Carl Levin

Mr. LEVIN

Mr. LEVIN. Mr. President, our nation has been riveted by the violence in Littleton, CO and Conyers, GA and our youth's easy access to guns. Communities have become increasingly concerned about their own schools and are more sensitized to the dangers of youth violence. Yet, despite this scrutiny, firearms continue to claim the lives of our young people. Every day on the average, another 14 children in America are killed with guns because of the gaping loopholes in our Federal firearms laws. We took steps to eliminate some of these loopholes during Senate consideration of the juvenile justice bill. Unfortunately, the legislation passed by the Senate did not go far enough to reduce the easy availability of lethal weapons to persons who should not have them. Today, I saw an ABC News Wire report called ``Michigan sting operation shows felons can buy guns.'' According to this report, two investigators in Michigan, one posing as a felon and the other as his friend, went to ten different firearms dealers to purchase guns. Remember, selling a gun to a felon is illegal but these investigators had no problems with the gun dealers they approached. Out of the 10 dealers in this investigation, nine reportedly allowed, apparently, illegal purchases. In total, 37 guns were apparently purchased illegally during this selling spree. And still, the NRA wants Congress to expand the loopholes in our firearms laws, rather than taking modest steps to close them. Since the moment the Senate passed the Juvenile Justice bill, NRA lobbyists in Washington have been working around the clock to lobby Members of the House of Representatives. The NRA has named as its ``top priority, the defeat of any Lautenberg-style gun show amendment in the U.S. House.'' The Lautenberg amendment, adopted by the Senate, simply requires dealers at gun shows to follow the same rules as other gun dealers, by using the existing Brady system for background checks. It accomplishes this goal without creating any new burdens for law-abiding citizens and without any additional fees imposed on gun sellers or gun buyers. But the NRA wants to create additional loopholes by creating a special category of gun show dealers, who would be exempt from even the most minimum standards. They also want to weaken the bill by establishing a 24-hour limit on the time that vendors have to complete background checks, rather than the current standard of 3 business days, the time the FBI says is necessary. It will be a sad day if the NRA can successfully lobby the House to eliminate these moderate proposals in the Juvenile Justice bill. I hope the House will amend its current bill to include language, passed by the Senate, to limit the importation of large capacity ammunition devices, clips that domestic companies were prohibited from manufacturing in 1994. Again, this is a moderate measure designed to keep clips with rounds as high as 250 off our streets and out of the hands of young people. As the House begins their consideration of the juvenile justice bill next week, I hope it will strengthen, not weaken, the moderate gun control measures that we passed in the Senate. For example, Congress should take steps to prevent unintentional shootings, which occur as a result of unsafe storage of guns. These daily tragedies, resulting from the careless storage of guns, can easily be prevented by requiring the use of locking devices for guns, which are inexpensive and easy to use. We should also take steps to eliminate illegal gun trafficking and ban semiautomatic assault weapons and handguns for persons under 21 years of age. The legislation passed in the Senate was a step in the right direction, but those moderate reforms are in jeopardy if Congress allows our legislative priorities to be dictated by the NRA.

Mr. LEVIN

Mr. LEVIN. Mr. President, I am happy to join Senators Thompson and Voinovich and a bipartisan group of our colleagues in introducing the Federalism Accountability Act of 1999. The bill would require an explicit statement of Federal preemption in Federal legislation in order for such preemption to occur unless there exists a direct conflict between the Federal law and a State or local law which cannot be reconciled. Enactment of this bill would close the back door of implied Federal preemption and put the responsibility for determining whether or not State or local governments should be preempted back in Congress, where it belongs. The bill would also institute procedures to ensure that, in issuing new regulations, federal agencies respect State and local authority. Mr. President, we want to ensure that the federal government works in partnership with our State and local government colleagues. One way of making sure this happens is that preemption occurs only when Congress makes a conscious decision to preempt and it is amply clear to all parties that preemption will occur. In 1991, I sponsored a bill, S. 2080, to clarify when preemption does and does not occur. I have since sponsored two similar bills. When I introduced S. 2080, I noted that ``state and local officials have become increasingly concerned with the number of instances in which State and local laws have been preempted by Federal law--not because Congress has done so explicitly, but because the courts have implied such preemption. Since 1789, Congress has enacted approximately 350 laws specifically preempting State and local authority. Half of these laws have been enacted in the last 20 years. These figures, however, do not touch upon the extensive Federal preemption of State and local authority which has occurred as a result of judicial interpretation of congressional intent, when Congress' intention to preempt has not been explicitly stated in law. When Congress is unclear about its intent to preempt, the courts must then decide whether or not preemption was intended and, if so, to what extent.'' In the ensuing time, there have been some changes, such as the Unfunded Mandates Reform Act, which have strengthened the partnership between the federal, state and local governments. Unfortunately, in the big picture, there has been little or no evidence of a change in the trends that I attempted to address when I introduced S. 2080 in 1991. Sometimes we enact a law and it is clear as to the scope of the intended preemption. Just as often, we are not clear, or a court takes language that appeared to be clear and decides that it is not, and construes it in favor of preemption. Similarly, agencies take actions that are determined to be preemptive whether their language is clear or not. Article VI of the Constitution, the supremacy clause, states that Federal laws made pursuant to the Constitution ``shall be the supreme law of the land.'' In its most basic sense, this clause means that a State law is negated or preempted when it is in conflict with a constitutionally enacted Federal law. A significant body of case law has been developed to arrive at standards by which to judge whether or not Congress intended to preempt State or local authority--standards which are subjective and have not resulted in a consistent and predictable doctrine in resolving preemption questions. If we in Congress want Federal law to prevail, we should be clear about that. If we want the States to have discretion to go beyond Federal requirements, we should be clear about that. If, for example, we set a floor in a Federal statute, but are silent on actions which meet but then go beyond the Federal requirement, State and local governments should be able to act as they deem appropriate. State and local governments should not have to wait to see what they can and cannot do. Our bill would allow tougher State and local laws given congressional silence. In addition, the bill contains a requirement that agencies notify, and consult with, state and local governments and their representative organizations during the development of rules, and publish proposed and final federalism assessments along with proposed and final rules. Mr. President, it should not be necessary to enact legislation to accomplish these things. Federal agencies should never issue rules without having the best and most complete information possible. Our State and local governments are ready, willing, and able to provide their expertise on how Federal rules will impact those governments' ability to get their jobs done. Common sense dictates that they be notified and consulted before the federal government regulates in a way that weakens or eliminates the ability of State and local governments to do their jobs, or duplicates their efforts. The current Administration and previous ones have recognized the value of having federal agencies consult with State and local governments. However, as was amply demonstrated by a recent GAO report, Executive Order requirements for federalism assessments have been ignored. The bill would correct this noncompliance by the Executive Branch, and ensure that independent agencies, as well, will engage in such consultation and publish assessments along with rules. Not only will the compilation and issuance of federalism assessments force the agencies to think through what they are doing, they will bolster the confidence of the public and regulated entities in the regulatory process by assuring them that their governments are acting in concert and avoiding conflicting or duplicative requirements. Our legislation also requires the Congressional Budget Office, with the assistance of the Congressional Research Service, at the end of each Congress, to compile a report on the number of statutory and judicially interpreted preemptions. This will constitute the first time such a complete report has been done, and the information will be valuable to the debate regarding the appropriate use of preemption to reach Federal goals. Mr. President, legislation to clarify when preemption occurs and otherwise strengthen the intergovernmental relationship has been endorsed by the major state and local government organizations. I would like to thank Senators Thompson and Voinovich and their staffs for their hard work in this area.

Mr. LEVIN

Mr. LEVIN. Mr. President, I am happy to join Senators Thompson and Voinovich and a bipartisan group of our colleagues in introducing the Federalism Accountability Act of 1999. The bill would require an explicit statement of Federal preemption in Federal legislation in order for such preemption to occur unless there exists a direct conflict between the Federal law and a State or local law which cannot be reconciled. Enactment of this bill would close the back door of implied Federal preemption and put the responsibility for determining whether or not State or local governments should be preempted back in Congress, where it belongs. The bill would also institute procedures to ensure that, in issuing new regulations, federal agencies respect State and local authority. Mr. President, we want to ensure that the federal government works in partnership with our State and local government colleagues. One way of making sure this happens is that preemption occurs only when Congress makes a conscious decision to preempt and it is amply clear to all parties that preemption will occur. In 1991, I sponsored a bill, S. 2080, to clarify when preemption does and does not occur. I have since sponsored two similar bills. When I introduced S. 2080, I noted that ``state and local officials have become increasingly concerned with the number of instances in which State and local laws have been preempted by Federal law--not because Congress has done so explicitly, but because the courts have implied such preemption. Since 1789, Congress has enacted approximately 350 laws specifically preempting State and local authority. Half of these laws have been enacted in the last 20 years. These figures, however, do not touch upon the extensive Federal preemption of State and local authority which has occurred as a result of judicial interpretation of congressional intent, when Congress' intention to preempt has not been explicitly stated in law. When Congress is unclear about its intent to preempt, the courts must then decide whether or not preemption was intended and, if so, to what extent.'' In the ensuing time, there have been some changes, such as the Unfunded Mandates Reform Act, which have strengthened the partnership between the federal, state and local governments. Unfortunately, in the big picture, there has been little or no evidence of a change in the trends that I attempted to address when I introduced S. 2080 in 1991. Sometimes we enact a law and it is clear as to the scope of the intended preemption. Just as often, we are not clear, or a court takes language that appeared to be clear and decides that it is not, and construes it in favor of preemption. Similarly, agencies take actions that are determined to be preemptive whether their language is clear or not. Article VI of the Constitution, the supremacy clause, states that Federal laws made pursuant to the Constitution ``shall be the supreme law of the land.'' In its most basic sense, this clause means that a State law is negated or preempted when it is in conflict with a constitutionally enacted Federal law. A significant body of case law has been developed to arrive at standards by which to judge whether or not Congress intended to preempt State or local authority--standards which are subjective and have not resulted in a consistent and predictable doctrine in resolving preemption questions. If we in Congress want Federal law to prevail, we should be clear about that. If we want the States to have discretion to go beyond Federal requirements, we should be clear about that. If, for example, we set a floor in a Federal statute, but are silent on actions which meet but then go beyond the Federal requirement, State and local governments should be able to act as they deem appropriate. State and local governments should not have to wait to see what they can and cannot do. Our bill would allow tougher State and local laws given congressional silence. In addition, the bill contains a requirement that agencies notify, and consult with, state and local governments and their representative organizations during the development of rules, and publish proposed and final federalism assessments along with proposed and final rules. Mr. President, it should not be necessary to enact legislation to accomplish these things. Federal agencies should never issue rules without having the best and most complete information possible. Our State and local governments are ready, willing, and able to provide their expertise on how Federal rules will impact those governments' ability to get their jobs done. Common sense dictates that they be notified and consulted before the federal government regulates in a way that weakens or eliminates the ability of State and local governments to do their jobs, or duplicates their efforts. The current Administration and previous ones have recognized the value of having federal agencies consult with State and local governments. However, as was amply demonstrated by a recent GAO report, Executive Order requirements for federalism assessments have been ignored. The bill would correct this noncompliance by the Executive Branch, and ensure that independent agencies, as well, will engage in such consultation and publish assessments along with rules. Not only will the compilation and issuance of federalism assessments force the agencies to think through what they are doing, they will bolster the confidence of the public and regulated entities in the regulatory process by assuring them that their governments are acting in concert and avoiding conflicting or duplicative requirements. Our legislation also requires the Congressional Budget Office, with the assistance of the Congressional Research Service, at the end of each Congress, to compile a report on the number of statutory and judicially interpreted preemptions. This will constitute the first time such a complete report has been done, and the information will be valuable to the debate regarding the appropriate use of preemption to reach Federal goals. Mr. President, legislation to clarify when preemption occurs and otherwise strengthen the intergovernmental relationship has been endorsed by the major state and local government organizations. I would like to thank Senators Thompson and Voinovich and their staffs for their hard work in this area.

Mr. LEVIN

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

Mr. LEVIN. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. LEVIN. Mr. President, I join my dear friend, the chairman, in that sentiment about our staffs and our colleagues. This is a very complex bill. I think we have done it in record time, but it has taken the cooperation of all of our colleagues, the leadership on both sides, and of course our staff made it possible. We will have more to say about that after final passage. I think we are now waiting for the final high-sign from our staff that everything has been cleared.

Mr. LEVIN. We are ready.

Mr. LEVIN. It is my understanding that the creation of a medal under this section is solely at the discretion of the Secretary of Defense. amendment No. 535 (Purpose: To require the implementation of the Department of Defense special supplemental nutrition program In title VI, at the end of subtitle E, add the following:

Mr. LEVIN. This was prepared by Senator Lott's staff. Again, there were some slight modifications in this, which Senator Lott agreed to, which I proposed prior to the adoption of the amendment. This, in essence, is the summary of the Lott amendment. This, plus the numerous provisions in the Senate bill that came out of the Armed Services Committee, a commission on safeguarding security, counterintelligence at the facility, background check investigations now going on that had not been taking place, polygraph examinations, monetary penalties to be added to the criminal penalties, moratorium on laboratory-to-laboratory and foreign visitors in assignment programs, counterintelligence and intelligence program activities being organized, whistle-blower protection, notification of Congress of certain security and counterintelligence failures at these labs. This is a significant effort on the part of the Armed Services Committee. It was supplemented by the full Senate today. I don't think we ought to denigrate this effort on the part of the Armed Services Committee or of the Senate in adopting the amendment we adopted today by just suggesting we are not doing anything because in a few hours prior to a recess, without one hearing on the subject, we are not reorganizing the Department of Energy without even hearing from the Secretary of Energy. I think that suggestion is a denigration of what is in this bill, which was thoughtfully placed in this bill by the Armed Services Committee, and a denigration of the amendment of the majority leader, which we adopted here this morning on this floor. We should not characterize these kinds of efforts and diminish these kinds of efforts by sort of saying we are not doing anything before we are going home on recess. We are doing an awful lot, and there is more to be done. But we ought to do it in a way that will do credit to this institution, the Senate. We ought to do it promptly after the recess. We ought to do it after a hearing, where the Secretary of Energy is heard. The head of the Department should at least be heard. We received a letter from him today. Do we not want to hear from him prior to reorganizing the Department? That is not thoughtful. That is not the way to proceed to close the hole. That is a way of precipitously trying to do something and trying to get some advantage from the refusal of others to go along with that kind of precipitous action. But more important, I believe it would denigrate the significant steps that are in this bill, both as it came to the floor and as it was added by the majority leader with modifications, which I suggested, and that work is significant. It will close, we hope, most of the holes that have been in these labs in terms of trying to protect against espionage for 20 years, where nothing was done until finally last year the President issued a Presidential directive that started the process of tightening up the security at these laboratories. We should be proud of these efforts. They were done thoughtfully in committee by the majority leader, by Senators on the floor. We should not denigrate them and simply slough them off because there is not a precipitous reorganization of the entire Department 2 hours before the recess, without even having a hearing on the subject and hearing from the Secretary of the Department. That is more than 1 minute, Mr. President. I ask unanimous consent that the summary of the Lott amendment be printed in the Record.

Mr. LEVIN. Mr. President, Senator Bingaman has just put in the Record the extensive actions that are taken in this bill in order to enhance security at these labs, actions which were taken after some very thoughtful debate and discussion by the Armed Services Committee. Senator Bingaman has outlined those for the Record and for the Nation. I want to put in the Record at this time the summary of the amendment that we adopted here today. Senator Lott offered an amendment earlier today. It was modified somewhat. In essence, it does some of the following things: First, it requires the President to notify the Congress whenever an investigation is undertaken of an alleged violation of export control laws. It would require the President to notify Congress whenever an export license or waiver is granted on behalf of any person who is the subject of a criminal investigation. It would require the Secretary of Defense to undertake certain actions that would enhance the performance and effectiveness of the Department of Defense program for monitoring so-called satellite launch campaigns. It would enhance the intelligence community's role in the export license review process. It proposes a mechanism for determining the extent to which the classified nuclear weapons information has been released by the Department of Energy. It proposes putting the FBI in charge of conducting security background investigations of DOE laboratory employees. These are a long list of actions which are now in this bill, that started off in this bill from the Armed Services Committee that had been improved on the floor today. To suggest that we are not doing anything relative to trying to clamp down on espionage activities which have been going on for 20 years at these labs, it seems to me, is a total misstatement of what is in this bill that we will be voting on in a few minutes. I ask unanimous consent that a summary of the Lott amendment, again, slightly modified since this list has been prepared, but that a summary of the Lott amendment be printed in the Record at this time.

Mr. LEVIN. At this moment that is correct. We are going to do our best to see if we cannot get a few more to be acceptable, but it is getting difficult.

Mr. LEVIN. We are doing the best we can, but it is going to get more and more difficult to clear additional amendments. We have, I believe, cleared about 25 of the 40, roughly, that were sent to the desk. We just may not be able to clear many more because of differences on both sides.

Mr. LEVIN. If the Senator will yield, I concur with his suggestion that those who have amendments that have not been cleared come over. We do not want to raise false hopes that we will be able to clear many more of them because we have cleared, I believe, a goodly number.

Mr. LEVIN. Mr. President, I suggest the absence of a quorum.

Mr. LEVIN. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. LEVIN. Mr. President, the amendment is acceptable here. It performs a useful purpose. The Defense Department has in the past given the Senate these lists, but this updates it and gives us a little more detail. I think it is very important we know all of our missions and how many people are involved around the world. We have no objection to it at all.

Mr. LEVIN. Mr. President, I send an amendment to the desk on behalf of Senator Edwards.

Mr. LEVIN. I send an additional amendment to the desk on behalf of Senator Lincoln.

Mr. LEVIN. If the Senator would yield to me for that purpose.

Mr. LEVIN. Mr. President, on behalf of Senator Reid, I send an amendment to the desk; on behalf of Senator Bryan, I send an amendment to the desk; on behalf of Senators Harkin and Boxer, I send an amendment to the desk; on behalf of Senator Leahy, I send an amendment to the desk; on behalf of Senator Conrad, I send three amendments to the desk; on behalf of Senator Lautenberg, I send two amendments to the desk; and on behalf of Senator Sarbanes, I send an amendment to the desk.

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

Mr. LEVIN. I would ask unanimous consent that the Senator from Texas be recognized, and then we return to the previous order. But before offering that suggestion, I ask the Senator what her amendment is.

Mr. LEVIN. Mr. President, I move to reconsider the vote.

Mr. LEVIN. The Comptroller General must concur with the Secretary's certification. I believe that is a clear violation of the separation of powers. In Bowsher v. Synar, the Supreme Court ruled: To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. So, except for that part requiring a legislative concurrence or legislative officer's concurrence with the Secretary's certification, I think that amendment would have been acceptable. With that additional provision, I think it is unacceptable as it violates separation of powers and the Supreme Court ruling in the Bowsher case. Mr. ASHCROFT addressed the Chair.

Mr. LEVIN

Mr. LEVIN. Mr. President, I rise today to discuss concealed weapons laws. Currently, in Michigan, if a person wants to obtain a permit for a concealed weapon, he or she must apply at the local county gun board. Each one of these gun boards is made up of three members: the local sheriff, county prosecutor and a designee of the state police. The gun boards base their decisions on a person's demonstrated need for a gun, and that person's criminal record, if any, and on local conditions. Local decisionmaking makes sense. Local law enforcement officials know the local environment, local citizens, and can best assess the local impact of increasing the numbers of weapons carried in public. Last night, the Michigan State Senate passed a bill that, if signed into law, would take discretion away from local gun boards and put more weapons on our streets and in public places. In my view, eliminating the authority of local gun boards would be detrimental to public safety in Michigan and take us in the opposite direction than we are heading in Congress. More important than my opinions are the views of the law enforcement community in Michigan. Every major law enforcement agency in the state of Michigan including the State Police, Michigan Association of Chiefs of Police, Michigan Prosecuting Attorneys Association, Michigan Municipal League as well as many other organizations such as the Michigan Municipal League have made statements opposing this bill. One of the bills that is now before a conference committee of the Michigan Legislature is referred to as a ``shall issue'' bill. The NRA has been lobbying Michigan legislators to support a ``shall issue'' policy. The legislation is called ``shall issue'' because it mandates that if a person passes an FBI Federal background check, the gun board ``shall issue'' him a permit to carry a concealed weapon, without requiring a show of need or the condition of other local circumstances. This legislation goes in the wrong direction. It would increase the danger of gun violence in our communities. I have seen no evidence, that people who have a legitimate need to carry a gun for protection are being denied the ability to do so. The numbers demonstrate that the overwhelming majority of requests for concealed weapons permits are approved. It's important for public safety that local gun boards continue to make such judgments. Here in Congress, we are working hard to reduce the easy availability of lethal weapons to people who should not have them. I do not want to see my State go in the other direction by passing a law that encourages the spread of concealed weapons in public places. Michigan has not been the only state targeted for these NRA-backed concealed weapons bills. Yet, despite the best efforts of the NRA, the ``shall issue'' policy has been rejected by a bipartisan group of legislators in more than 10 States. That's because of the power of people in those States who united to demand action. Voters in the State of Missouri recently defeated a ``shall issue'' proposal much like the one in the Michigan Legislature. Missourians voted to keep in place prudent regulations for carrying concealed weapons--regulations that were first enacted in reaction to the days of Jesse James and the outlaw gangs. I believe the majority of Michigan's citizens feel the same way.