John Kerry

Mr. KERRY

Mr. KERRY. Mr. President, I would like to begin by sharing with our colleagues a statement by the Vice President this afternoon: This afternoon, the Senate will consider shutting off debate on the Dole regulatory reform bill. I urge Senators to reject the motion and continue debate. The bill sells out to special interests and puts the health and safety of all Americans at risk. It creates more bureaucracy and more loopholes for lawyers and lobbyists to challenge and weaken health and safety standards. In essence, it threatens the progress we have made over the past 25 years to protect us from unsafe drinking water, contaminated meat and dangerous workplaces. The American people expect and deserve better. The President supports passage of true regulatory reform legislation. However, this bill fails to achieve it. It should be opposed if it cannot be changed, and should it come to the President's desk, he would veto it. So the choice here, Mr. President, is whether we go through an exercise which will end up in a Presidential veto or whether we recognize what is really the choice here. The Senator from Louisiana suggested the choice is whether you want regulatory reform or not. That is not the choice before the U.S. Senate. The choice is whether you want to have a bill that, in the guise of regulatory reform, tears at the capacity of the regulatory process to work and undoes years of progress with respect to the health and safety and environment on behalf of special interests, or whether you want to continue to negotiate in an effort to come up with a bill that is fair and reasonable. Let me answer the questions of the Senator from Louisiana himself. He suggested to the Senate the question, can you review existing rules, and said, under Dole-Johnston, you can, but under Glenn you cannot. That is not true. That is just not true. Under the Glenn bill, you have the ability to get on to the schedule through the agency, and even if the agency turns you down you have the ability to have judicial review, and if judicial review turns you down, you have the ability to come before the U.S. Congress and have the Congress put you on the list. That is review: Congressional review, judicial review, and agency review. The Senator suggested that on decisional criteria, there is somehow a gulf between both sides. He said that in Dole-Johnston there is decisional criteria, but in Glenn-Chafee there is not. But the truth is, we have come to a point of compromise on decisional criteria, and we have given by accepting something that is not even in the Glenn- Chafee bill. We put into our compromise an acceptance of the concept of decisional criteria so that you will, for the first time, have risk assessment and cost evaluation. That is a giving by both sides, which is reflective of what the compromise process ought to be. The last question the Senator asked was whether or not you can review in the end. He suggested that somehow we are trying to set up a process that will preclude review of the cost evaluation or the risk assessment. I say to my friend, that is not accurate. We are prepared to accept, and have accepted, the concept of cost analysis review taken into the whole record and judged for arbitrariness and capriciousness, and we have accepted the notion of risk assessment being reviewed as part of the whole record and taken into consideration for arbitrariness and capriciousness. What we disagree on to this day is whether or not the language set out in the Dole-Johnston bill sufficiently precludes the procedural aspects from being thrown into the mix in a way that increases more regulatory process. Mr. President, I have shown this before. I show it again because it is not heard. If Philip Howard's book about the death of commonsense suggested that the current regulatory process represents that death, this bill is the funeral, not just for commonsense but for the progress we have made on the health and safety and the environment, because it creates 88 different standards, formal standards, which will become part of the record which will then be subject to the review that the Senator will not assist us in guaranteeing will draw the distinction between procedure and the overall record. I respectfully say to my colleagues, this is not a vote about whether you want regulatory reform or not. It is a vote about whether or not we are going to continue to put this bill in a position to become a sensible bill that represents the resurrection of commonsense as opposed to its death. This bill, in its current form, has more petition processes than any agency could conceivably live under. If you are in favor of streamlining Government, if you are in favor of reducing bureaucracy, if you are in favor of taking the maddening chase of Washington out of the process, then you should not vote for cloture, because the fact is that this bill has such a tier of petitioning processes with so many requirements for evaluation, with so many time periods of a fixed certain time that you are going to have this bureaucracy tangled up on top of each other without the ability to serve the American people, which is their purpose.

Mr. KERRY

Mr. KERRY. Let us look at the rulemaking petition process. Here is what it says: Each agency shall give an interested person the right to petition. So we are opening up to everybody in America the right to petition. For the issuance, amendment or repeal of a rule, for the amendment or repeal of an interpretive rule or general statement of policy or guidance, and for an interpretation regarding the meaning of a rule, interpretive rule, general statement of policy or guidance. There are 14 different things that somebody can come in and just petition, ``I want this changed.'' The agency is then required to grant or deny a petition and give written notice of its determination to the petitioner with reasonable promptness but, in no event, later than 18 months afterwards. So all of these requests could come in. You have a fixed period of time to provide the answer. You have no additional personnel to do it. The written notice of the agency's determination will include an explanation of the determination and a response--

Mr. KERRY. I would like to finish the point. I will be happy to yield for a question on that, sure.

Mr. KERRY. This is an example of how close but in a sense how far because the 88 standards that are here are not currently in the law. In the current law for rulemaking there is one page that describes what an agency has to do to make a rule. You talk about what this grassroots revolution is all about in an effort to kind of get the process closer to America and less government; one page is the current law. This bill creates 66 new pages of requirements. That is more Government.

Mr. KERRY. Let me point to another kind of problem just to kind of articulate, I think, the good faith with which we are framing some of these issues. There is a rulemaking petition process. I have agreed, Senator Glenn has agreed, and Senator Levin has agreed that all of us think any American entity, a corporation, some kind of environmental group, that feels aggrieved by a decision ought to have some means of redress for that sense of grievance. They ought to be able to come into the agency and say, ``Hey, wait a minute. This is a crazy rule. We want you to be able to review this rule.'' We agree with that. I am sure most of us would say that is reasonable. We do not want Americans running around, companies or individuals, feeling as if there is no path to a legitimate review. What we do not want, Mr. President, is an unlimited Pandora's box for gaming the system, where one company can come in and bring a petition, then their cohort friend company could come in and bring a petition, then another company associated in the same industry but not the same could come in and bring a petition. Under the requirements of the bill--I say to my friend in the chair and others--this is not going to reduce Government. This is not going to streamline the agency process. This is not going to lift the burden of regulation. It is going to create far more gridlock than we have had before because you are going to take a fixed number of employees with a shrinking budget, give them greater responsibility to answer petitions, greater responsibility to go to court, to the judiciary, greater responsibility to do risk assessment, greater responsibility to do cost evaluation. And there will be less people to do it.

Mr. KERRY. I do not disagree with what the Senator just said. But he did not in effect answer the problem that I posed. Now we have language that we have given to the Senator. The Senator has accepted one form of language, but the Justice Department tells us that we have not cured the problem we are talking about. We have given him new language which we think cures it.

Mr. KERRY

Mr. KERRY. I say to my friend, I am not the prisoner of the history of the last 3 years. I hope he is not. I do not think the U.S. Senate-- --

Mr. KERRY. There is nothing in here about strike. This amendment is exclusively what you do if you withdraw. I respectfully suggest to my friend from Connecticut, I agree with everything he just said. Everything he just said is a wonderful statement of what is wrong with our current policy. The question is, is this a replacement for that policy? And I respectfully suggest to my friend this is not a policy. This is the last step. This is the last step. If the President of Bosnia says UNPROFOR out, under the law UNPROFOR has to get out. So absolutely, unequivocally, I suppose you have no choice morally but to lift the embargo then because you cannot keep an embargo against some people while the others have weapons to kill them.

Mr. KERRY. There is nothing in this amendment about strike.

Mr. KERRY. Mr. President, I ask my colleague if he would be interested in entering into a little bit of a colloquy maybe simply because we all come to the floor and the debate seems to pass by itself in a way. I think it would be helpful if we could talk through it a little bit. [[Page S 10279]] I ask my colleague if it is his judgment that withdrawing UNPROFOR and lifting the embargo, which is essentially the heart of what is in the Senator's amendment, constitutes the policy of choice? Is that what we as a country and we as Senators want to put forward as our first choice policy here, to simply say that if the President of Bosnia says UNPROFOR get out, we lift the embargo, or if UNPROFOR is out, we lift the embargo? My question is, is there not really a precursor to that, which is in effect a policy that wants to prevent the safe areas from being overtaken, a policy that wants to prevent women from being raped as a matter of war strategy, a policy that wants to guarantee the delivery of humanitarian assistance? Is that not rather the policy of choice for a great nation and a Western civilization, a free people?

Mr. KERRY. There is no strike. There is no strike.

Mr. KERRY. I am prepared to suggest there is hope, and we should offer it. I am prepared to suggest there is a precursor policy to what the Senator is offering. The Senator is offering something I would vote for if it was the final step. I do not believe we have reached the final step, because I have not given up on the notion that Sarajevo and Gorazde and safe areas could [[Page S 10281]] be preserved. I think that is a two-bit tinhorn bunch of thugs that make up an army, and the reason they have been able to kick people around that country is because the blue helmets have been lightly armed and have, basically, been targets for hostage taking and because we-- we--have been consistently trying to have a no-risk policy. There is no such thing as a no-risk policy in Bosnia or anywhere. When you put on the uniform of the United States military, you assume the possibility of going to fight. Ever since Vietnam, we have been a country that has been unwilling to understand that risk and scared to take it in certain situations. President Bush went through extraordinary hoops with the Joint Chiefs of Staff in a remarkable series of steps, and with great leadership, I will add, to put together a capacity for this country to recognize its interests and send people into harm's way. President Reagan did it in Grenada. President Bush did it again in Somalia. President Clinton did it in Haiti. You put on the uniform, there is a risk. I hate to say it, it is a tragedy, but we lose young people for merely the putting on of the uniform. Every month, every week in a training accident, in a catapult that does not work correctly on an aircraft. That is a risk. I believe that the defense of NATO, I believe that the principles that are at stake here have been, for the whole 3 years that the Senator has said, rightfully on the table and it has been too long in properly coming to this Chamber to be articulated. But my sense is that I think the Senator has a correct statement. If the President did say get out, of course you would lift the embargo. If UNPROFOR is out, of course you would lift the embargo, but that is not a policy. That is truly a final statement of where you are when all else is exhausted, and this Senator does not believe all else is exhausted, because UNPROFOR is still there, because we are still here, because the French are prepared to fight and because we should all stand up and offer the leadership that suggests that Pope John Paul is not going to be proven correct, that civilization is just going to stand aside and accept a defeat. I do not think we need to do that, I say to the Senator from Connecticut, and I think we ought to stand up and assert the rights-- look, if we cannot assert the notion that humanitarian aid is going to be delivered, and if we cannot assert the notion that women and children are not going to be blown up when they go to a water fountain to drink, and that men and women are not going to be blown away like clay pipes in a shooting gallery, if we cannot assert those notions, what are we doing? What are the millions of dollars of NATO for? Who are we? If we cannot remember the lessons of World War II only 45 years later, then something is wrong. I suggest, respectfully, that we have the ability to say to the Serbs, ``We're not here to mix in your war. If you want to go out there in the fields and fight, you go do it, and we're not going to get in your way. But you're not going to rape women and you're not going to break the laws of warfare and you're not going to kill innocent women and children and pick off people in areas that the United Nations and the world has called a safe area.'' I agree with the Senator. There is ignominy in the last years. But the admission of that should not bring you to simply say we are going to go away and let you guys duke it out in the worst of circumstances. I believe there is a first policy, and the first policy is to try one last time to make this mission work. If it means take it away from the United Nations, take it away from the United Nations. If it means those countries willing to stand up do it together, then do it that way. But we cannot any longer--I agree with the Senator--we cannot any longer remain the prisoners of this extraordinary political, weak, haphazard, damaging policy that is destroying our capacity to control our own destiny and, most important, the destiny of innocent people.

Mr. KERRY. I say to my friend, because it is a half solution.

Mr. KERRY. Let me say to my friend, if this is not the moment to talk about why this is an incomplete policy, then what is? I mean, the fact is that the President has not to this day asked UNPROFOR to leave. The President of Bosnia has not said, ``Get out of here.'' So, of course, they are asking to lift the embargo. The best of all worlds is to keep UNPROFOR and have no embargo. I understand that, and so does the Senator. But the Senator also understands why he has not asked UNPROFOR to get out, because UNPROFOR has reduced the number of deaths, because UNPROFOR has provided some safety and succor. And the question is not whether we ought to now trigger the absolute certainty of UNPROFOR being withdrawn, the question is whether or not we ought to make it work. I totally agree with the Senator's complaints about the weakness and the unfairness and the total inconsistency of this equation of the last years. It has been horrendous.

Mr. KERRY. Why----

Mr. KERRY. Let me finish. It seems to me the Senator from Connecticut and all of us ought to be defining for the country and the world what is at stake here. Pope John Paul said it the other day, that the world is watching, you know, that civilization is standing by and experiencing a great defeat. To the best of my historical recollection, most of what World War II and World War I were about are principles that are fundamentally involved here. Now, I am not suggesting that they rise to the level of threat that we ought to put American troops on the ground. I have never said that. I believe this is fundamentally the backyard of Europe, with respect to a localized kind of action, and they have got to bear the brunt on the ground. And the French have indicated a willingness to do that. The British seem to be dragging. But one of the reasons they are dragging is that we are not indicating our willingness to be sufficiently supportive with respect to air power and other things. Now, I will tell you something. I think we ought to say that the United States of America is prepared to run the risk of putting American air people at risk, in harm's way, in the effort to back up our allies on the ground sufficiently to be guaranteeing only one thing--a minimalist capacity to deliver humanitarian assistance and guarantee safe areas. Now, if the Western World and civilization cannot come together around the notion that a safe area is a safe area and we ought to stand up for it, and if we cannot come up around the notion that the basic laws of warfare ought to be adhered to, and if we are going to walk away in the face of thugism, we will ignore the lessons of history and invite future confrontation and future questions about our leadership and so forth. I think the Senator agrees with that. So the issue here is, why not change the rules of engagement? Why not pull this away from the dual- key of the United Nations? Why not create a structure where the United States can control its destiny with its allies and not be subject to the politics of Mr. Akashi and Mr. Boutros-Ghali? Why not do what we effectively did in Desert Storm, where we ran the show or undertook that responsibility, and stand up for something before we turn around and say that all we can do is wash our hands and allow people to get weapons several months from now, when in the intervening months the Serbs will very clearly use the time? And if you think you have seen bloodshed and refugees on CNN in the last few days, wait until you see what happens on that course of policy.

Mr. KERRY. I agree. But therein lies the question of leadership and of resolution, not, it seems to me, in a sort of final statement of what you do if nothing else can happen. It seems to me my friend--I think we are talking the same language but coming at it from a different point. My sense is that the problem has not been the defined goal of UNPROFOR. The problem has been the implementation of that goal, the dual-key requirements for airstrikes, the absolute ineffectiveness of the troops on the ground who are armed not to fight back or to enforce most anything but are really so lightly armed as to be invitations to be taken hostage. The question I think the U.S. Senate ought to be asking itself more appropriately is not what do we do to wash our hands of this situation, which, incidentally, is more complicated than that. And I think the Senator from Connecticut knows that. He is one of [[Page S 10280]] the clearest thinkers in the U.S. Senate. If the Bosnian President can effectively say, OK, I want UNPROFOR out, and the Senate now passes a resolution saying one of the circumstances under which we will lift the embargo will be if the President of Bosnia says, UNPROFOR, get out, well, the President is pledged to put 25,000 American troops on the ground in order to help UNPROFOR get out. If I were the President of Bosnia, and I were kind of backed up against the wall, I might just think of saying to myself, ``Boy, how do I get the United States over here?'' So, he says, ``UNPROFOR get out.'' All of a sudden there are 25,000 troops in Bosnia. And then you might just want to--I can remember, you know, from the days of being in Vietnam, when the North Vietnamese would dress up like South Vietnamese and attack other people. I can well imagine Moslems putting on the uniforms of the Serbs and attacking Americans and drawing the United States into retaliation against the Serbs, or making it extremely difficult for America to get out in a way that then entangles us. I mean, why give the President of Bosnia the choice of putting 25,000 American troops on the ground in Bosnia- Herzegovina?

Mr. KERRY. Let me say to my friend----

Mr. KERRY. But that does not mean we ought to continue to do that today. If the policy of choice as the Senator has acknowledged is to stand up, then I ask the question, why do we not stand up today? Sarajevo has not yet fallen. Gorazde has not yet fallen. Zepa may fall. It is in the process. Are we so weak, are we so without guts and policy that we are going to come in here and ratify an amendment that effectively says if the Bosnian President says, ``Get out,'' or UNPROFOR is out, is that all we have to offer in the United States Senate, an epitaph rather than a policy?

Mr. KERRY

Mr. KERRY. Mr. President, I see the Senator from Rhode Island wants to go forward for a few minutes. I ask unanimous consent that he proceed for 4 minutes, and that I then be recognized for 5 minutes.

Mr. KERRY. I yield for a request.

Mr. KERRY. Mr. President, I congratulate my colleague from Rhode Island for his comments, and also the Senator from Connecticut, who in a detailed fashion has summarized why this bill is not prepared to be passed on by the Senate, and why colleagues sought to oppose cloture at this point. Mr. President, this bill flies directly contrary in its current form to the principles espoused by Philip Howard in ``The Death of Common Sense,'' and to the whole concept of reform. Reform is supposed to create simplicity. It is supposed to create fairness. It is supposed to reduce the paperwork and reduce the opportunities for litigation. This bill in its current form is a lawyer's and an accountant's dream. Mr. President, here is list of 88 new opportunities for litigation in the Dole-Johnston bill before us. This bill is supposed to simplify. We keep hearing in the U.S. Senate about how there is too much litigation. However, there is no such opportunity for litigation in the current law for these items. But under this bill, here are the opportunities for litigation--88 new opportunities--for lawyers to dream up ways they can come into court. This is not speculative. This is by the very language written in this bill. For instance, section 622, (c)(2)(C)(1), ``Did the agency adequately identify alternatives that require no government acts?'' [[Page S 10133]] If somebody wants to sue suggesting that they did not, all they have to do is make the claim, come into court, and that review will take place. ``Did the agency adequately describe attempts to verify quality, reliability and relevance of science?'' Section 622, (d)(2)(A)? I can go through the entire bill where, because they are opening up procedure to review--not just substance but procedure--you are going to tie up an agency in court. Mr. President, they will come back and say, ``No, no, no, we do not want the procedure to be reviewed.'' And they will suggest that there is language here that precludes that. I respectfully say that is not the case; there is sufficient ambiguity that lawyer-legislators on both sides are arguing about it. And the question is, therefore, if their intent is not to create that avenue of judicial review, if their intent is to do as they say, to preclude it, then why do we not make it clear in this legislation? Every attempt to try to make it clear has been rebuffed. So I respectfully suggest that, just as in the area of least cost alternative where they suggest that there is not a rigid rule precluding judgment and discretion by the agency head, there will be sort of discretion. We are saying no. The language of this bill provides a rigidity, and we do not want that rigidity in this particular legislation. In addition, I would like to point out that in today's Washington Post, there was an article that talked about being buried by paperwork. It had the amounts of money, and how the regulatory paper trail leads nowhere. But interestingly enough, almost every dollar in this article was in the SEC and the IRS, both of which are exempted under the Dole- Johnston bill. So the very place where you find the problem, they have exempted it. Then they come in and say, well, there is $500 billion worth of cost to our economy. Yet the GAO has shown that study is totally faulty, that in point of fact there is only about $225 billion total cost to a $1.6 trillion economy. All the additional costs that they throw into their pot are costs that are related to what we call transfer payments and process costs that have nothing to do with the regulatory process itself. So, Mr. President, if we want to simplify, which we do, you have an alternative. It is the Glenn-Chafee, or Chafee-Glenn bill. It is similar to a bill that came out of committee 15 to nothing in a bipartisan form. That is a bill which has review. It is a bill which has a cost-benefit analysis. It is a bill that has risk assessment. But it does not create a rigid rule that denies discretion or judgment to the agency heads who deal with these issues.

Mr. KERRY. I am happy to yield for a question.

Mr. KERRY. Yes.

Mr. KERRY. The Senator is not only aware of it, but that is the standard which we would embrace in this bill. But because of the judicial review standard that the Senator from Louisiana is pressing and because of the petition process which the Senator from Louisiana is pressing, we totally inundate the agencies. What is going to happen here, Mr. President, is that a process that is supposed to simplify is going to swamp the agencies. The EPA currently has a very clear graph that shows how many hours go into rulemaking from business. Business currently spends about 70,000 hours putting together the reports for the process of rulemaking. Under this process, you are going to triple or quadruple the amount of industry input. You are going to at least double the governmental input, and there will be no commensurate increase in resources or budget. The effect will be they will be swamped, because there is a clever little clause in here that says if you do not get your review done in 3 years, we are going to throw the rule out. So first they swamp the agency. Then they provide a whole bunch of opportunities for litigation. And they say if you have not performed your responsibility within that span of time, which is impossible, we throw the rule out anyway. That is stripping America of 25 years of effort to try to have a reasonable process of regulation. I wish to give all colleagues time here, but I just say, Mr. President, I am prepared to vote for a reasonable reform bill that has a reasonable judicial review standard, a reasonable cost-benefit analysis and risk-assessment approach, but that does not tie the Government in knots and that does not take the current 1-page Administrative Procedure Act approach to rulemaking and add an additional 64 new pages from the Dole-Johnston bill. That is not simplification. That is not reform. That is an opportunity for lawyers to have a field day in court and to prevent us from ever having a rule that addresses the public safety and health needs and environmental needs of this country. Mr. HATCH addressed the Chair.