was all about. I swore then that if I were ever in any position of power, I would do everything I could to assure that before any young persons were asked to lay down his or her life for our country, we would be able to explain to that young man's friends and family the reasons why. So far I have not heard any explanations that would satisfy the loved ones of the new generation who now stand poised to fight in the Persian Gulf. It is a shame. Modification to House Resolution 306 Offered by Mr. Hamilton

Mr. HYDE

Mr. HYDE. Mr. Speaker, very simply, this is a good resolution. It does two things: It expresses the dissent that so many of us feel from the policy implemented by the President in Bosnia. That is all it does. It does not cut any funds, as the Dornan resolution did. In fact, it supports giving our troops all of the resources necessary to carry out their mission safely. So it fully expresses my own views, although I did support the Dornan resolution as the last, best, and only opportunity to keep our young men from going into this morass of ethnic and religious hatred that has been simmering for over 500 years on the off chance that they are out of breath now and they have a cease-fire. Mr. Speaker, this resolution perfectly states my views in opposition but in support of the troops. So I strongly support and urge my colleagues support for the Buyer-Skelton resolution.

Mr. HYDE

Mr. HYDE. Mr. Speaker, I suggest the gentleman correct the Record when it comes around for his extravagance in introducing me. You know, when you get in this debate, you have to expect to be called names, and I have been called some wonderful names, some colorful names. Today it was mindless Luddite, and, you know, you can play that game. I would call people who think abortion is a good idea or an acceptable idea, or something the American taxpayer ought to pay for, I would not call them mindless, but I might call them heartless. I might call them unthinking. But I do not want to get into that game. I want to just try to talk a little reality here. Family planning is not abortion, and abortion is not family planning, and when you link the two together you have got real problems, because many of us do not want to have American tax dollars go to pay for killing unborn children even if they are in Bangladesh or if they are in Toledo. We think human life ought to be special and ought to be sacred, and killing it, exterminating it, however you do it, is wrong and ought not to be paid for with tax dollars. That is what the struggle is about, and we are entitled to access to the political process to try and make our point. But when misstatements are made, we have to wonder who is being mindless. For example, family planning flourishes under our program. Forty percent of all the dollars that are spent worldwide on family planning come from the United States and did under Reagan and Bush. It is simply two organizations that will not accept the money because they want to continue promoting abortion. So there are 300-some organizations that are happy to take our family planning money. Meanwhile around the world family planning, properly understood, which is either helping someone to get pregnant or keeping them from getting pregnant; it is not exterminating the pregnancy once it has occurred, and that is what my colleagues are talking about, and we are asking those gentlemen from Mount Olympus across the rotunda to please understand we are for family planning, we are for foreign aid. It is abortion we are not for. We think that is despicable, we think it is wrong, and we do not think tax dollars ought to go pay for it. So overpopulation; we have heard two speakers bemoan that as one of the great problems in the world. I suggest that is an unsophisticated look at a serious problem. Density is what we should look at, how many people per square mile. There are countries on the globe with a higher density than many of these countries that have overpopulation problems and yet a high standard of living. Japan, Switzerland, Holland have high density, high standard of living. Maybe it is something more than the number of people, maybe it is the economy, maybe it is the kind of government, maybe it is society. But that is a rather superficial look at the problem of overpopulation. The money is fungible. If we give the money to the International Planned Parenthood of London, and they say, ``We're going to spend our money on abortion and not your money,'' that is a bookkeeping transaction and does not fool anybody. So I suggest that we stand fast, we continue to tell the gentleman and gentleladies across the rotunda we do not want to fund abortion.

Mr. HYDE

Mr. HYDE. Mr. Speaker, on December 5, 1995, the Congressional Budget Office transmitted to me a revised letter regarding the budgetary impact of H.R. 2525, the ``Charitable Gift Annuity Antitrust Relief Act of 1995.'' The report of the Judiciary Committee on this bill, which contains the text of the original CBO letter, has already been filed and printed. Therefore, I am inserting the text of the new, corrected letter in the Record. To the extent that the CBO letter is part of the legislative history of H.R. 2525, the December 5, 1995 text, rather than the November 8, 1995 text, should be referenced. U.S. Congress, Congressional Budget Office, Washington, DC, December 5, 1995. Hon. Henry J. Hyde, Chairman, Committee on the Judiciary, House of Representatives, Washington, DC. Dear Mr. Chairman: The Congressional Budget Office has reviewed H.R. 2525, the Charitable Gift Annuity Antitrust Relief Act of 1995, as ordered reported by the House Committee on the Judiciary on October 31, 1995. This revised estimate supersedes the estimate provided on November 8, 1995. Specifically, this estimate clarifies the description of potential antitrust violations under current law; our estimate of no significant cost for enacting the bill is unchanged from the earlier estimate. Because enactment of H.R. 2525 would not affect direct spending or receipts, pay- as-you-go procedures would not apply to the bill. This bill would provide antitrust protection to certain non-profit organizations which issue charitable gift annuities. Under current law, it is unclear whether it is a violation of the antitrust laws for two or more charitable organizations to use or agree to use the same annuity rate for the purpose of issuing one or more charitable gift annuities. According to the Administrative Office of the United States Courts (AOUSC), only one lawsuit alleging such a violation is currently pending in federal court. Based on information from the AOUSC, CBO estimates that while enacting this bill would preclude certain antitrust cases from being litigated, any reduction in future cases would not be significant. Thus, this bill could result in some savings to the federal government, but the amount of such savings would not be significant. While enacting H.R. 2525 could reduce the future antitrust caseload in state courts, CBO estimates that any reduction in litigation would not result in any significant savings to states or local governments. If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contacts are Susanne S. Mehlman, for federal costs, and Karen McVey, for state and local costs. Sincerely, June E. O'Neill, Director.

Mr. HYDE

Mr. HYDE. Mr. Speaker, today I am, along with my Judiciary Committee colleagues, Bill McCollum, Lamar Smith, and Bob Barr introducing a revised antiterrorism bill. [[Page H 13977]] On June 20, the Judiciary Committee favorably reported the Comprehensive Antiterrorism Act of 1995 (H.R. 1710). Since that date, concerns have been raised by a number of Members about certain provisions in H.R. 1710. Responding to these concerns, Bob Barr and I have developed a new compromise version of the bill. The new language responds to the concerns voiced by several Members, yet maintains the effectiveness of the bill to deter future terrorist acts. The new bill does the following: Requires the marking of plastic explosives to allow for more effective detection; Prohibits the possession, importation, and sale of nuclear materials; Prohibits foreign terrorist organizations from raising money in the United States; Prevents entry into the United States by members and representatives of foreign terrorist groups; Reforms asylum laws to stop their manipulation by foreign terrorists; Establishes a special deportation procedure for alien terrorists that satisfies due process and protects our national sovereignty; Encourages the development of a machine-readable visa and passport system; Authorizes an employer engaged in the business of providing private security services to investigate an employment applicant's legal status and his authorization to work; Authorizes lawsuits by Americans against foreign nations responsible for state-sponsored terrorist activity; and Provides for the expedited expulsion of illegal aliens from the United States. Importantly, the bill also: Adds Habeas Corpus reform provisions; Adds the Victim Restitution Act of 1995 (H.R. 665); Adds the Criminal Alien Deportation Improvements Act of 1995 (H.R. 668); Deletes the enhanced wiretap authorizations, including emergency wiretap expansion and roving wiretap modifications; Deletes the authorization of military involvement in civilian law enforcement situations; Deletes the overly broad definition of terrorism; Deletes funding for a domestic counterterrorism center and for additional FBI personnel; and finally, Deletes the 40-percent civil penalty surcharge intended to fund the Digital Telephony law. Important and significant changes have been made in this bill. The revised version deserves broad support. A ``yes'' vote on this legislation is a vote for a more secure America and the fight against crime. I urge your support for this important measure.

Mr. HYDE

Mr. HYDE. Mr. Speaker, on that I demand the yeas and nays.

Mr. HYDE. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks on H.R. 2525.

Mr. HYDE. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise in support of H.R. 2525, the Charitable Gift Annuity Antitrust Relief Act, which provides antitrust protection for nonprofit organizations that issue charitable gift annuities. H.R. 2525 has been crafted in an extremely narrow manner, so as to protect only very limited conduct and to avoid application to any potential anticompetitive conduct. I am pleased to be joined by the ranking member of the Judiciary Committee, Mr. Conyers, in sponsoring this bipartisan measure. Charitable gift annuities are one of the oldest and most commonly used planned giving vehicles in existence today. Many charities, including relatively small ones, issue dozens of gift annuity contracts each year, and they do so within rules established by the Internal Revenue Code. You have all probably seen the advertisements for charities that promise to ``pay you an income for life.'' This is what a gift annuity does, and it is the kind of giving that H.R. 2525 is designed to protect. When a person enters into a gift annuity agreement, he or she is actually doing two things--making a charitable gift and purchasing a fixed income for life. Probably, if the donor could afford to do so, he or she would turn over to the organization as an outright gift the entire amount paid for the annuity; but the donor needs to make some provision for income while alive. The important thing to remember is that gift annuities are not arms-length commercial insurance transactions. Donors expect charities to benefit from their gift, and they know the charities will [[Page H 13678]] pay less income than banks or insurance companies. The annuity rate applied to the value of the gift is the critical element in ensuring that the transaction will result in a meaningful gift to the charity. The American Council on Gift Annuities, a nonprofit organization representing more than 1,500 charitable organizations and institutions, assists its members in determining annuity rates which will produce an average gift to the organization of between 40 and 60 percent of the amount originally donated under the agreement. H.R. 2525 addresses the application of the antitrust laws, and of similar State laws, to the issuance of charitable gift annuities and the publication and distribution of suggested annuity rates for charitable gift annuities--the activities of the American Council and other charitable organizations. In defining the application of the law as it pertains to charitable gift annuities, the bill addresses issues raised in a class action lawsuit brought in the U.S. District Court for the Northern District of Texas, Wichita Falls Division. This lawsuit charges that use of the annuity rates recommended by the council constitutes price fixing, and thus violates the antitrust laws. Mr. Speaker, I believe in the vigorous and nondiscriminatory application of the antitrust laws, and as a general matter, I do not favor exemptions or exclusions from the antitrust laws. In this limited instance, however, it would serve no public policy purpose to subject the calculation of charitable gifts to antitrust scrutiny. First of all, it is not at all certain that the use of consistent annuity rates would be found to be a violation of the antitrust laws. The answer depends on whether the issuance of gift annuities is deemed ``pure charity'' or a ``commercial transaction with a `public service aspect.' '' If it is considered ``pure charity,'' the conduct is not trade or commerce, and therefore not within the scope of the antitrust laws. Even if the issuance of charitable annuities were considered trade or commerce, a court might well find that use of the same annuity rates is not anticompetitive in effect. It is particularly difficult to see what anticompetitive effect the supposed setting of prices has in a context where the decision to give is motivated not by price but by interest in and commitment to a charitable mission. Furthermore, it is unclear whether the selection of an annuity rate could be characterized as the setting of a price: in this instance an annuity rate merely determines the portion of the donation to be returned to the donor, and the portion the charity will retain. Donors are not primarily buying an annuity; they are making a gift. Notwithstanding the serious doubts as to whether the alleged conduct would be considered a violation of the antitrust laws, the current litigation is causing charities to expend massive amounts of time and resources on defending their positions. It is also forcing these organizations to make public information about their donors, a fact which makes people who guard their privacy reluctant to give. In addition, the class action certification makes donors--people who want to help their charities--into unwilling adversaries, causing the charities to expend donated funds opposing those who gave the funds in the first place. If the plaintiffs in the class action lawsuit prevail, thousands of charities nationwide would be required to refund donations and to pay treble damages. This would mean that virtually every charitable organization in America is threatened with losses which could total billions of dollars. Our goal should be to encourage gift giving through legitimate means, and particularly through instruments which the IRS approves and regulates. Gift annuities carry this imprimatur. Regardless of the outcome of the suit, there is no denying that it has had and will continue to have a chilling effect on gift giving and that it is consuming financial resources which would otherwise be allocated to charitable millions. This loss to society far outweighs any possible benefit from the application of the antitrust laws to the setting and use of charitable annuity rates. To eliminate the uncertainty raised by this litigation, and to ensure the proper public policy result, H.R. 2525 makes clear that charities' use of the same annuity rates when they issue gift annuities does not violate Federal or State antitrust laws. The antitrust protection provided by H.R. 2525 is intended to extend to attorneys, accountants, actuaries, consultants and others retained or employed by a person described in section 501(c)(3) of the Internal Revenue Code of 1986, when assisting in the issuance of charitable gift annuities or the setting of charitable annuity rates. I urge my colleagues to join me in protecting the charities of this country by voting in favor of H.R. 2525. I also urge my colleagues to support complementary legislation introduced by the gentleman from Texas [Mr. Fields] which addresses allegations of securities and insurance law violations contained in the class action suit. Enactment of that bill, H.R. 2519, along with H.R. 2525, will ensure that the vital work of charitable organizations can continue without the threat of crippling lawsuits. Mr. Speaker, I reserve the balance of my time.

Mr. HYDE. Mr. Speaker, I just want to say how pleasant it is to have the gentleman from Michigan [Mr. Conyers] on our side. Mr. Speaker, I have no further requests for time, and I yield back the balance of my time.

Mr. HYDE. Mr. Speaker, point of order. Should the gentleman's remarks be confined to the bill and not to extraneous matter that may be lurking within his fertile imagination?

Mr. HYDE

Mr. HYDE. Mr. Speaker, today I am introducing the Intellectual Property Antitrust Protection Act of 1995. I am pleased to be joined by my colleagues on the Judiciary Committee, Mr. Moorhead, Mr. Sensenbrenner, Mr. Gekas, Mr. Coble, Mr. Smith of Texas, Mr. Canady, Mr. Bono, Mr. Bryant of Tennessee, and Ms. Lofgren who are original sponsors of this legislation. Because of increasing competition and a burgeoning trade deficit, our policies and laws must enhance the position of American businesses in the global marketplace. This concern should be a top priority for this Congress. A logical place to start is to change rules that discourage the use and dissemination of existing technology and prevent the pursuit of promising avenues of research and development. Some of these rules arise from judicial decisions that erroneously create a tension between the antitrust laws and the intellectual property laws. Our bill would eliminate a court-created presumption that market power is always present in a technical antitrust sense when a product protected by an intellectual property right is sold, licensed, or otherwise transferred. The market power presumption is wrong because it is based on false assumptions. Because there are often substitutes for products covered by intellectual property rights or there is no demand for the protected product, an intellectual property right does not automatically confer the power to determine the overall market price of a product or the power to exclude competitors from the marketplace. The recent antitrust guidelines on the licensing of intellectual property--issued jointly by the antitrust enforcement agencies, the Department of Justice and the Federal Trade Commission--acknowledge that the court-created presumption is wrong. The guidelines state that the enforcement agencies ``will not presume that a patent, copyright, or trade secret necessarily confers market power upon its owner. Although the intellectual property right confers the power to exclude with respect to the specific product, process, or work in question, there will often be sufficient actual or potential close substitutes for such product, process, or work to prevent the exercise of market power.'' Antitrust Guidelines for the Licensing of Intellectual Property dated April 6, 1995 at 4 (emphasis in original). For too long, Mr. Speaker, court decisions have applied the erroneous presumption of market power thereby creating an unintended conflict between the antitrust laws and the intellectual property laws. Economists and legal scholars have criticized these decisions, and more importantly, these decisions have discouraged innovation to the detriment of the American economy. The basic problem stems from Supreme Court and lower Federal court decisions that construe patents and copyrights as automatically giving the intellectual property owner market power. Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 16 (1984); United States v. Loews, Inc., 371 U.S. 38, 45 (1962); Digidyne Corp. v. Data General Corp., 734 F.2d 1336, 1341-42 (9th Cir. 1984), cert. denied, 473 U.S. 908 (1984). To be sure, some courts have also refused to apply the presumption despite the Supreme Court's rulings. Abbott Laboratories v. Brennan, 952 F.2d 1346, 1354-55 (Fed. Cir. 1991), cert. denied, 505 U.S. 1205 (1992): A.I. Root Co. v. Computer/Dynamics, Inc., 806 F.2d 673, 676 (6th Cir. 1986). As the guidelines note, the law is unclear on this issue. Antitrust Guidelines for the Licensing of Intellectual Property dated April 6, 1995 at 4 n. 10. This lack of clarity causes uncertainty about the law which, in turn stifles innovation and discourages the dissemination of technology. For example, under Supreme Court precedent, tying is subject to per se treatment under the antitrust laws only if the defendant has market power in the tying product. However, the presumption automatically confers market power on any patented or copyrighted product. Thus, when a patented or copyrighted product is sold with any other product, it is automatically reviewed under a harsh per se standard even though the patented or copyrighted product may not have any market power. As a result, innovative computer manufacturers may be unwilling to sell copyrighted software with unprotected hardware--a package that many consumers desire--because of the fear that this bundling will be judged as a per se violation of the prohibition against tying. The disagreement among the courts only heightens the problem for corporate counsel advising their clients as to how to proceed. Moreover, it encourages forum shopping as competitors seek a court that will apply the presumption. Clearly, intellectual property owners need a uniform national rule enacted by Congress. Very similar legislation, S. 270, passed the Senate four times during the 101st Congress with broad, bipartisan support. During the debate over that legislation, opponents of this procompetitive measure made various erroneous claims about this legislation--let me dispel these false notions at the outset. First, this bill does not create an antitrust exemption. To the contrary, it eliminates an antitrust plaintiff's ability to rely on a demonstrably false presumption without providing proof of market power. Second, this bill does not in any way affect the remedies, including treble damages, that are available to an antitrust plaintiff when it does prove its case. Third, this bill does not change the law that tying arrangements are deemed to be per se illegal when the defendant has market power in the typing product. Rather, it simply requires the plaintiff to prove that the claimed market power does, in fact, exist before subjecting the defendant to the per se standard. Fourth, this bill does not legalize any conduct that is currently illegal. Instead, this bill ensures that intellectual property owners are treated the same as all other companies under the antitrust laws, including those relating to tying violations. The bill does not give them any special treatment, [[Page E 2226]] but restores to them the same treatment that all others receive. In short, the time has come to reverse the misdirected judicial presumption. We must remove the threat of unwarranted liability from those who seek to market new technologies more efficiently. The intellectual property and antitrust laws should be structured so as to be complementary, not conflicting. This legislation will encourage the creation, development, and commercial application of new products and processes. It can mean technological advances which create new industries, increase productivity, and improve America's ability to compete in foreign markets. I urge my colleagues in the House to join us in cosponsoring this important legislation.

Mr. HYDE

Mr. HYDE. Mr. Speaker, there are some things that are factual, and one is that China has a brutal, inhuman policy of mandating only one- child families, and if you have more than one child, you can be, and I have talked to seven women from China who were forcibly aborted, coercively aborted, or sterilized. I talked to one woman whom the authorities took and aborted her when she was 6 months pregnant, because she picked up a baby girl that was thrown away on the side of a road, and that gave her two children, and so they aborted her. How can anybody support that kind of policy? Well, Mr. Speaker, the United Nations does. Money is fungible. Do not say ``no money for abortion,'' because what you do not spend with this money, you spend with that money. So that is just a dodge. Now, I have heard about the number of women who die from unsafe abortions, and that is tragic, but the mortality rate for the babies is 100 percent. Millions of them die. Mr. Speaker, family planning is not abortion and abortion is not family planning. Whatever dollars we have for family planning are still going to go for family planning, but not to organizations that perform or council abortion. American tax dollars should not be in the abortion racket. We should not pay to exterminate unborn children. That is a policy decision. Mr. Speaker, everybody who takes the well in opposition to the position of the gentleman from Alabama [Mr. Callahan] is for the abortion license. I do not say they are for abortions, but they think abortion is an acceptable answer to an unwanted child, and we think it is highly unacceptable. So do not use American tax dollars to advance the cause of exterminating unborn children, whether they are in the Third World or whether they are in Chicago.