Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, there has not been much conversation about one of the judicial nominees pending before us. I did want to make a few comments on his behalf. The reason for the lack of comments is that I believe he has the unanimous, bipartisan support of everyone here in the body. And I appreciate that because I, too, enthusiastically endorse the nomination of U.S. Magistrate Judge Barry Silverman of the State of Arizona to the Ninth Circuit Court of Appeals, and I would like to make a few comments on his behalf at this point. Judge Silverman brings a proven judicial track record to this position. For the past 2\1/2\ years he has served as a magistrate judge on the United States District Court for the District of Arizona, my home State. For over 10 years prior to that, he was a superior court judge in Maricopa County. While on the superior court bench, he rendered superior service in all aspects of his civil, criminal, juvenile and domestic relations assignments. In addition to his time on the bench, Judge Silverman spent 5 years as court commissioner for the Superior Court of Arizona, Maricopa County. Throughout his distinguished judicial career, Judge Silverman has earned the respect and admiration of fellow judges and the advocates who have appeared in his courtroom. For example, in 1991, Judge Silverman received the Henry Stevens Award, which is given annually by the Maricopa County Bar Association to the current or former Arizona trial judge ``who reflects the finest qualities of the judiciary.'' Similarly, in 1994, the Maricopa County Committee on Judicial Performance indicated that Judge Silverman received the highest percentage of superior ratings from lawyers, litigants, witnesses, and court staff in all categories of performance reviewed. Also, in 1994, Judge Silverman's court division was honored as the judicial division of the year by the Maricopa County Superior Court Recognition Committee. Incidentally, I should say that Maricopa County is the county in which Phoenix is located, the capital of our State. In addition to his regular judicial duties, Judge Silverman has advanced the legal profession through service on the Supreme Court of Arizona Judicial Ethics and Advisory Committee, the Committee on Judicial Education and Training, and the Committee on Professionalism. He also chaired a Committee to Study the Criminal Justice System in the Arizona Superior Court in 1993, and the Governor's Committee on Child Support Guidelines. Judge Silverman has shown his commitment to the United States Constitution and the rule of law by cofounding the Sandra Day O'Connor Prize for Excellence in Constitutional Law at the Arizona State University College of Law. Judge Silverman's academic credentials are equally impressive. He graduated summa cum laude from the Arizona State University College of Law in 1976 and was subsequently honored by his alma mater twice, once in 1994, when the college of law presented him with its ``Outstanding Alumnus Award,'' and again in 1997 when he received the prestigious ``Dean's Award.'' In short, Mr. President, I believe Judge Silverman meets the highest of standards required for our Federal judges, and I have been very privileged to support his nomination as it has proceeded through the process and come to the floor of the Senate. I urge all of my colleagues to support the nomination of Judge Barry Silverman for the Ninth Circuit Court of Appeals. Allow me to conclude, Mr. President, with this observation. It has been a pleasure to work with the White House on this nomination. From the time that his name came forward, they worked diligently to conclude the FBI process, which does take some time. We received from the White House the Sunday before Congress adjourned in November the file for Judge Silverman and the committee was able to get that file in 1 day, the following Monday. Orrin Hatch, the chairman of the Judiciary Committee, who has been criticized for holding up some nominees, I must say, deserves a great deal of credit here for personally conducting the hearing for Judge Silverman. And then the following day--this is now 3 days after we received the file--scheduling an executive session of the committee so that we could send his nomination to the full Senate floor. Chairman Hatch and I then requested the majority leader on the last day of the session in November to clear this nomination so that the ninth circuit could receive him and have his services. Unfortunately, the democratic leader was not able to clear Judge Silverman on the democratic side and therefore about 2\1/2\ months, unnecessarily, the ninth circuit was without a judge in this particular position. But I am particularly pleased that he is before us today and that we will very soon have an opportunity to vote and to confirm Judge Silverman for the Ninth Circuit Court of Appeals.

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

Mr. KYL

Mr. KYL. Mr. President: I would like to announce for the information of the Senate and the public that an oversight hearing has been scheduled before the Subcommittee on Water and Power of the Committee on Energy and Natural Resources to receive testimony on the implementation by the Northwest Power Planning Council of the 1996 amendment to the Northwest Power Planning Act requiring accountability in and scientific peer review of projects to be funded through the Bonneville Power Administration's annual fish and wildlife budget. The hearing will begin at 9:30 a.m. on Tuesday, February 17, 1998 in the Lecture Hall of Washington State University, 14204 NE Salmon Creek Avenue, Vancouver, Washington. Persons interested in testifying or submitting material for the record should contact Betty Nevitt of the Subcommittee staff at (202) 224-0765 or write to the Subcommittee on Water and Power, Committee on Energy and Natural Resources, United States Senate, Washington, D.C. 20510. committee on energy and natural resources subcommittee on national parks, historic preservation and recreation

Mr. KYL

Mr. KYL. Mr. President, I have no objection. If under the previous order that is permitted, it's fine with me.

Mr. KYL

Mr. KYL. Mr. President, I am proud to support H.R. 2265, the No Electronic Theft [NET] Act which is the companion bill to S. 1044, the Criminal Copyright Improvement Act of 1997, introduced by Senator Leahy and myself. H.R. 2265 passed the House of Representatives earlier this week and now has the opportunity to obtain Senate approval and be sent to the President before we adjourn for the session. The bill is supported by the Department of Justice, the U.S. Copyright Office, and the Software Publishers Association, which is the leading trade association of the computer software industry, representing over 1,200 companies that develop and market software for entertainment, business, education, and the Internet. H.R. 2265 will help combat software piracy by closing a major loophole in federal law, which was highlighted by the case of United States v. LaMacchia, 871 F.Supp. 535 (D. Mass. 1994). Under current law, a showing of financial gain is required to prove criminal copyright infringement. In LaMacchia, the defendant maliciously pirated software which resulted in an estimated loss to the copyright holders of over $1 million in just over 6 weeks. Because LaMacchia did not profit from the software piracy, he could not be prosecuted under criminal copyright law. Because much software piracy on the Internet apparently occurs without the exchange of money, the so-called ``LaMacchia loophole'' discourages law enforcement from taking action against willful, commercial-scale software pirates out to gain notoriety, not money. In sum, this bill extends criminal infringement of copyright to include any person--not just those who act for purposes of commercial advantage or private financial gain--who willfully infringe a copyright. Specifically, the bill: (1) expands the definition of ``financial gain'' to include the expectation of receipt of anything of value--including the receipt of other copyrighted works; (2) sets penalties for willfully infringing a copyright by reproducing or distributing (including electronically), during any 180-day period, one or more copies of one or more copyrighted works with a total retail value of more than $1,000; (3) extends the statute of limitations for criminal copyright infringement from three to five years; (4) punishes recidivists more severely; (5) extends victims' rights with regard to criminal copyright infringement; and (6) directs the Sentencing Commission to determine sufficiently stringent guidelines to deter these types of crimes. H.R. 2265 is needed to help protect the interests of the entire software industry by protecting against the unauthorized copying and distribution of computer programs. In 1996, piracy cost the software industry over $2 billion in the United States and over $11 billion around the world. Mr. President, the United States is the world's leader in intellectual property. We export billions of dollars of copyrighted works every year. Our creative community is a bulwark of our national economy. By addressing the flaw in our copyright law that LaMacchia has brought to light, H.R. 2265 sends the strong message that we value the contributions of writers, artists, and other creators, and will not tolerate the theft of their intellectual endeavors. I urge my colleagues to join me in supporting this important piece of legislation.

Mr. KYL

Mr. KYL. Mr. President, I am gratified that S. 493, the Cellular Telephone Protection Act, which would make it easier for Federal law enforcement to stop cell phone cloning, has unanimously been approved by the Senate. I expect that the bill will soon pass the House of Representatives, and be signed into law by the President. S. 493 is the first in a series of anticrime initiatives I introduced that are aimed at modernizing U.S. law to reflect changes in technology. It is estimated that the cellular telecommunications industry lost $650 million due to fraud in 1995, much of it as a result of cloning. Cloned phones are popular among the most vicious criminal element. The feature story from the July/August edition of Time Digital, ``Lethal Weapon: How Your Cell Phone Became Gangland's Favorite Gadget'' quotes James Kallstrom, head of the FBI's New York office as describing cloners as ``hard-core criminals, child pornographers and pedophiles * * * violent criminals who use technology to avoid the law.'' On September 11, Representative Bill McCollum, chairman of the House Judiciary Crime Subcommittee, held a very useful hearing on cellular phone cloning. The hearing discussed legislative proposals to combat cellular phone fraud. Representatives of the Secret Service, FBI, and DEA all testified that legislation resembling S. 493 would be helpful in thwarting cell phone cloning. The hearing revealed that cloned phones have become a staple of the major drug trafficking organizations. Anthony R. Bocchichio, of the DEA stated that, ``[International drug trafficking organizations] utilize their virtually unlimited wealth to purchase the most sophisticated electronic equipment available on the market to facilitate their illegal activities. We have begun to see that this includes widespread use of cloned cellular telephones.'' The Secret Service--the Federal agency charged with investigating cloning offenses--has doubled the number of arrests in the area of wireless telecommunications fraud every year since 1991, with 800 individuals charged for their part in the cloning of cellular phones last year. While the cell phone law (18 U.S.C. 1029) has been useful in prosecuting some cloners, the statute has not functioned well in stopping those who manufacture and distribute cloning devices. In testimony before Mr. McCollum's Crime Subcommittee, Michael C. Stenger of the U.S. Secret Service stressed the need to revise our current cell phone statute: Due to the fact that the statute presently requires the proof of ``intent to defraud'' to charge the violation, the distributors of the cloning equipment have become elusive targets. These distributors utilize disclaimers in their advertising mechanisms aimed at avoiding a finding of fraudulent intent. This allows for the continued distribution of the equipment permitting all elements of the criminal arena to equip themselves with free, anonymous phone service. Consistent with Mr. Stenger's recommendation, the Cellular Telephone Protection Act provides that--except for law enforcement and telecommunications carriers--there is no lawful purpose for which to possess, produce, or sell the ``copycat boxes'' for cloning a wireless telephone or its electronic serial number. For S. 493 to apply, a prosecutor would need to prove that an individual ``knowingly uses, produces, traffics in, has control or custody of, or possesses hardware or software, knowing it has been configured for altering or modifying a telecommunications instrument so that such instrument may be used to obtain unauthorized access to telecommunications services.'' Someone who does not know that a telecommunications device has been altered to modify a telecommunications instrument would not be criminally liable under this section. To be clear, except for law enforcement and telecommunication carriers, there is no legitimate purpose for which to possess equipment used to modify cellular phones. Representatives from the Secret Service, DEA, and FBI testified to this point at the cellular fraud hearing. As Special Agent Stenger put it, ``There is no legitimate use for the equipment such as that designed to alter the electronic serial numbers in wireless telephones.'' The removal of the ``intent to defraud'' language in 18 U.S.C. 1029 only applies to the possession and use of the hardware and software configured to alter telecommunications instruments. This narrowly targeted proposal does not apply to those who are in the possession of cloned phones. Nor does it apply to those in the possession of scanning receivers, which do have some legitimate uses. The Senate bill enjoys broad bipartisan support. Senators Cleland, DeWine, Dorgan, Durbin, Gorton, Helms, Lott, Mikulski, and Thurmond have cosponsored S. 493. And a bipartisan House companion bill (H.R. 2460) has been introduced by Representatives Sam Johnson, Bill McCollum, and Charles Schumer. I am hopeful that my colleagues will join in supporting this important piece of legislation.

Mr. KYL

Mr. KYL. Mr. President, I rise in support of the Telemarketing Fraud Prevention Act of 1997. It is long past time to punish criminals who have perpetrated fraudulent telephone scams. Telemarketing fraud swindles Americans out of $40 billion dollars every year, but one group in particular is especially hard hit: senior citizens. In fact, the Attorney General recently noted that the elderly are subject to a barrage of high-pressure sales calls, sometimes as many as five or more calls every day. In a recent Associated Press story, the chief of the Financial Crimes Section of the Federal Bureau of Investigation, Mr. Chuck Owens, discussed criminals who commits telemarketing fraud. Mr. Owens stated as follows: We estimate that, conservatively, 50% of the time, these people victimize the elderly . . . Many times you've got senior citizens who basically need the money that they've saved to continue to provide for themselves in their elder years, and we've had numerous instances where they've taken every cent. Over the past year, one especially heinous scheme has gained popularity among criminals. Past victims of telemarketing fraud are often called by a second swindler who promises to help recover the money lost in the first scam. However, once the victims turn over their recovery fees, the second swindler fails to lift a finger to help. The Telemarketing Fraud Prevention Act directs the U.S. Sentencing Commission to provide enhanced penalties for those persons convicted of telemarketing fraud, and allows prosecutors to seek even greater penalties for those who mastermind fraudulent schemes. In addition, the act requires offenders to forfeit their ill-gotten gains, much in the same manner as drug dealers are forced to turn over the fruits of their crimes. Although the original version of this bill mandated specific increases in sentencing levels, those provisions were removed during discussion with the minority in order to move this legislation forward. However, I note that the House recently approved legislation nearly identical to the original version of this bill, and I recognize that final passage of this bill must reconcile the House and Senate positions on the underlying issues. I am hopeful that the final version will contain the strongest possible deterrents for those who might consider taking up the unsavory practice of telemarketing fraud. Mr. President, this bill presents an opportunity to curb the growing problem of telemarketing fraud, a crime which is especially cruel when targeted against the elderly and infirm. We should not let this opportunity pass.

Mr. KYL

Mr. KYL. Mr. President, I wanted to give a report to my colleagues on the status of the Medicare Beneficiary Freedom To Contract Act, the so- called Medicare private contracting issue, which has been before both the Senate and House for several weeks now following the adoption of the Balanced Budget Act, which contained in it a provision which makes it much more difficult for physicians to serve patients who want to contract outside of Medicare. Let me briefly tell you what the problem is, the legislative status, and the resolution--at least as of now--that we have been able to accomplish. The issue is whether or not physicians can serve both Medicare patients and people under private contracts who are 65 years of age. Once a person turns 65, of course, they are eligible for Medicare, and most of the services they can obtain are paid for by Medicare. But occasionally, either there is a service that is not covered by Medicare, or even sometimes services that are covered by Medicare that a patient would prefer to obtain from a physician outside of the Medicare Program. For example, a constituent of mine had a condition that required the aid of a specialist in her small community. There were none available, except one person who was no longer taking Medicare patients. By the way, Mr. President, this is a common situation, because Medicare, especially for specialists, does not reimburse even up to their level of costs. So while many physicians don't want to dump their existing Medicare patient load and they want to continue to serve those patients they have been serving for a long time, they are not anxious to take on new Medicare patients. In this case, she went to the physician. He said he would be happy to take care of her, but he wasn't taking anymore Medicare patients. Her response was, ``Well, I will just pay you directly. You bill me, and I will pay you. That way Medicare will save some money, and I will get the treatment I need, and you won't have to take new Medicare patients.'' He found that the Federal Government would have deemed that to be a violation of law and, therefore, he would have been precluded from providing the services. It was in response to that kind of a problem that we created a piece of legislation that would allow patients who are 65 years of age to have the right to go to the physician of their choice and to be treated outside of the Medicare Program, if that is their choice. We passed that legislation here in the Senate. It became part of the Balanced Budget Act. And, before the act was finalized, the President indicated his desire to veto that legislation if that provision were retained. As a result, some changes were made, the most important of which was to add a provision to the act which makes it virtually impossible for patients to actually have the benefit of that freedom of choice. The provision was that a physician providing such services had to opt out of all Medicare treatment 2 years in advance. In other words, patients still had the right to go to a physician. But any physician that provided those services could not provide any Medicare services for a period of 2 years. That meant that it was virtually impossible then for physicians to serve these particular patients. In an effort to try to resolve that, we introduced the Medicare Beneficiary Freedom of Contract Act. It has almost 50 cosponsors in the Senate, well over 100 cosponsors in the House version sponsored by the chairman of the House Ways and Means Committee, Bill Archer. We hoped that we would have the opportunity to get that passed before the end of this legislative session this year. It was not to be. People in the House of Representatives did not feel that they wanted to go forward with it under the constraints of time. There were some other issues. As a result, we did not push it as an amendment to one of the appropriations bills or other vehicles by which we could have done that here in the Senate. Instead, I sought to proceed in a way that would enable us to ensure that we would make progress early next year on getting this issue resolved. Yesterday, I met with the President's nominee to head HCFA, Nancy-Ann Minn Deparle. She gave me a series of assurances of ways that they want to continue to work on this problem. I also received a phone call from Secretary Shalala providing the same assurances that we will be able to sit down and work with the administration to try to resolve this issue so that early next year we will be able to pass legislation that will solve this problem of Medicare-private contracting. In addition to that, I received some assurances from Nancy-Ann Minn Deparle that the law that goes into effect on January 1 would not affect the provision of services not covered by Medicare. It would not affect the provision of service only partially covered by Medicare--on Medicare, for example, a second mammography beyond the annual mammography covered by Medicare. It would not affect the provision of care under the Medicare Plus Choice Plan, the Medical Savings Account option, and it would not affect the ability of other physicians in a group practice to treat Medicare beneficiaries when a patient makes a private contract with one of the group practitioners. We worked on some of the other problems relating to this in addition to try to develop legislation next year that will be approved by the House and Senate and the administration. I will report more on the progress of this after a while. I would like to introduce into the Record two items that came to my attention this morning. One, a copy of three letters that were published.

Mr. KYL. With that, Mr. President, I will complete this at another time since I know Senator Specter wants to move forward. Mr. SPECTER addressed the Chair.

Mr. KYL. I am finishing right now. I ask unanimous consent to have printed in the Record the text of three letters carried in the New York Times on Friday, November 7, and a copy of an editorial in the San Francisco Chronicle, and the date is November 6, 1997.

Mr. KYL

Mr. KYL. Mr. President, I realize that the debate on the Labor-HHS conference report is supposed to begin at 1 o'clock. I ask unanimous consent that Senator Faircloth and I each have 10 minutes as in morning business, subject to only Senator Specter changing that if he needs to during the course of our presentations. And, Mr. President, in addition, I ask that the Senator from Minnesota, Mr. Grams, have 5 minutes following Senator Faircloth.

Mr. KYL

Mr. KYL. Mr. President, today, I rise to introduce the Iran Missile Protection Act of 1997, the so-called, IMPACT 97 legislation, a similar version of which Curt Weldon introduced in the House of Representatives last week. The IMPACT 97 legislation is aptly named because it is intended to have a real impact on the growing threat from Iranian ballistic missiles. Recent revelations that Iran has nearly completed development of two new ballistic missiles--made possible with Russian assistance-- that will allow it to strike targets as far away as Central Europe has convinced me that United States theater missile defenses must be accelerated in order to counter the emerging Iranian threat. According to published reports, a long-range Iranian missile, Shahab 4, could be fielded in as little as 3 years. A shorter range missile, Shahab 3, which will be capable of reaching Israel, could be operational in 12 to 18 months. Both missiles could be armed with chemical or biological warheads. These reports are the latest in a string of increasingly troubling disclosures that have surfaced since the Los Angeles Times first reported in February that Russia was providing missile technology and assistance to Iran. A bipartisan group of Senators and Representatives have been working on various legislative approaches to address the Iranian threat. For example, Representative Jane Harman and I introduced a concurrent resolution expressing the sense of Congress that the administration should impose sanctions against Russian entities transferring ballistic missile technology to Iran. The annual foreign aid bill, currently in conference, contains a provision strictly conditioning the release of aid to Russia on certification by the President that Moscow has stopped the transfer of nuclear and missile technology to Iran. And, Senator Lott and Representative Gilman have also introduced legislation that would require that sanctions be imposed against any entity caught transferring goods to support Iran's ballistic missile program. In addition to the legislative approach, the administration has been engaged in a series of diplomatic exchanges with the Russians. According to press accounts, Vice President Gore has raised the issue with Prime Minister Chernomyrdin during their meetings in February and July. President Clinton has raised the matter with President Yeltsin at the Helsinki summit in March and the P-8 summit in June. The administration has also appointed Ambassador Frank Wisner as its special envoy to discuss with Russian officials the allegations made regarding transfers of technology to Iran. This is a very serious issue which the Clinton administration has clearly acknowledged. While we hope that the diplomatic efforts will bear fruit, it is entirely possible that it will not. In that event, the United States and our allies must be prepared to defend and protect ourselves from the possibility that Iran will use ballistic missiles armed with chemical, biological, or nuclear warheads. It is that possibility--some might say eventuality--that IMPACT 97 is intended to address. Neither the United States nor Israel will have missile defenses capable of countering the threat from the Shahab 3 or Shahab 4 missile before those systems are deployed. IMPACT 97 authorizes the accelerated development of some key theater defense systems, as well as the procurement of additional batteries of interceptors capable of providing protection against the Iranian missiles. Specifically, IMPACT 97 would authorize an additional: $65 million to accelerate development of Navy Upper Tier; $100 million to purchase a second THAAD UOES system; $15 million to improve interoperability of the THAAD radar with other missile defense systems; 110 million to purchase additional Arrow Missiles and for production enhancement to accelerate deployment; $15 million to accelerate development of a remote launch capability for PAC-3 using a THAAD radar to enlarge the area the system can defend; $25 million for PAC-3 production enhancements to accelerate deployment of the system; $35 million to purchase two Cobra Gemini radars to improve missile tracking; and $20 million for development of the Joint Composite Tracking Network to improve command and control and interoperability of missile defense systems. I believe that the potential threat from these Iranian ballistic missiles is so grave that we cannot afford to wait until they are deployed to respond with defenses. I have personally discussed this legislation with members of the Department of Defense, and my staff has been in regular contact with other officials there to help ensure that the best bill possible is presented for consideration. In the end, the Department has decided not to support this legislation, however, I have reasonable confidence that the programs identified, and the funding provided, is an accurate reflection of where BMDO would spend the additional funds, if provided. Secretary Cohen has indicated in a letter to me that he does not recommend that additional resources be applied to the theater missile defense programs. Unfortunately, the current deployment schedule for the TMD programs is inadequate, and I have to respectfully disagree with Secretary Cohen about his assessment that the programs are progressing as fast as they can. This legislation will ensure that the United States and its allies can counter the growing threat from Iran's ballistic missile program. I hope that the Armed Services Committee will be able to act on this legislation promptly and that the full Senate can debate IMPACT 97 early next year.

Mr. KYL

Mr. KYL. Mr. President, today, I rise to introduce the Iran Missile Protection Act of 1997, the so-called, IMPACT 97 legislation, a similar version of which Curt Weldon introduced in the House of Representatives last week. The IMPACT 97 legislation is aptly named because it is intended to have a real impact on the growing threat from Iranian ballistic missiles. Recent revelations that Iran has nearly completed development of two new ballistic missiles--made possible with Russian assistance-- that will allow it to strike targets as far away as Central Europe has convinced me that United States theater missile defenses must be accelerated in order to counter the emerging Iranian threat. According to published reports, a long-range Iranian missile, Shahab 4, could be fielded in as little as 3 years. A shorter range missile, Shahab 3, which will be capable of reaching Israel, could be operational in 12 to 18 months. Both missiles could be armed with chemical or biological warheads. These reports are the latest in a string of increasingly troubling disclosures that have surfaced since the Los Angeles Times first reported in February that Russia was providing missile technology and assistance to Iran. A bipartisan group of Senators and Representatives have been working on various legislative approaches to address the Iranian threat. For example, Representative Jane Harman and I introduced a concurrent resolution expressing the sense of Congress that the administration should impose sanctions against Russian entities transferring ballistic missile technology to Iran. The annual foreign aid bill, currently in conference, contains a provision strictly conditioning the release of aid to Russia on certification by the President that Moscow has stopped the transfer of nuclear and missile technology to Iran. And, Senator Lott and Representative Gilman have also introduced legislation that would require that sanctions be imposed against any entity caught transferring goods to support Iran's ballistic missile program. In addition to the legislative approach, the administration has been engaged in a series of diplomatic exchanges with the Russians. According to press accounts, Vice President Gore has raised the issue with Prime Minister Chernomyrdin during their meetings in February and July. President Clinton has raised the matter with President Yeltsin at the Helsinki summit in March and the P-8 summit in June. The administration has also appointed Ambassador Frank Wisner as its special envoy to discuss with Russian officials the allegations made regarding transfers of technology to Iran. This is a very serious issue which the Clinton administration has clearly acknowledged. While we hope that the diplomatic efforts will bear fruit, it is entirely possible that it will not. In that event, the United States and our allies must be prepared to defend and protect ourselves from the possibility that Iran will use ballistic missiles armed with chemical, biological, or nuclear warheads. It is that possibility--some might say eventuality--that IMPACT 97 is intended to address. Neither the United States nor Israel will have missile defenses capable of countering the threat from the Shahab 3 or Shahab 4 missile before those systems are deployed. IMPACT 97 authorizes the accelerated development of some key theater defense systems, as well as the procurement of additional batteries of interceptors capable of providing protection against the Iranian missiles. Specifically, IMPACT 97 would authorize an additional: $65 million to accelerate development of Navy Upper Tier; $100 million to purchase a second THAAD UOES system; $15 million to improve interoperability of the THAAD radar with other missile defense systems; 110 million to purchase additional Arrow Missiles and for production enhancement to accelerate deployment; $15 million to accelerate development of a remote launch capability for PAC-3 using a THAAD radar to enlarge the area the system can defend; $25 million for PAC-3 production enhancements to accelerate deployment of the system; $35 million to purchase two Cobra Gemini radars to improve missile tracking; and $20 million for development of the Joint Composite Tracking Network to improve command and control and interoperability of missile defense systems. I believe that the potential threat from these Iranian ballistic missiles is so grave that we cannot afford to wait until they are deployed to respond with defenses. I have personally discussed this legislation with members of the Department of Defense, and my staff has been in regular contact with other officials there to help ensure that the best bill possible is presented for consideration. In the end, the Department has decided not to support this legislation, however, I have reasonable confidence that the programs identified, and the funding provided, is an accurate reflection of where BMDO would spend the additional funds, if provided. Secretary Cohen has indicated in a letter to me that he does not recommend that additional resources be applied to the theater missile defense programs. Unfortunately, the current deployment schedule for the TMD programs is inadequate, and I have to respectfully disagree with Secretary Cohen about his assessment that the programs are progressing as fast as they can. This legislation will ensure that the United States and its allies can counter the growing threat from Iran's ballistic missile program. I hope that the Armed Services Committee will be able to act on this legislation promptly and that the full Senate can debate IMPACT 97 early next year.

Mr. KYL

Mr. KYL. Mr. President, over the past few weeks, a series of increasingly troubling reports have been published in the press indicating Iran has nearly completed development of two long-range missiles that will allow it to strike targets as far away as central Europe. According to these press reports, Russian missile assistance has been the critical factor that has enabled Tehran's missile program to make such rapid progress. In order to halt this dangerous trade, Representative Harman and I have introduced a bipartisan concurrent resolution expressing the sense of the Congress that proliferation of such technology and missile components by Russian governmental and nongovernmental entities must stop. Our resolution calls on the President to use all the tools at his disposal, including targeted sanctions, to end this proliferation threat, if these activities do not cease. I join with Representative Harman, in clarifying that this resolution is not intended to affect the Cooperative Threat Reduction Program or similar U.S. government projects and programs which seek to reduce the threat of proliferation of weapons of mass destruction, their materials, know-how, as well as associated means of delivery currently being conducted. But we need to be clear that those individuals who proliferate will be penalized with the tools the U.S. has available.

Mr. KYL. Mr. President, I thank the Senator from Indiana and I assure him that I support the Committee's report language which removes from consideration, under this resolution, any ongoing programs and projects which seek to reduce the threat of the proliferation of weapons of mass destruction, their materials, and know-how; as well as cooperative space programs between the United States and Russia and the programs of the National Endowment for Democracy which promote democracy and market economic principles in Russia.

Mr. KYL. Mr. President, I would be happy to yield to the Senator from Indiana.

Mr. KYL

Mr. KYL. Mr. President, will you please advise me when I have spoken for 7 minutes?

Mr. KYL. I appreciate that. Mr. President, I appreciate the Senator from Wyoming taking this time to discuss what we think is one of the most important matters yet to be decided before the end of this legislative session. I know we have some appropriations bills to pass to ensure that the Federal Government is funded for next year, and perhaps a couple of other items, like the fast-track legislation. But in terms of important principles, I can't think of anything more important than ensuring that the American people have the right to go to the doctor of their choice. You heard me right. I said to ensure that the American people have the right to go to the doctor of their choice. You mean they don't have that right? Well, Mr. President, unless we fix a part of the balanced budget bill that we passed earlier in this session, as of January 1, senior citizens in this country will not be guaranteed the right to go to the physician of their choice. Here is the problem. The Clinton administration interprets the Medicare law to require that a Medicare patient be treated under Medicare; that that person cannot go to a doctor who may see some Medicare patients but is not taking anymore Medicare patients and, therefore, is unwilling to treat the patient as a Medicare patient. Here is the exact situation, a real- life story that happened to one of my constituents in the small town of Prescott, AZ. She just turned 65. She is diabetic. She was having complications. She wanted to see a physician who could take care of her, and there weren't very many specialists in that small town. She found one who could take care of her. She went to him and he said, ``Now, you are 65.'' She said, ``Yes.'' He said, ``Then I don't think I can take care of you.'' She said, ``Why not?" He said, ``I'm not taking anymore Medicare patients, you're Medicare eligible.'' She said, ``That is all right, send me the bill, I will pay you. We will save Medicare money.'' He checked with HCFA, the entity that runs Medicare, and sure enough, he could be prosecuted for a Federal crime if he entered into what is called a private contract with her. That is the way the Clinton administration interprets the law and, in fact, Mr. President, that is the way they want the law to read because they don't want any competition for Medicare. Once you turn 65, it is their view that everybody should have Medicare and only Medicare. One of my colleagues said it is Medicare or no care. That is an unacceptable choice for senior citizens in this country. Why should you become second class when you turn 65 and not be able to contract privately with a physician of your choice? I am on a Federal health care plan. I happen to like Blue Cross, so I signed up with the Blue Cross plan. But I still go to a doctor that is outside of that plan and pay for it myself. I have that right. Why shouldn't a senior citizen have the same right that I do under my Federal health care plan? Why should someone, merely because they turn 65, be denied the right to privately contract with the physician of their choice? Maybe they have been seeing the same doctor for 40 years and they want to continue seeing that doctor but he is not taking anymore Medicare patients, why shouldn't they be able to go to him and why shouldn't he be able to contract directly with them? We passed it 64-35 in the Senate. It went into the balanced budget bill, but the administration said, no, they would veto the balanced budget bill unless we took that provision out or unless we changed it. How did they insist it be changed, without my approval by the way? They said, OK, the patient can have the choice but no doctor can serve such a patient unless in advance he opts out of Medicare for 2 years. Let's be realistic, only 4 percent of the nonpediatricians don't serve any Medicare patients. Most doctors have some Medicare patients. Do we want to literally force those doctors to dump all of their Medicare patients just so they can privately contract? That is not the way to encourage more doctors to see more Medicare patients. Why shouldn't a physician be able to both treat patients under Medicare and not treat patients under Medicare? There is only one argument, other than the fact this presents some competition to Medicare. In that regard, I don't see how it hurts Medicare, because to the extent that anybody would choose not to take advantage of Medicare, they are saving Medicare money. It doesn't hurt Medicare. It actually helps Medicare, they don't have to pay as much. There is some concern that some unscrupulous doctor somewhere might take advantage of a Medicare patient. ``I'm not going to treat you under Medicare; you have to enter into a private contract with me, and I am going to gouge you.'' I don't think that is going to happen. Just to be sure, we built into the bill which I introduced a provision against fraud. It requires a written contract, and the patient can get out of it at any time. HCFA gets information from the doctor which tells them exactly what is going on. So if there is any fraud, that doctor can be prosecuted. So we have taken care of the major problem that has been raised. I don't think there is any reason why our bill should not pass. I don't think this Congress should go on record as standing for the principle that when you turn 65 in the United States of America, you don't have the choice to go to the doctor of your choice, and that doctor doesn't have the choice to care for you if he wants to do that. It is wrong, it is un-American, it is a violation of fundamental rights, and before this Congress adjourns, Mr. President, we need to fix the law so that senior citizens in this country have a fundamental right to the medical care that they deserve. Again, I thank the Senator from Wyoming for his sponsorship of this time for us to discuss this issue. I hope we have a chance before this legislative session is over to act upon this bill to get it passed and that the President will sign it. Thank you, Mr. President.

Mr. KYL

Mr. KYL. Thank you, Mr. President.

Mr. KYL

Mr. KYL. Mr. President, today the Senate will be in for a period of morning business until 12:30 p.m. At 12:30 p.m., we hope the Senate will be receiving the continuing resolution from the House. If that is the case, then debate will begin immediately in the Senate. As always, Members will be notified when the vote on the continuing resolution is scheduled. In addition, the Senate may turn to any appropriations conference reports that may become available. As a reminder to all Members, a cloture motion was filed last evening on the ISTEA legislation. Therefore, all second-degree amendments must be filed prior to the vote on Thursday. All Senators will be notified as to when that cloture vote will occur on Thursday. I suggest the absence of a quorum.

Mr. KYL

Mr. KYL. Mr. President, for several days now the Senate has debated campaign finance reform legislation. Advocates of the so-called McCain- Feingold proposal deserve credit for advancing the issue. Unfortunately, in the view of a majority, they have been unable to construct a bill that does not violate the first amendment to the Constitution. There are other proposals for reform that I believe can address the problems without compromising the Constitution. Therefore, I will vote to bring at least one of those proposals--the Paycheck Protection Act--to a vote but not yet support consideration of McCain- Feingold. Some have argued that details are less important than the general principle of reform. But reform to one is not necessarily reform to another. For example, most Republicans believe that all contributions to politics should be voluntary. Most Democrats, on the other hand, say they agree but they are unwilling to give up compulsory union dues that are then contributed to candidates. Thus, reform to us is not reform to them. Recognizing that we approach the need for reform from different perspectives, I have tried to evaluate the issue by applying some basic principles that I think most of us would agree with. For example, our laws should be clear, simple, and enforceable. They should insist on full and timely disclosure. They should place constituent interest over special interest. They should ensure voluntary participation for all. And, they should protect our right to free speech--unregulated by the government. This last principle is significant because our constitutional rights to free speech, free assembly, and the right to petition our Government were specifically established to protect our political expression. The Supreme Court has confirmed this, declaring that political expression is ``at the core of our electoral process and of the first amendment freedoms.'' (Buckley v. Valeo, 424 U.S. 44 (citing Williams v. Rhodes, 393 U.S. 23 (1968))). The McCain-Feingold proposal incorporates some of these important principles. For example, the bill requires more timely and detailed disclosure of campaign spending. This allows people to make more informed decisions regarding contributions made to their elected leaders. The bill calls for tougher penalties for campaign violations. This might make people think twice about breaking the law. The bill attempts to tighten the restrictions on fundraising on federal property and strengthen the restriction on foreign money ban. Both of these provisions would address some of the Clinton-Gore campaign finance improprieties. The bill prohibits those under 18 from contributing to campaigns, ensuring that only those who vote can contribute, again addressing a problem with the Clinton-Gore campaign. The bill also extends the ban on mass mailing by House and Senate Members from 60 days before an election to January 1 of an election year, thereby reducing an incumbent advantage. I support the intent, if not the exact language, of each of these provisions. I also believe that any reform legislation should include a requirement that candidates raise a majority of their campaign contributions from within their respective States and that all political activities be funded with voluntary contributions and not extracted in the form of compulsory union dues. The first of these proposals is not included in the McCain-Feingold legislation, and I believe it is necessary to meet the principles of putting constituent interest over special interest. The second proposal is not adequately dealt with because of opposition from Senator McCain's Democratic cosponsor. The most extensive provisions of the McCain-Feingold proposal address so-called soft money and issue/express advocacy. While these provisions are well intentioned, I believe they would dramatically restrict party building activities and free speech for individuals, associations, and citizens. The McCain-Feingold approach to so-called soft money contributions is to completely prohibit them. These are contributions of citizens and organizations to political parties and cannot be spent for individual candidates. Hard money, on the other hand, is contributed directly to candidates to be spent by them. Unlike hard money, soft money can be contributed in unlimited amounts to support political party organizations by helping them to engage in grassroots volunteer activities. The bill's total ban on soft money contributions would restrict State and local campaign committees from supporting the following election activity: voter registration activity within 120 days before a Federal election; voter identification, get- out-the-vote activity, or general campaign activity conducted in connection with any election that includes a candidate for Federal offices--generally referred to as party building activity; and a communication that refers to a clearly identified candidate for Federal office and that is made for the purpose of influencing a Federal election. Thus, if the law were to completely ban soft money, it is not the candidates, but the political parties that would suffer the most. Is this the type of political activity we really want to get rid of? The McCain-Feingold proposal also explicitly forbids so-called issue ads, ads that mention a candidate's name within 60 days of a Federal election. Issue advocacy can best be defined as any speech relating to issues and the policy positions taken by candidates and elected officials. It can be as simple as a statement such as, ``Senator Smith's position on school vouchers is dead wrong.'' Or it can be as involved as a multimillion dollar campaign of broadcast and print advertisements that spreads the same message. The Constitution protects the right of any group or individual to engage in issue advocacy. It is the essence of free speech. Attempts to regulate and require disclosure of issue advocacy expenditure through statute and through FEC regulation have repeatedly been declared unconstitutional by the Supreme Court and lower Federal courts. The Court has always viewed issue advocacy as a form of speech that deserves the highest degree of protection under the first amendment. Not only has the Court been supportive of issue advocacy, the justices have affirmatively stated that they are untroubled by the fact that issue advertisements may influence the outcome of an election. In fact, in Buckley versus Valeo, the court stated: The distinction between discussion of issues and candidates and advocacy of the election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are often intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest. Buckley v. Valeo, 424 U.S.1, 42 (1976). Moreover, defenders of the first amendment know that the freedom to engage in robust political debate in our democracy will be at risk if the Congress or the FEC is given the authority to ban issue ads close to an election, or evaluate the content of issue ads to determine if they are really a form of express advocacy. The Supreme Court recognized this danger long before Buckley versus Valeo. In 1945, in Thomas versus Collins, the Court states: . . . the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning. Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim Thomas v. Collins 323 U.S. 516 (1945). McCain-Feingold would impose regulations on issue advocacy in violation of Court declarations. Advocacy groups such as the National Right to Life, Sierra Club, and National Taxpayers Union, to name just a few, would be severely circumscribed in the exercise of their first amendment rights. The FEC has a poor track record of trying to broadly interpret current election statues to encompass issue advocacy speech. In fact, as recently as October 6, 1997, the Supreme Court let stand a circuit court decision striking FEC regulations because they infringed upon a group's right to characterize a candidate's position on abortion rights. Maine Right to Life v, FEC (1997WL274826, 65USWL3783) (October 6, 1997) (Case number 96-1818). The result of the McCain-Feingold 60-day ban on issue advocacy before an election will be that associations or groups of citizens could not characterize a candidate's record on radio and television during that period. It would, thus, severely limit citizen involvement and speech. The only recourse would be for such associations--nonprofit 501(c)3 and 501(c)4 organizations--to create new institutional entities-- political action committees [PAC's]--to legally speak within 60 days before an election. Such groups would, thereby, also be forced to disclose all contributors to the new PAC. Not all members of nonprofit organizations want to become members of PAC's. Separate accounting procedures, new legal costs, and separate administrative processes would be imposed on these groups, merely so that their members could preserve their first amendment rights. It is noteworthy that none of these proposals seek to regulate the ability of the media to exercise its enormous license to editorialize in favor or against candidates at any given time. Finally, as noted, McCain-Feingold does not ensure that American citizens have the right to voluntarily participate in the political process. I am specifically referring to the protection from mandatory withdrawals of dues from a worker's paycheck for political activities without prior approval. Contrary to the claims of its supporters, McCain-Feingold does not provide such protection. As written, the McCain-Feingold legislation applies only to nonunion member employees. These are workers who choose not to join a union, but who under a collective bargaining agreement must pay dues--that is, agency fees--to support the costs of union representation. McCain- Feingold covers only 10 percent of the roughly 18 million dues-paying employees nationwide. I support Senator Lott's Paycheck Protection Act, which covers all 18 million. McCain-Feingold also requires labor unions to notify these nonunion members that they are entitled to request a refund of the portion of their dues or agency fees used for political purposes. The effect of this proposal is to place the burden on the worker--after the fact--to petition for a refund of these automatically withdrawn dues. By contrast, Senator Lott's Paycheck Protection Act requires unions to obtain union and nonunion employee's written permission first before using any portion of his or her dues for political activities. Simply put, I believe all contributions to political activities should be voluntary. No one should have automatic political withdrawals from his or her paycheck unless consent is first given. The Paycheck Protection Act codifies this right. McCain-Feingold does not. To conclude, I strongly believe certain aspects of our campaign finance system need reform. But reform that is consistent with the principles I outlined earlier. Although well intentioned, McCain- Feingold layers more regulation on top of current regulation and also infringes upon the constitutional rights to free speech and association. And it does not guarantee voluntary participation in the political process. For these reasons I cannot support it in its current form.

Mr. KYL

Mr. KYL. Mr. President, for the information of the Senate and the public I am announcing that the Subcommittee on Water and Power of the Committee on Energy and Natural Resources, will hold an oversight hearing to receive testimony to review the Federal Energy Regulatory Commission's hydroelectric relicensing procedures. The hearing will be held on Thursday, October 30, 1997, at 2 p.m. in room SD-366 of the Dirksen Senate Office Building. Those interested in testifying or submitting material for the hearing record should write to the Subcommittee on Water and Power of the Committee on Energy and Natural Resources, U.S. Senate, Washington, DC 20510 attn: Shawn Taylor or Howard Useem at (202) 224-7875.

Mr. KYL

Mr. KYL. I thank the Senator from Georgia for taking this time this morning to bring to the attention of our colleagues and the American people again the abuses of the Internal Revenue Service and the necessity for fundamental tax reform as one of the solutions to those abuses. I also want to commend the chairman of the Senate Finance Committee, Senator Roth, for holding the hearings last week to expose the problems in the Internal Revenue Service's dealings with taxpayers and to thank the taxpayers and the IRS employees who had the courage to come forward and tell their stories. Although we all knew there were serious problems, I do not think that any of us realized the extent to which there are problems with the way that IRS does its business, as we learned those things from the hearings. As a matter of fact, as Senator Roth put it, we found that the IRS far too often targets vulnerable taxpayers, treats them with hostility and arrogance, uses unethical and even illegal tactics to collect money that sometimes is not even owed, and uses quotas to evaluate its employees. It is behavior that is clearly unacceptable. Obviously, I think we need to say at the outset that most IRS employees are law abiding and professional. We recognize that they have a very difficult and, indeed, thankless task of administering a Tax Code that is exceedingly complex, it is filled with contradictory provisions and open to differing interpretations. But the IRS has tremendous power, power that can bankrupt families, can put people out of their homes, literally ruin lives, and that makes abuse of that power intolerable. The Finance Committee has been fielding calls from thousands of taxpayers all across the country with horror stories about their encounters with the IRS. My office has been taking calls, too, most frequently from taxpayers who are so fearful of IRS retaliation that they are leery of leaving their names or addresses. We heard, for example, from a taxpayer who was hounded by the IRS for overpaying his taxes. The IRS put one constituent through the wringer of audits annually for 20 years and never found anything wrong. Another person received a tax refund in error from the IRS. Knowing that it was in error, the constituent never cashed the check, yet when the IRS discovered its own error later, it demanded the refunded check back with interest. One family had a lien placed on its house, worked out a payment plan with one of the IRS agents, only to have another IRS agent later institute foreclosure proceedings. What is most galling, I think, to the taxpayers is not that they have to pay taxes, clearly, but there is virtually no recourse when the IRS makes an error. The cost of setting things right, hiring attorneys, CPA's, and the like can be so high that people agree to pay the taxes and penalties that sometimes they do not even owe. In fact, reports are that the Clinton IRS has been boosting its efforts to catch people at the low end of the income scale. According to IRS data, the chance of an audit actually quadrupled between 1990 and 1996 for people reporting annual incomes of less than $25,000. By contrast, the odds of $100,000- plus filers being hit with an audit dropped 40 percent. The Clinton administration, which likes to portray itself as being on the side of the little guy, has been quick to discount all of this taxpayer angst. ``We shouldn't politicize it,'' the President said of the IRS, despite reports that the Clinton IRS itself has been singling out high-profile critics of the administration for audits. Legislation has been introduced in both the House and Senate to begin to rein in the IRS. For example, Senators Grassley and Kerrey introduced the IRS Reform and Restructuring Act here in the Senate. But I do not think we should be under any illusion that an IRS bill alone will solve the problem. Our Nation's Tax Code as currently written amounts to more than 17,000 pages of confusing, seemingly contradictory tax law provisions. We need to reform the IRS, but unless that reform is followed up with a more fundamental overhaul of the entire Internal Revenue Code, problems with collections and enforcement are likely to persist. If the Tax Code cannot be deciphered, it is going to invite different interpretations from different people, and that is where the problems with the IRS arise. Replacing the existing code with a simpler, fairer, flatter tax would facilitate compliance by taxpayers, offer fewer occasions for intrusive IRS investigations, and eliminate the need for special interests to lobby for complicated tax loopholes. There are a variety of approaches to fundamental reform that are pending before the Congress, including the Shelby-Armey flat-rate income tax, the Shaefer-Tauzin national sales tax and the Kemp Commission simpler, single-rate tax. Each has a passionate advocate in Congress and around the country. Any one of these options would be preferable to the existing income tax system. So why have we not settled on one of them and pressed on with the job of fundamental tax reform? The answer is that while there is overwhelming public consensus in favor of an overhaul of the Tax Code, a public consensus has yet to emerge in favor of a sales tax or a flat tax or some alternative. Given President Clinton's lack of support for any fundamental tax reform, it is likely to take a broad public consensus, the likes of which we haven't seen in recent years, to drive such a tax overhaul plan through the Congress and past the President's veto pen. Steve Forbes made tax reform the central theme of his campaign for the Presidency 1\1/2\ years ago. In fact, he carried the Arizona primary in large part because his tax plan really resonated with the voters in my State. Yet he failed to win the nomination, and neither Bill Clinton nor Bob Dole pursued the issue with much passion or conviction. I think it will take a national campaign to build the kind of consensus that will be needed to move forward with fundamental tax reform, which is probably the most momentous undertaking of the century. The Finance Committee hearings about taxpayer abuse by the IRS, the Kemp Commission's recommendation in favor of fundamental tax reform last year, new proposals to sunset the IRS Code, and the debate that sponsors of the flat tax and sales tax are expected to take on the road across the country within the next few months, all will help to move the debate forward. In conclusion, we can pass an IRS reform bill to rein in the IRS and make sure that it treats taxpayers fairly and reasonably and respectfully. But let us not fool ourselves. The IRS cannot be faulted for a tax code that is too complex and filled with contradictory provisions. Until the Tax Code is simplified, problems in one form or another are likely to persist. We must use this opportunity to begin the debate about fundamental tax reform. Again, Mr. President, I commend the Senator from Georgia for taking the leadership to engage in discussion today.

Mr. KYL

Mr. KYL. Mr. President, I ask that the text of the my remarks before the First International Conservative Congress be printed in the Record. The text of the remarks follows: Remarks by Senator Jon Kyl at the First International Conservative Congress--September 28, 1997 defining a conservative approach to defending the west Thank you for inviting me to address the conference. A conservative and internationalist approach to foreign policy is consistent. For example, during the Cold War Ronald Reagan worked not just to contain communism but to expand democracy. NATO expansion is a contemporary example where conservatives believe the U.S. should remain involved internationally to promote democracy, free markets, and to hedge against a revival of communism. A successful internationalist policy requires that you have firm clear national goals and the means and will to achieve them strategically. The Clinton Administration pursues a foreign policy without clear goals or the will to act decisively and is squandering the national security means left to it by a dozen years of Republican presidency. It emphasizes hope over reality and reliance on arms control agreements like the Comprehensive Test Ban Treaty (CTBT), the Anti-Ballistic Missile (ABM) Treaty, and the Chemical Weapons Convention (CWC) over a stronger defense. And political benefit over national security, as in its decisions to cave in to the concerns of some in industry in irresponsibly relaxing export controls on key items like encryption technology and supercomputers. Today's debate is similar to that which took place during the Cold War between those who favored detente and arms treaties and those who believed in a rational, tough policy of peace through strength. During the Cold War, the proponents of detente argued that the U.S. should overlook violations of promises and arms control agreements because of our tense relations with the Soviet Union and China. Today, the supporters of ``engagement'' say we should overlook violations of such treaties because of our improved relations with Russia and China. The result is the same--a muddled, confused foreign policy. But it hasn't stopped the Administration from proposing even more treaties, even as existing treaties are continually violated by all but the

Mr. KYL

Mr. KYL. Mr. President, I will not raise a point of order against Senator Mack's amendment. Though I continue to have numerous concerns about the proposed measure, it has been improved since the original Clinton administration proposal was offered. I am supportive of allowing those Central Americans who came to this country during the 1980's in order to flee persecution, and other forms of danger, to have the opportunity to apply for relief from deportation under the suspension of deportation application rules that existed prior to the passage of last year's immigration reform bill. During the 1980's thousands of our neighbors from El Salvador, Guatemala, and Nicaragua came to this country to escape civil war. These individuals were granted temporary protected status [TPS], and were allowed to stay in the United States and work because of the foreign policy issues at hand. During such time, these Central Americans should have been afforded a proper opportunity to have asylum applications processed, but some were denied this opportunity. As a result, these individuals, made up of Salvadorans and Guatemalans who are sometimes referred to as the American Baptist Churches [ABC] case group, were given another opportunity to have their asylum cases heard. This group is also comprised of Nicaraguans who participated in the Nicaraguan Review Program. If such asylum applications were denied, the Central Americans were to be afforded the opportunity to apply for what is known as suspension of deportation. That means that, even if they were denied asylum, but could prove that they were persons of good moral character, had been living in the United States for 7 years, and could prove that deportation would cause extreme hardship to either the immigrant or a U.S. citizen or legal immigrant, the Attorney General could suspend the alien's deportation. However, in the ensuing years, the U.S. asylum system has become so backed-up that upward of 240,000 Central Americans' asylum cases have not been resolved. As a result, the process for applying for suspension of deportation has been delayed as well. Many of us argue that these Central Americans should be allowed to go through the suspension of deportation process that existed prior to the passage of the Immigraton Act of 1996 because most have lived here since the 1980's and were led to believe that their claims to asylum, or that their pleas to adjust to legal status, would be processed under pre-1996 rules. The Mack amendment will afford these Central Americans who fled here amid civil war and chaos in the 1970's and 1980's a fair chance to show that their deportation would cause extreme hardship. The Mack amendment has been improved substantially in one critical area. Initially, the proposal allowed any individual, not just Central Americans, in deportation proceedings as of April 1, 1997, to apply for suspension of deportation under the old rules--7 years in U.S., good moral character, extreme hardship--instead of the new tougher rules under the Immigration Act of 1996. The revised Mack amendment will allow those Central Americans, who came here to flee civil strife and war in the 1980's, to apply for suspension of deportation under the old rules. Individuals who have simply come here illegally will be required to apply for suspension of deportation under the new Immigration Act of 1996 rules. The new rules require such illegal immigrants to prove, like the old law, that they are of good moral character. But, in addition, they must prove that they have been in the United States continuously for 10 years and demonstrate that removal would cause extreme and unusual hardship to a U.S. citizen or legal immigrant, but not to the illegal immigrant himself. The fact that this amendment has been revised to include only Central Americans is important--during all of the meetings I have had on this issue, and of all of the correspondence I have received, none have suggested that any individuals other than those Central Americans who fled to the United States in the 1980's should be processed under old Immigration Act suspension standards. I am pleased that the Mack proposal limits the scope in this area. A provision of the Mack amendment that I continue to be concerned about concerns a numerical cap included in last year's Immigration Act. The Immigration Act of 1996 imposed a cap of 4,000 on the number of suspension of deportation cases that can be adjudicated in a given year. The Mack proposal removes the numerical cap of 4,000. Even though the necessary adjustments have been made to ensure that only a specific group of individuals will be allowed to have their suspension of deportation cases heard under the old rules, the fact is, according to the Immigration and Naturalization Service, approximately 150,000 Central Americans will actually be adjusting their status to permanent legal resident. These additional permanent resident numbers should be offset in other areas of legal immigration. During the negotiation on this amendment, many of us suggested that we increase the number of individuals who will be adjudicated per year from 4,000 to 14,000, but include these numbers in our annual count of legal immigration and ensure, as a result of the addition, that legal immigration does not increase. The Mack proposal should be modified to reinstate the cap, but at 14,000 annually, with an offset in legal immigration that ensures that legal immigration does not increase. Another concern I have about the Mack proposal is its silence about whether thousands of individuals who entered the country illegally, with no connection to any of these formerly war-torn countries, should be exempted from one of the new tougher standards against illegal immigration in the Immigration Act of 1996. Specifically, the Mack amendment is silent on the issue of the N-J-B case. The N-J-B case determined that section 309(C)5 of the Immigration Act of 1996 means that ``period of continuous residence'' stopped when an alien was served with an order to show cause before enactment of the Immigration Act of 1996, and that such time stops when an alien is, or was, served a notice to appear after enactment of the Immigration Act of 1996. In other words, the Bureau of Immigration Appeals has interpreted the provision to mean that those aliens applying for suspension of deportation cannot count as time spent here in the United States that time spent here after having received an order. If congressional intent is not clarifed in this area, it has been made clear that the Clinton administration will seek to administratively overturn the N-J-B decision. Legislation introduced by Representative Lamar Smith would clarify congressional intent. It provides that the period of time that an individual is considered to have been in the United States stops when an order to show cause was issued, except for those Guatemalans, Salvadorans, and Nicaraguans who fled here during the 1970's and 1980's to escape civil strife and persecution. Under the Smith proposal, these Central Americans would be allowed to continue to count the time spent here in the United States after having received an order to show cause. Mr. President, many people are legitimately concerned about the effects of the removal of these Central Americans from the United States. It is my hope that, as we work toward a D.C. appropriations conference report, a modified version of this amendment can be achieved to the satisfaction of all interested parties.