John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. Who has the time?

Mr. JOHNSTON. Mr. President, this amendment is very simple. It is essentially the 1994 Danforth amendment which was adopted by this body without dissent. What it says is that no court shall have the power to order relief pursuant to any case or controversy arising under this article except as may be specifically authorized in implementing legislation pursuant to this section--no court jurisdiction unless specifically authorized by the Congress. That is virtually identical to the amendment which was adopted last year. Why do we propose this? On January 31, we had an extended debate here on the question of whether or not this amendment is enforceable, and if so, how it is enforceable. I opined that the way it would be likely enforced would be to have the Supreme Court order an income tax surcharge, because the Court is particularly ill qualified to make choices between various spending programs, to choose between the B-2 bomber and the F/A-18, or to choose between Social Security and Medicare, or to determine what the effects of these budget cuts would be. The thing they would be able to do is to order an income tax surcharge. It would not change any of the rules. It would simply say you add on to the present income tax, using those rules, a surcharge, which they would order the Treasury to collect. In response to that argument, I had an extended colloquy with my friend from Utah, Mr. Hatch. Mr. Hatch stated that he did not see any way the courts would find standing or justiciability, that only the Congress had power to enforce this amendment. Mr. Hatch made very clear that it is the intent of the majority party that this amendment not be enforceable by the courts. I then asked, ``If that is the intent, why did you not spell it out as we did in the Danforth amendment the previous year?'' To that, Mr. Hatch replied, in effect, that, ``Frankly, there are those on the other side who I think will argue the courts ought to have some control. We just want to avoid that particular argument.'' So in effect what we have is an intentional ambiguity fashioned in order to appeal to both sides of this argument. There are some who think the courts ought to be involved. There are some who think the courts should not be involved. Mr. Hatch thinks the courts are not involved. So, therefore, it is left intentionally ambiguous. Mr. President, I would first like to submit to my colleagues that this is not at all clear. As a matter of fact, I believe the majority legal opinion would be that jurisdiction does lie. Quoting from a Harvard Law Review article of May 1983, they state: Doctrinal analysis demonstrates, however, that taxpayers probably would have standing to challenge alleged violation of either the deficit spending prohibition or the tax limitation provision. Harvard Law Review says when you analyze all the cases, they probably would have standing. Assistant Attorney General Dellinger testified before the committee. Assistant Attorney General Walter Dellinger stated as follows: Moreover, it is possible that courts would hold that either taxpayers or other litigants would have standing to adjudicate various aspects of the budget process under the balanced budget amendment. Even if taxpayers and Members of Congress were not granted standing, a criminal defendant prosecuted or sentenced under an omnibus crime bill that improved tax enforcement or authorized fines or forfeitures could argue that the bill ``increased revenues'' within the meaning of section 4. Or take the distinguished professor, Harvard law professor Laurence Tribe. Mr. Tribe says: So that one way or another, Members of Congress, a House of Congress, someone who has been cut off from a program, a taxpayer--these people will be able to go to court. No question about it. I have a whole folder of cases and experts who say that taxpayers could go to court, that there would be jurisdiction in the courts, that it would be enforceable. Others say it is a question to be determined by the courts. Suffice it to say, in my judgment, no one can seriously rise to his feet on the floor of this Senate and say that this is a clear question; that what Mr. Hatch says is correct, that is, that there is clearly no standing or jurisdiction to enforce this amendment. It simply is not so. As I have just quoted from Professor Tribe, from Professor Dellinger--Professor Fried says the same thing--Harvard Law Review--on and on. It is not clear what the limits of court jurisdiction would be. I ask my colleagues this question, which is a fundamental question. Is there advantage in ambiguity? Is there some reason that we in this U.S. Senate, understanding the ambiguity of court jurisdiction, would want to leave it ambiguous? I think the answer is--which Mr. Hatch gave--that some of our people think they ought to have jurisdiction and some think they should not have jurisdiction so, therefore, we leave it ambiguous and hope to get the votes of both sides. I submit that as a political matter on the floor of this Senate that is likely to do you more harm than good. There are some on this side of the Senate who, just as recently as 10 minutes ago, said the outcome of the Johnston amendment will influence their vote on this matter. There may be some on the other side of the aisle who feel differently. friends on the other side of the aisle who are supporting this amendment check with their Members and see how many you lose by making clear the most fundamental question in this amendment. Are there really people in this Senate who would vote against the amendment because you cleared up an ambiguity? I do not believe so. But there may be some on this side of the aisle who recognize the pernicious, difficult effect of this amendment--no less authority than former Solicitor General, Judge Robert Bork, said the following, in a 1983 article: The result would likely be hundreds, if not thousands, of lawsuits around the country, many of them on inconsistent theories and providing inconsistent results. By the time the Supreme Court straightened the whole matter out, the budget question would at least be 4 years out of date and lawsuits involving the next 3 fiscal years would be slowly climbing toward the Supreme Court. Judge Bork is giving nothing but common sense. Everything the Federal Government would do would be subject to litigation. And, as Judge Bork says, thousands of lawsuits matriculating their way up to the Supreme Court, inconsistent results, and in the meantime what happens to this country? There would be bond issues which are subject to doubt. What attorney would issue an opinion on a bond issue that was clouded by a Supreme Court or by a district court case? There are so many other things that this Congress does with respect to issuing debts, making contracts--all would be unclear because we would not know what the jurisdiction of the court was. To those who say that the court needs to be involved, I say the Congress, under this amendment, has that power. To the extent that Congress specifically gives to the court the power to get involved in the balanced budget amendment, we have the ability to do so. And we may wish to do so. We may, for example, wish to limit them to declaratory judgments. We might wish to limit them to interpreting the words of the Constitution, determining what an outlay is, what a receipt is, et cetera. We may want to give them injunctive power. We may want to limit their ability to raise taxes. In fact, on the Republican side of this aisle, there is a lot of feeling against raising any taxes, whether by Congress--there was one amendment proposed which required 60 votes to raise taxes, as part of this amendment. But you would give that power to an unelected court. So the power to raise taxes is clearly, Mr. President, something that ought to be cleared up. Or, on the other hand, we may wish to say that the Supreme Court has original jurisdiction for the purpose of considering the balanced budget amendment. In other words, we may think that the matter is so important and it requires such expeditious relief, considering the uncertainties in the bond market, the uncertainties in contractual rights, that we need to expedite that consideration by providing that original jurisdiction in the Supreme Court. The Congress under this amendment would have that power. We would be able to define those limits, provide for that expediency, and provide whatever jurisdiction or limits on that jurisdiction that we wish under this amendment. Mr. President, I ask why not do that? Why not clear up that American ambiguity? Why not make this constitutional amendment so far as we can free from litigation? Mr. President, I ask my colleague from Idaho, for whom I have great respect and affection, first of all, if he agrees with me that this is a matter which is at least ambiguous and that the weight of authority is probably on the side of saying the court has jurisdiction. Would my colleague agree with that statement?

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

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

Mr. JOHNSTON. Does the Senator have a unanimous-consent request?

Mr. JOHNSTON. Mr. President, will the Senator withhold that for just a

Mr. JOHNSTON. Mr. President, I certainly do not plan any second- degree amendments. I do not see any of my colleagues who do. So that would be suitable.

Mr. JOHNSTON. Certainly. Mr. President, there is no intent at all to delay. All amendments are important. But this is one that I hope will pass and that my colleagues on the other side of the aisle will accede to. But in any event, we will yield back to the extent we do not use the time.

Mr. JOHNSTON. Mr. President, that is acceptable.

Mr. JOHNSTON. My colleague made a powerful speech--and I really mean that--for a balanced budget. But I do not understand him to be saying that the court ought to be the one to order a balanced budget, to order a tax increase, or to order spending cuts; am I correct in that?

Mr. JOHNSTON. Will the Senator yield for a question?

Mr. JOHNSTON. Will the Senator yield?

Mr. JOHNSTON. No, but it dealt with the power of Federal courts to order taxation, which was what his concern was, which is what my concern is, and my amendment would prevent that. And why not do that?

Mr. JOHNSTON. Mr. President, I yield to the Senator from Idaho.

Mr. JOHNSTON

Mr. JOHNSTON. Mr. President, I am proud to introduce a bill for the relief of Maj. Nguyen Quy An and his daughter, Nguyen Ngoc Kim Quy. Major An, a former South Vietnamese helicopter pilot, was awarded the Distinguished Flying Cross for risking his own life to save four American servicemen in Vietnam in 1969. Two years later, his helicopter was hit by enemy fire and went down in flames while he was on a mission in Vietnam's central highlands. Major An managed to land the aircraft safely, saving himself and his crew; however, his arms were severely burned and had to be amputated by American doctors. He was imprisoned in a Vietnamese reeducation camp for 9 weeks, but was released because he was considered worthless without his two hands. Major An attempted to escape Vietnam by boat three times, but each time he was captured, and he spent 17 months in jail for the escape attempts. Mr. President, last January, Senators Simpson, Mathews, Hatfield, Specter, Nickles, Bennett, and myself gave Major An and his daughter refuge on an Air Force plane from Ho Chi Minh City to Bangkok. One of the most touching moments I have ever experienced was the thrill of announcing to Major An that our plane had cleared Vietnam's airspace and hearing everyone in our delegation and the military escorts clap and cheer. Major An and his daughter are currently in this country on humanitarian parole. In the 103d Congress, I introduced legislation cosponsored by Senators Mathews, Hatfield, Specter, Nickles, and Bennett for the relief of Major An and his daughter. Unfortunately, this bill was not acted on last year, so I rise today to submit new legislation for their relief. I hope my colleagues will join with me in recognizing the heroic actions of Major An and will reward him for his bravery by giving him and his daughter the opportunity to reside permanently in the United States.

Mr. JOHNSTON

Mr. JOHNSTON. Mr. President, I am pleased to cosponsor, along with Chairman Murkowski and Senator Lott, the Department of Energy risk Management Act of 1995. This bill builds upon work that I began in April of 1993, when I offered an amendment to the EPA Cabinet bill that would have required risk assessment and cost/benefit analysis with respect to EPA regulations. That amendment passed the Senate by a vote of 95-3. However, it did not become law because of the opposition of environmental advocacy groups and several House committee and subcommittee chairmen. I then spent nearly a year working with those who had concerns about the amendment. The result was a revised amendment, supported by Senators Baucus and Moynihan, that met every legitimate concern. In May of last year, I offered the revised amendment to the safe drinking water bill, and it passed by a vote of 90-8. That simple amendment would have required EPA to do a risk assessment and cost-benefit analysis when preparing regulations that have an impact on the economy of $100 million or more. As part of the process, the amendment provided that the Administrator must certify that the best reasonably obtainable science was used, that the regulation would actually reduce the risk addressed, that the regulation was the most cost-effective alternative, and that the benefits of the regulation justified the costs. It changed no environmental laws, and created no new causes of action. It was simply a truth-in-regulating provision. Unfortunately, environmental advocacy groups and certain members of the house continued to oppose the revised provision, and refused to pass the safe drinking water bill with my amendment. As a result, the safe drinking water bill died along with the amendment. This, in my opinion, was one of the sorriest chapters of the 103d Congress. The Republicans then picked up the risk assessment and cost-benefit issue and included it in their Contract with America. As a result, it has become a high Republican priority, and is due to be acted upon during the first 100 days of this Congress. risk issue is now receiving, and fully agree that legislation should be enacted promptly, I urge my Republican colleagues to not get carried away. If we do this right, we will inject much-needed discipline into the process of setting environmental priorities. But if we go too far, we will bring the regulatory process to a grinding halt, a result that is not in the best interest of the public or the regulated industries. The bill we are introducing today is narrowly drawn to apply only to the cleanup activities of the Department of Energy, such as those at Hanford, WA, and Rocky Flats, CO. We drafted the bill in this manner because the cleanup of DOE weapons sites is one of the toughest issues facing the Energy and Natural Resources Committee, and Chairman Murkowski and I want to focus the Energy Committee's attention on the need for risk assessment and cost-benefit analysis in prioritizing that cleanup effort. We feel that the cleanup problem at Department of Energy facilities is a perfect example of our inability to set rational priorities when it comes to environmental protection. Currently, we are spending $6 billion a year of our constituents' money and accomplishing virtually nothing in terms of actual cleanup. If we can set risk-based priorities for the cleanup of those facilities, and then implement those priorities in a cost-effective fashion, that would be a major accomplishment. This is not to say that Chairman Murkowski, Senator Lott, and I feel that risk assessment and cost-benefit analysis should be applied only to the cleanup of Department of Energy facilities. Chairman Murkowski and Senator Lott will soon introduce an amendment to the bill, which will follow the bill to the Energy Committee. The amendment will apply the requirements of the bill to all Federal agencies, including EPA. The bill and the amendment will then be the subject of hearings in our committee. Although I agree with the thrust of the amendment, I chose not to be a cosponsor for two reasons. First, I want to reserve judgment on whether risk assessment and cost-benefit analysis should be required of all Federal agencies. I am confident that they should apply to EPA and the Department of Energy, but I think we need to carefully examine the issue of applying those principles to all other Federal agencies. Second, and perhaps more important, I am concerned about the judicial review provision that Chairman Murkowski and Senator Lott are expected to include in their amendment. That provision states, in part, that, Any decision, regulatory analysis, risk assessment, hazard identification, risk characterization, or certification provided for under this act is subject to judicial review in the same manner and at the same time as the underlying final action to which it pertains, * * * My concern is that this provision may lead to a substantial increase in litigation. As my colleagues may recall, the judicial review provision that I included in last year's amendment was quite narrow, and I remain convinced that more litigation hurts rather than helps our efforts to set rational environmental priorities. Therefore, Chairman Murkowski, Senator Lott, and I agreed that we would not include a judicial review provision in our bill, and that I would not cosponsor the amendment containing their judicial review provision. Instead, we will continue to study this crucial issue, with the expectation that we can resolve it before reporting a bill. I also want to briefly explain why the bill has no dollar threshold. Last year, my amendment applied only to EPA regulations that have an effect on the economy of $100 million a year or more. The bill we are introducing today, however, does not contain a dollar threshold because the cleanup activities of DOE are so easily divided into small increments. In other words, there was concern that even a relatively low threshold could be evaded by dividing a cleanup plan into units that fit under the dollar threshold The issue of the appropriate threshold, both as to DOE cleanups and as to regulations issued by other agencies, is one that will need careful examination when we hold hearings on this legislation. Mr. President, it often takes more than one Congress to enact important legislation, and this matter has proven to be no exception. In a recent article entitled ``Congress Discovers Risk Analysis,'' Terry Davies of Resources for the Future begins by stating that: The 103d Congress, which concluded in November 1994 in a blaze of partisan bickering, will be forgotten for many reasons by those interested in environmental policy. With the exception of creating a new national park in the California desert, Congress failed to take action on a long list of environmental issue. However, the 103d Congress will be memorable on at least one environmental count: it was the Congress that discovered risk analysis. Now that we have discovered risk assessment, I urge that it is the task of the 104th Congress to legislate on the subject with all deliberate speed. Given that we spend almost $150 billion a year on environmental protection, we cannot afford to delay in setting priorities based on the extent of risk posed to the public and the environment. I ask unanimous consent that Mr. Davies' article be included in the Record.

Mr. JOHNSTON

Mr. JOHNSTON. I thank the Chair. (The remarks of Mr. Johnston pertaining to the introduction of S. 333 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. JOHNSTON

Mr. JOHNSTON. What I really have in mind is what is the limit of the President's impoundment authority under this amendment?

Mr. JOHNSTON. Under this amendment, if this amendment passes?

Mr. JOHNSTON. If this constitutional amendment passes and becomes the law of the land and the President takes the oath to uphold this Constitution----

Mr. JOHNSTON. Mr. President, I would like to pose the question.

Mr. JOHNSTON. If the Senator assumes that this amendment gives to the President that line-item veto, I assume that the Senator also assumes that that power is without limitation; that is to say, if the President has the authority under this amendment to balance the budget if Congress has failed to do so, then the President can take whatever part of the budget he wants and impound it without limitation. He can impound Star Wars, he can impound Social Security, he can impound railroad retirement, or any part to any degree of the Federal budget. Would the Senator agree with me on that?

Mr. JOHNSTON. Will the Senator yield for a question?

Mr. JOHNSTON. Will the Senator from California yield for a question?

Mr. JOHNSTON

Mr. JOHNSTON. Mr. President, today I am joining with Senator Bennett and Senator Bumpers in sponsoring the National Park Service Concession Policy Reform Act of 1995. The legislation that we are introducing today is very similar to a bill which passed both the Senate and House last year by overwhelming margins but failed to clear the Senate in the final days of the 103d Congress. This legislation, which is supported by the Department of the Interior as well as a number of other conservation and park user groups, would correct the many deficiencies of the 1965 act which currently governs concession operations inside units of the National Park System. It would end the granting of a preferential right of renewal to an incumbent concessioner; it would end the granting of a preferential right of renewal to an incumbent concessioner; it would reformulate the method by which possessory interest is valued; it would establish a competitive bidding procedure to ensure competition and that the Government receives fair value for the privilege of doing business in our national parks; and it would provide that franchise fees and other revenues collected from concessioners are available for use in the parks rather than simply returned to the Federal Treasury. In this regard, I am pleased that the bill we are introducing today includes language which I offered as an amendment during the committee's deliberations last year which would authorize individual park units where franchise fees could be deposited by the concessioner and used at the direction of the Secretary of the Interior for badly needed projects in the parks. This practice is currently followed in several parks, most notably the recent Yosemite contract, and has proven very successful. I look forward to working with Senators Bennett, Bumpers, and others who were supportive of our efforts last year, and hope we can enact this measure early in this Congress.