Daniel Moynihan

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, this amendment retains existing bankruptcy law for low-income persons. A feature of the law as it now exists and which is perfectly sensible is the presumption that people who incur debt shortly before declaring bankruptcy have acted fraudulently. Clearly, this can be the case, is often the case, and is proven so. However, the bill presently before the Senate extends the time (from 60 days to 90 days for consumer debts, for instance) in which this presumption of fraudulent activity takes place, and it changes the dollar amounts. We propose to keep the law as it is for low-income persons--people below the median income level, who already live hand- to-mouth, who often find themselves in a bind, with no intent to defraud, and keep borrowing until they are in bankruptcy situations. They won't have lawyers and can't defend against presumptions. We simply keep the existing law. Deal with true fraud and important bankruptcies as the bill proposes to do but leave the small and hapless folk to their small and hapless fortunes. The administration supports this measure, as does my friend, the senior Senator from Vermont, Mr. Leahy, and his associate in these matters, Ms. Landrieu of Louisiana.

Mr. MOYNIHAN. Parliamentary inquiry.

Mr. MOYNIHAN. Is it in order for me to offer a second-degree amendment that would preclude any purchase of Gucci loafers?

Mr. MOYNIHAN. I made my point. I withdraw my request.

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

Mr. MOYNIHAN. I so move.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, the amendment is a small matter in the larger context of the legislation we are dealing with, but a very large matter to the people we are talking about who are low-income debtors. This addresses two aspects of the bill that have disproportionate negative impacts on low-income debtors. The first aspect concerns consumer debt and cash advances. The second relates to debt incurred to pay nondischargeable debt. By nondischargeable debt, we mean the debt a consumer has to repay even if they declare bankruptcy. There are very common-sense provisions in our bankruptcy laws that say if you acquire a large debt in a short period before declaring bankruptcy, there is some presumption that you knew where you were heading and you were taking advantage of the bankruptcy laws. Under current law, consumer debts owed to a single creditor-- excluding ``goods or services reasonably necessary''--of more than $1,075 obtained within 60 days of bankruptcy and cash advances of more than $1,075 obtained within 60 days of bankruptcy are presumed to be fraudulent and thus nondischargeable. S. 625 seeks to expand the circumstances under which such transactions would be considered fraudulent in two ways: First, by lowering the threshold amount that would trigger the fraudulent presumption to $250 for consumer debts and $750 for cash advances; and, second, by increasing the number of days prior to bankruptcy during which debt incurred and cash advances obtained would be presumed fraudulent--to 90 days for consumer debts and to 70 days for cash advances. Under this amendment, the new threshold amounts of money and numbers of days proposed in S. 625 would apply to debtors whose total monthly income is greater than the median monthly income, but they would not apply to low-income debtors. Low-income debtors do not have much money and, at times, need to charge certain items or to take a cash advance to buy necessary goods, such as clothing. It is wrong--or so I believe--to assume these people acted fraudulently. They acted of necessity--or I believe that is a fair assumption. They did what they needed to do to get by. The thresholds as they exist under current law would continue to apply to median and below-median income families. I will make the point that we are, by this amendment, not changing current law. We are not introducing a novel concept into bankruptcy proceedings. We are providing for low-income persons to continue to have the same presumptions in their favor, or against them, that we have lived with for many years, with fair success, as I understand it. S. 625 adds a new exception to discharge for debt incurred to pay nondischargeable debt and creates a presumption of nondischargeability for debts incurred to pay such debt within 70 days of filing the bankruptcy petition. This amendment would retain the current state of the law as to debt incurred to pay nondischargeable debt for median and below-median income families. I do believe this is a worthy amendment. I commend it to my colleagues. I have had the opportunity to have worked through this, and I express my own gratitude that in many years distant past I did not decide to become a bankruptcy lawyer. That would have been a complexity beyond my capacity. Mr. President, I thank the Chair for his courtesy and the Senate for its equal attention. I commend this matter. I think it is something we would be wise to do. The essence of the proposal is: For low-income debtors, don't change the rules. They are not the problem. Don't create problems for them. A well-documented and prevalent form of abuse by some creditors is the filing of unfounded complaints alleging that debtors committed fraud, or the use of the threat of such a complaint, to coerce debtors into giving up valuable bankruptcy rights, typically by agreeing that all or part of the debt is not discharged. Such threats are especially potent against low-income debtors. That is why the safe harbor in my amendment is necessary. These debtors often do not have lawyers, and they certainly do not have the funds to pay hundreds or even thousands of dollars to defend against creditor litigation. When a creditor threatens to or actually files a complaint alleging fraud, the debtor has to choose either to pay to defend against the complaint (requiring a lump sum payment to an attorney of at least several hundred dollars and usually more) or to make a deal with the creditor (who will offer to take a reaffirmation or settlement with ``low monthly payments'' of perhaps $50). Most cash-strapped debtors will take the ``low monthly payment'' option, often the only thing they can afford, regardless of whether the creditor has a good case. This scenario is played out already, in the area of dischargeability litigation. Several courts have found practices of creditors filing ``fraud'' dischargeability cases, for which there is no factual basis, simply to coerce reaffirmations, and actually dropping those cases when they are defended. Most of these cases are in fact settled through reaffirmations, because the debtors have no choice but to take the ``low monthly payment'' option. The new presumptions of fraud proposed in S. 625, against debtors who have charged as little as $250 on a credit card, and under the amorphous standard that a debt was incurred to pay another debt, will embolden creditors to file many more of these complaints. My amendment to S. 625 addresses these presumptions. I will explain how. First, under current law, consumer debts owed to a single creditor (excluding ``goods or services reasonably necessary'') of more than $1,075 obtained within 60 days of bankruptcy and cash advances of more than $1,075 obtained within 60 days of bankruptcy are presumed to be fraudulent, and thus nondischargeable. S. 625 seeks to expand the circumstances under which such transactions would be considered fraudulent in two ways: first, by lowering the threshold amount that would trigger the fraud presumption to $250 for consumer debts and to $750 for cash advances; and, second, by increasing the number of days prior to bankruptcy during which debt incurred and cash advances obtained would be presumed fraudulent (to 90 days for consumer debts and to 70 days for cash advances). Under my proposed amendment, the threshold amounts of money and numbers of days triggering a presumption of fraud in S. 625 would only apply to debtors whose total monthly income is greater than the median monthly income, while the current thresholds would continue to apply to median and below-median income families. Second, S. 625 adds a new exception to discharge for debt--a loan or credit card debt--incurred to pay nondischargeable debt with the intent to discharge such debt in bankruptcy; it also creates a presumption of nondischargeability for debts incurred to pay nondischargeable debt within 70 days prior to filing the bankruptcy petition. My proposed amendment would retain the current state of the law as to debt incurred to pay nondischargeable debt for median and below-median income families. Nothing in the amendment would prevent a creditor with evidence of fraud from pursuing a case against a low-income debtor. However, the creditor would not be entitled to the benefit of a presumption to make its case. And low-income debtors would not be forced to spend money they don't have to defend against an expanded presumption of their dishonesty. The filing of abusive dischargeability complaints is not a new phenomenon in bankruptcy law. It was the subject of legislation when the Bankruptcy Code was first passed in 1978. At that time, a strong attorney's fee provision was added to the Code to deter such creditor tactics. The House Judiciary Committee report (95-595, p.131) found the problem prevalent at that time: The threat of litigation over this exception to discharge and its attendant costs are often enough to induce the debtor to settle for a reduced sum, in order to avoid the costs of litigation. Thus, creditors with marginal cases are usually able to have at least part of their claim excepted from discharge (or reaffirmed), even though the merits of the case are weak. Unfortunately, in 1984 Congress weakened the attorney's fees provision and added, for the first time, a presumption of fraud based on purchases in the period immediately before bankruptcy. Then the concerns of the House Judiciary Committee proved prescient. Creditors began filing fraud complaints in large numbers, and courts have found that most debtors settle those complaints, regardless of how weak they are, rather than incur the expense of litigation. The amendment before us is a very modest one. It does not return to the law the strong attorney's fee provision enacted in 1978. It does not eliminate the presumptions of fraud that were added in 1984 and made more expansive in 1994. It does not even completely eliminate the additional presumptions of fraud added by this bill, or the new exceptions to discharge. The only thing my amendment does is to make these new presumptions of fraud inapplicable to families below median income--those who would have the most difficulty affording a defense against unfounded fraud complaints. The amendment will not shelter anyone who commits fraud. The current fraud provisions of the Bankruptcy Code will continue to apply to them. Those provisions already clearly deem fraudulent any debt that is incurred with no intent to pay it or with an intent to discharge it in bankruptcy. My amendment merely requires that a creditor produce meaningful evidence to establish fraud, rather than rely on S. 625's new presumption of fraud, at least in cases filed by low-income families who are most vulnerable to, and least able to afford the expenses associated with, creditor-initiated litigation. Privilege of the Floor

Mr. MOYNIHAN. Mr. President, seeing no other Senators seeking recognition, I suggest the absence of a quorum.

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

Mr. MOYNIHAN. Mr. President, I ask unanimous consent that during the pendency of this amendment, Kathleen McGowan of my staff be allowed privileges of the floor.

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

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, on November 6, Nat Hentoff devoted his ever insightful column to the Kafka-like use of secret evidence by our Federal government in deportation proceedings. Once again, Mr. Hentoff has highlighted yet another distressing aspect of the 1996 Anti-Terrorism and Effective Death Penalty Act. I ask that Mr. Hentoff's column be printed in the Record. The column follows. [From the Washington Post, Nov. 6, 1999] Prosecution in Darkness (By Nat Hentoff) Around the country, 24 immigrants, most of them Muslim or of Arab descent, are being detained--that is, imprisoned--by the Immigration and Naturalization Service, which intends to deport them. None of them, nor any of their lawyers, has been allowed to see the evidence against them or to confront their accusers. This denial of fundamental due process is justified on the grounds of national security. In 1996, the president signed the Anti-Terrorism and Effective Death Penalty Act, which authorized secret evidence. A federal district judge in Newark, N.J., William Walls, has now described this as ``government processes initiated and prosecuted in darkness.'' (The use of secret evidence, however, goes back to the 1950s). Although many active lawsuits, in various stages, are attacking this use of secret evidence, Judge Walls is the first jurist to flatly declare the use of such evidence unconstitutional. His decision was in the case of Hany Mahmoud Kiareldeen, a Palestinian who has been in this country for nine years, managed an electronics store in New Jersey and is married to an American citizen. First arrested for having an expired student visa, he later was accused of meeting in his New Jersey home, a week before the 1993 World Trade Center bombing, with one of the men convicted in that attack. He also was accused of threatening to kill Attorney General Janet Reno. The source of this classified evidence is the FBI's Joint Terrorism Task Force. But, as Judge Walls has noted, the INS failed to produce any witnesses--either from the FBI or from the INS--or ``original source material'' in support of these charges. Therefore no witnesses could be cross-examined at the hearings. At the hearings, Kiareldeen produced witnesses and other evidence that he was not living in the town where he is supposed to have met with bombing conspirators. And an expert witness, Dr. Laurie Myleroie, appeared for him. She is described by James Fox, former head of the FBI's New York office, as ``one of the world-class experts regarding Islam and the World Trade Center bombing.'' She testified that no evidence showed that the accused had any connection with that bombing. The government's evidence, said the judge, failed ``to satisfy the constitutional standard of fundamental fairness.'' The INS--part of the Justice Department--denied Kiareldeen's ``due process right to confront his accusers . . . even one person during his extended tour through the INS's administrative procedures.'' These due process protections, declared the judge, ``must be extended to all persons within the United States, citizens and resident aliens alike. . . . Aliens, once legally admitted into the United States are entitled to the shelter of the Constitution.'' The judge went even farther. Even if the government's reliance on secret evidence has been provably based on a claim of national security, Judge Walls-- quoting from a District of Columbia Court of Appeals decision, Rafeedie v. INS--asked ``whether that government interest is so all-encompassing that it requires that the petitioner be denied virtually every fundamental feature of due process.'' In Rafeedie, Judge David Ginsburg noted in 1989 that the permanent resident alien in That case, in this country for 14 years, was ``like Joseph K. in Kafka's `The Trial' in that he could only prevail if he ware able to rebut evidence that he was not permitted to see.'' Kiareldeen is now free after 19 months, but Judge Walls's decision that secret evidence is unconstitutional applied only to the state of New Jersey. The INS did not pursue its appeal because it wants to avoid a Supreme Court decision. The INS continues to insist it will keep on using secret evidence. One of the victims of these prosecutions in darkness still in prison is Nasser Ahmed, who has been in INS detention for 3\1/2\ years. Congress has the power to bring in the sunlight by passing the Secret Evidence Repeal Act of 1999 (H.R. 2121)-- introduced in June by Rep. David Bonior (D-Mich.). It would ``abolish the use of secret evidence in American courts and reaffirm the Fifth Amendment's guarantee that no person shall be deprived of liberty without due process.'' Will a bipartisan congress vote in favor of the Constitution? And then, will the president allow the removal of the secret evidence provisions of his cherished 1996 Anti- Terrorism Act?

Mr. MOYNIHAN

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

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, I rise now to echo the sentiment of my friend and colleague from Michigan, Senator Levin, that the passage of the Republican drug amendment marks a bittersweet moment. I, too, regret that I had to vote against the Republican drug amendment today, because it contains a provision that is very important to me, which I will address in a moment. I voted against the Republican drug amendment as a whole because of the provision that would expand the number of people who would come within the reach of mandatory minimum sentences for certain offenses involving cocaine. I feel very strongly that the correct way to address the problem of addiction is not by increasing the reach of mandatory minimum sentences, but rather to increase access to treatment. And that is why passage of the Drug Addiction Treatment Act of 1999 (S. 324), in Subtitle B, Chapter 2, of the Republican drug amendment, marks a milestone in the treatment of opiate dependence. The Drug Addiction Treatment Act increases access to new medications, such as buprenorphine, to treat addiction to certain narcotic drugs, such as heroin. I thank my colleagues Senator Levin, Senator Hatch, and Senator Biden for their leadership and dedication in developing this Act, and regardless of the outcome of the Bankruptcy Reform Act, one way or another, I look forward to seeing the Drug Addiction Treatment Act of 1999 become law. Determining how to deal with the problem of addiction is not a new topic. Just over a decade ago when we passed the Anti-Drug Abuse Act of 1988, I was assigned by our then-Leader Robert Byrd, with Sam Nunn, to co-chair a working group to develop a proposal for drug control legislation. We worked together with a similar Republican task force. We agreed, at least for a while, to divide funding under our bill between demand reduction activities (60 percent) and supply reduction activities (40 percent). And we created the Director of National Drug Control Policy (section 1002); next, ``There shall be in the Office of National Drug Control Policy a Deputy Director for Demand Reduction and a Deputy Director for Supply Reduction.'' We put demand first. To think that you can ever end the problem by interdicting the supply of drugs, well, it's an illusion. There's no possibility. I have been intimately involved with trying to eradicate the supply of drugs into this country. It fell upon me, as a member of the Nixon Cabinet, to negotiate shutting down the heroin traffic that went from central Turkey to Marseilles to New York--``the French Connection''-- but we knew the minute that happened, another route would spring up. That was a given. The success was short-lived. What we needed was demand reduction, a focus on the user. And we still do. Demand reduction requires science and it requires doctors. I see the science continues to develop, and The Drug Addiction Treatment Act of 1999 will allow doctors and patients to make use of it. Congress and the public continue to fixate on supply interdiction and harsher sentences (without treatment) as the ``solution'' to our drug problems, and adamantly refuse to acknowledge what various experts now know and are telling us: that addiction is a chronic, relapsing disease; that is, the brain undergoes molecular, cellular, and physiological changes which may not be reversible. What we are talking about is not simply a law enforcement problem, to cut the supply; it is a public health problem, and we need to treat it as such. We need to stop filling our jails under the misguided notion that such actions will stop the problem of drug addiction. The Drug Addiction Treatment Act of 1999 is a step in the right direction.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, I am pleased to vote to reappoint Surface Transportation Board, STB, Chairman Linda J. Morgan to serve another term on that panel even though I am troubled by some STB decisions concerning the CSX and Norfolk Southern acquisition of Conrail properties in New York State. I am encouraged, however, by Chairman Morgan's responsiveness to my requests, and those of my colleagues, to monitor the freight rail problems that have plagued New Yorkers since the June 1, 1999 implementation of the CSX/Norfolk Southern acquisition. Just last month, Chairman Morgan came to Buffalo to hear the concerns of local shippers. As she begins her second term as Chairman of the STB, Linda Morgan has presided over the largest rail mergers in this Nation's history. Now the hard part begins. If service failures persist, Chairman Morgan must exercise her statutory authority to impose conditions upon the railroads. This will be no easy task. Revising one's work in the face of significant opposition requires courage. But I am confident that should the public interest so require, Chairman Morgan will respond boldly. Nothing short of the future of freight rail in the United States is at stake. One additional thought is the role of organized labor in the freight rail industry. I would note that I do not find it fair that an interpretation of current Federal law permits the STB to revisit collective bargaining agreements dozens of years after a merger has been completed. There is a certain logic to providing the STB with the authority to abrogate local, State, and Federal laws to ensure the success of a merger. But the prospect that collective bargaining agreements--private contracts--can be the subject of renegotiation and mediation years after a merger has been consummated is troubling. In the 2nd session of the 106th Congress I will seek legislation to constrict the window of time following the approval of a merger in which unions can be compelled to renegotiate collective bargaining agreements. In closing, Mr. President, the Surface Transportation Board faces extraordinarily difficult decisions in the next few years. I believe that Linda Morgan's experience as a trusted advisor and counsel to the Senate Commerce Committee and her chairmanship of the STB have prepared her well for the challenges that lie ahead. I yield the floor.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, I want to thank my colleagues for voicing their justified concerns on this important issue. I understand that there is the potential for language to be added to one of the remaining appropriations bills that would interfere with the efforts of a number of states to seek relief from dangerous air pollution they receive from a number of large coal-burning facilities which may have violated the Clean Air Act. As Senator Lieberman has explained, a number of coal-burning facilities were ``grandfathered,'' exempting them from pollution control requirements. Congress believed that utilities would soon retire these older plants. The grandfathered facilities were given permission to proceed with routine maintenance, but any major modifications would be subject to review. It now appears that a number of these facilities did circumvent the law by increasing generating capacity without installing the appropriate pollution control technologies. Now, it appears these same facilities--after receiving notification that New York and potentially other states intend to sue for these violations of the Clean Air Act--may, once again, circumvent the law by encouraging the adoption of a rider which would interfere with these lawsuits. Any effort by implicated utilities to thwart efforts of States to obtain injunctive relief, which States could use to mitigate damage which has already occurred, is inappropriate. Throughout my career, I have been a strong proponent of allowing the Courts to do their work without interference of politics--indeed, that was the intent of the Framers of the Constitution. Madison and Hamilton eloquently explained the importance of a balance of powers in The Federalist Papers. The Framers of the Constitution presumed conflict. The Constitution assumes self-interest. It carefully balances the power by which one interest will offset another interest, and the outcome will be, in that wonderful phrase of Madison, `the defect of better motives.' The States must be allowed to protect their rights. I should think that any Member of this body ought to defer to the courts before which this issue is now being placed.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, a milestone will occur on Wednesday, December 15th, while the Senate is in recess, which I do not want to go unacknowledged. Dr. John O. Lusins of Oneonta, New York will celebrate his sixtieth birthday. In his five decades, this New Yorker has grown from a childhood war refugee into a beloved husband, devoted physician, respected oenophile, and caring father of five children. Suffice to say, Dr. Lusins has accomplished the American dream. I wish him hearty congratulations on this achievement. Named after his physician father, John O. Lusins was born December 15th, 1939 in the Baltic country of Latvia. At age twelve, John and his mother, Elza, immigrated to the United States after being displaced for several years as a result of World War II. Seeking a better life after witnessing the atrocities in Europe, the two lived briefly in Greensboro, North Carolina before settling in Yonkers, New York. John entered the Andrus Home for Children at age fifteen, and proved himself to be an anomaly among his peers by graduating from Charles E. Gorton High School in 1958. With continued perseverance, Lusins, under the aegis of a SURDNA scholarship, went on to graduate from Columbia University in 1963 and the Albany School of Medicine in 1967. During these years, John not only excelled academically but proved himself as an athlete, leader, and a patriot. Throughout his collegiate career, John powered Columbia's varsity crew down the Harlem River and was named captain for his senior year in 1962. Following his junior year, however, Lusins was called to military duty in Germany as the Soviets erected the Berlin Wall. After fulfilling his military obligations, he returned to New York and subsequently finished college. Before leaving for Berlin, John met a dashing young lady by the name of Anna Marie Dahlgard Bistany. Upon his return, the two promptly fell in love and were married on the 17th of August, 1963. Their first children were two daughters: Gillian, born in 1964, and Noelle in 1966. Three boys followed: Carl in 1968, John in 1973, and, finally, Matthew in 1976. The family moved over the years, from Yonkers to Bronxville, finally making Oneonta their home in 1982. Filling a needed void, John established his neurology practice at Oneonta's A.O. Fox Hospital in the same year. Since then, Lusins and his practice, now the multi- partner Catskill Neurodiagnostics and MRI, has become one of Central New York's finest and most respected medical centers. Revered not only for his medical capabilities, Dr. Lusins has also established himself as a prominent American asset to the world of fine wine. Equipped with erudition and a discerning palate, this afficionado is not only a member of the prestigious New York Commandeire de Bordeaux but has proficiently ascended the ranks of the Confrerie des Chevaliers du Tastevin to become their distinguished Delegue General of the Northeast. Dedicated to these roles, Dr. Lusins educates family, colleagues, and all constituents about the intricacies and appreciation of wine. This significant task should not be taken lightly, as our Founding Framer and President Thomas Jefferson once noted: By making this wine vine known to the public, I have rendered my country as great a service as if I had enabled it to pay back the national debt. . . Its extended use will carry health and comfort to a much enlarged circle. With the gathering of all his friends and family, I wish Dr. Lusins a splendid sixtieth birthday and continued success in all his endeavors.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, I rise today to honor my fellow New Yorker George Gabriel on the occasion of his 90th birthday. George has been a war veteran, tennis instructor, lawyer, and vice president of Broadcast Music, Incorporated (B.M.I.). His family will always know him for his love of classical music, quick wit, and pertinent advice. During World War II, George was stationed in Australia and the Philippines. He distinguished himself as a member of the Army's code- breaking operations, reading enciphered cables intercepted from Japan. This might explain his affinity for the always challenging New York Times crossword puzzles! After the war, he graduated from Brooklyn Law School and went to work for B.M.I. His work in the field of music copyright prompted a quick rise up the corporate ladder. He was eventually promoted to the position of vice president, where he remained until the time of his retirement. Yet, for all his professional achievements, it is his personal life that gives him the most fulfillment. This epochal moment marks a grand achievement for a man who is a mentor to grandchildren, nieces, and nephews. I offer my prayers to George for continued good health and cheer, and close with a particularly apt Irish blessing: May joy and peace surround you, Contentment latch your door, And happiness be with you now, And bless you evermore.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, the Senate has just confirmed Daniel French as the new United States Attorney for the Northern District of New York and may I say I could not be more pleased. Dan French is a native of the District having been born and brought up in Jefferson County, graduated cum laude from the University of the State of New York College at Oswego and is a cum laude graduate of the Syracuse University Law School where he served as an editor of the Law Review. Following law school Mr. French clerked for Judge Rosemary Pooler. Judge Pooler was then a United States District Court Judge and not sits on the Second Circuit Court of Appeals. Mr. French then joined the U.S. Attorney's office where he served until being named interim United States Attorney by Attorney General Janet Reno. Like all of the District Court and U.S. Attorney Candidates I have recommended to the President, Mr. French was sent to me by my Screening Panel after he and other candidates were seen and their credentials reviewed. But I must say I was particularly pleased to send Dan's name to the President. And pleased that the President, after reviewing his record, agreed that he should be nominated. For Dan French was with me for several years as a professional staff member on the Environment and Public Works Committee, the Committee on Finance and on my personal staff. I know him well. And I know that he has the kind of intelligence, learning, judgment and integrity that will make him an outstanding U.S. Attorney. Mr. President, the Northern District of New York, in which our family home at Pindars Corners is located is vast. It services 3.5 million citizens and encompasses 32 of New York's 62 counties, covering 60% of the State's geographical area. By comparison, the district is larger than the combined land areas of Vermont, Massachusetts, Connecticut and Rhode Island. This large area with a diverse population is fortunate to have a native son, who understands its ways, enforcing the laws of the United States. Years ago, another upstater, Supreme Court Justice Robert H. Jackson wrote that ``the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.'' I know that Dan French will be guided by Justice Jackson's words. Dan French will be a splendid U.S. Attorney and I congratulate him on his confirmation and salute his wife, television broadcaster Kelly French and their two children Margaret Anne and Gavin Mitchell.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, I wish to point out a concern I have with a seemingly innocuous, seemingly beneficial, provision contained in the Domenici amendment to S. 625, the ``Bankruptcy Reform Act of 1999''--Section 68. Modification of Exclusion for Employer Provided Transit Passes. The goal of the provision--to expand the use of the Federal transit benefit, a ``qualified transportation fringe'' in the vernacular--is admirable, but I fear that the way in which the provision pursues that goal may, in fact, unintentionally undermine the transit benefit. The employer-provided Federal transit benefit has evolved since its creation within the Deficit Reduction Act of 1984 as a $15 per month ``de minimis'' benefit. After fourteen years of gradual change, last year's Transportation Equity Act for the 21st Century (TEA-21) codified the benefit as a ``pre-tax'' benefit of up to $65 per month. The cap will increase to $100 in 2002. The ``pre-tax'' aspect was a major reform because it provided an economic incentive--payroll tax savings-- for employers to offer the program. Companies would save money by offering a benefit of great utility to their workers while simultaneously removing automobiles from our choked and congested urban streets and highways. It is effective public policy. (As an aside, I should note that a similar pre-tax benefit of $175 per month exists for parking, and so despite all we know about air pollution and the intractable problems of automobile congestion, Congress continues to encourage people to drive. Discouraging perhaps, but we're closing the gap. If one doesn't have thirty years to devote to social policy, one should not get involved!) Quite consciously, and conscientiously, Congress established a bias in the statute toward the use of vouchers--which employers can distribute to employees--over bona fide cash reimbursement arrangements. We permitted employers to use cash reimbursement arrangements only when a voucher program was not readily available. We reasoned that because the vouchers could only be used for transit, we would eliminate the need for employees to prove that they were using the tax benefit for the intended purpose. Furthermore, by stipulating that voucher programs are the clear preference of Congress, we are compelling transit authorities to offer better services--monthly farecards, unlimited ride passes, smartcards, et al.--to the multitudes of working Americans who must presently endure all manner of frustrations and indignities during their daily work commute. While the new law has only been in effect for little more than a year, the program is catching on in our large metropolitan areas and should continue to expand. We have been alerted, however, to a legitimate concern of large multistate employers. Several of these companies have noted that establishing voucher programs can be arduous and unwieldy when the companies must craft separate programs in various jurisdictions with different transportation authorities. These difficulties, coupled with an expertise in administering cash reimbursement programs, have convinced the companies that bona fide cash reimbursement programs are more practical. Fair enough. We should, therefore, make it easier for such companies to offer the benefit through cash reimbursement arrangements. While I am committed to that end, I have serious reservations about the repeal of the voucher preference contained in the Domenici amendment. My main objection is that the U.S. Treasury is currently developing substantiation regulations for the administration of this benefit through cash reimbursement arrangements. These regulations will provide companies with a clear understanding of their obligations in the verification of their employees' transit usage, an understanding which does not exist today. Until these regulations are promulgated, voucher programs offer the only true mechanism of verification, as vouchers, unlike cash, are useless unless enjoyed for their intended purpose. The Congress should not take an action that might rapidly increase the use of a tax benefit without the existence of accompanying safeguards to ensue the program's integrity. I will work with my colleagues on the Finance Committee, with my revered Chairman, and any Senator interested in this issue, to improve the ease with which companies can offer this important benefit to their employees. It is, after all, in our national interest. But I must strongly oppose efforts to repeal the voucher preference until the Treasury establishes a regulatory framework for cash reimbursement. We have been told to expect the regulations by mid-January. We anxiously await their arrival. Mr. DOMENICI addressed the Chair.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, Please read these remarks! A.M. Rosenthal has just this past Friday concluded fifty-five years as a reporter, editor, and columnist for The New York Times. There has been none such ever. Nor like to be again. Save, of course, that this moment marks a fresh start for the legendary, and although he would demur, beloved Abe. Mr. President, I ask unanimous consent that A.M. Rosenthal's last column and an editorial from Friday's Times be printed in the Record. The material follows: [From The New York Times, Nov. 5, 1999] On My Mind (By A.M. Rosenthal) On Jan. 6, 1987, when The New York Times printed my first column, the headline I had written was: ``Please Read This Column!'' It was not just one journalist's message of the day, but every writer's prayer--come know me. Sometimes I wanted to use it again. But I was smitten by seizures of modesty and decided twice might be a bit showy. Now I have the personal and journalistic excuse to set it down one more time. This is the last column I will write for The Times and my last working day on the paper. I have no intention of stopping writing, journalistically or otherwise. And I am buoyed by the knowledge that I will be starting over. Still, who could work his entire journalistic career--so far--for one paper and not leave with sadnesses, particularly when the paper is The Times? Our beloved, proud New York Times--ours, not mine or theirs, or yours, but ours, created by the talents and endeavor of its staff, the faithfulness of the publishing family and, as much as anything else, by the ethics and standards of its readers and their hunger for ever more information, of a range without limit. Arrive in a foreign capital for the first time, call a government minister and give just your name. Ensues iciness. But add ``of The New York Times,'' and you expect to be invited right over and usually are; nice. ``Our proud New York Times''--sounds arrogant and is a little, why not? But the pride is individual as well as institutional. For members of the staff, news and business, the pride is in being important to the world's best paper-- you hear?--and being able to stretch its creative reach. And there is pride knowing that even if we are not always honest enough with ourselves to achieve fairness, that is what we promise the readers, and the standard to which they must hold us. I used to tell new reporters: The Times is far more flexible in writing styles than you might think, so don't button up your vest and go all stiff on us. But when it comes to the foundation--fairness--don't fool around with it, or we will come down on you. Journalists often have to hurt people, just by reporting the facts. But they do not have to cause unnecessary cruelty, to run their rings across anybody's face for the pleasure of it--and that goes for critics, too. When you finish a story, I would say, read it, substitute your name for the subject's. If you say, well, it would make me miserable, make my wife cry, but it has no innuendo, no unattributed pejorative remarks, no slap in the face for joy of slapping, it is news, not gutter gossip, and as a reporter I know the writer was fair, then give it to the copy desk. If not, try again--we don't want to be your cop. Sometimes I have a nightmare that on a certain Wednesday-- why Wednesday I don't know--The Times disappeared forever. I wake trembling; I know this paper could never be recreated. I will never tremble for the loss of any publication that has no enforced ethic of fairness. Starting fresh--the idea frightened me. Then I realized I was not going alone. I would take my brain and decades of newspapering with me. And I understood many of us had done that on the paper--moving from one career to another. First I was a stringer from City College, my most important career move. It got me inside a real paper and paid real money. Twelve dollars a week, at a time when City's free tuition was more than I could afford. My second career was as a reporter in New York, with a police press pass, which cops were forever telling me to shove in my ear. I got a two-week assignment at the brand-new United Nations, and stayed eight years, until I got what I lusted for--a foreign post. I served The Times in Communist Poland, for the first time encountering the suffocating intellectual blanket that is Communism's great weapon. In due time I was thrown out. But mostly it was Asia. The four years in India excited me then and forever. Rosenthal, King of the Khyber Pass! After nine years as a foreign correspondent, somebody decided I was too happy in Tokyo and nagged me into going home to be an editor. At first I did not like it, but I came to enjoy editing--once I became the top editor. Rosenthal, King of the Hill! When I stepped down from that job, I started all over again as a times Op-Ed columnist, paid to express my own opinions. If I had done that as a reporter or editor dealing with the news, I would have broken readers' trust that the news would be written and played straight. Straight does not mean dull. It means straight. If you don't know what that means, you don't belong on this paper. Clear? As a columnist, I discovered that there were passions in me I had not been aware of, lying under the smatterings of knowledge about everything that I had to collect as executive editor--including hockey and debentures, for heaven's sake. Mostly the passions had to do with human rights, violations of--like African women having their genitals mutilated to keep them virgin, and Chinese and Tibetan political prisoners screaming their throats raw. I wrote with anger at drug legitimizers and rationalizers, helping make criminals and destroying young minds, all the while with nauseating sanctimony. As a correspondent, it was the Arab states, not Israel, that I wanted to cover. But they did not welcome resident Jewish correspondents. As a columnist, I felt fear for the whittling away of Israeli strength by the Israelis, and still do. I wrote about the persecution of Christians in china. When people, in astonishment, asked why, I replied, in astonishment, because it is happening, because the world, including American and European Christians and Jews, pays almost no attention, and that plain disgusts me. The lassitude about Chinese Communist brutalities is part of the most nasty American reality of this past half-century. Never before have the U.S. government, business and public been willing, eager really, to praise and enrich tyranny, to crawl before it, to endanger our martial technology--and all for the hope (vain) of trade profit. America is going through plump times. But economic strength is making us weaker in head and soul. We accept back without penalty a president who demeaned himself and us. We rain money on a Politburo that must rule by terror lest it lose its collective head. I cannot promise to change all that. But I can say that I will keep trying and that I thank God for (a) making me an American citizen, (b) giving me that college-boy job on The Times, and (c) handing me the opportunity to make other columnists kick themselves when they see what I am writing, in this fresh start of my life.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, we have been debating the subject of banking in the Senate since the 18th century. We began to ask ourselves a question, could we have a national bank, which Mr. Hamilton, of New York, thought we could do and should do. We created one. It had a very brief tenure. It went out of existence just in time that the Federal Government had no financial resources for the War of 1812. So it was reinstituted, in 1816 for 20 years, and went out of existence just in time for the panic of 1837. We went through greenbacks. There must have been a wampum period. We went to gold coinage. Then a free coinage of silver dominated our politics for almost two decades, as farmers sought liquidity and availability of credit. Finally, at the end of the century of exhaustive debate, we more or less gave up and adopted what we now call the Federal Reserve System. To say we debated this matter for a century is certainly true. For the last quarter century, we have turned our focus to the nonbank bank. You are really reaching for obscurity when you define an issue as we have done, and yet that seems to be the term with which we have to deal. The issue of the nonbank banks, were banks will be allowed to expand into newly authorized businesses such as securities and insurance underwriting, could finally be resolved in the Senate today. As we consider the conference report on financial modernization and prepare to pass the most significant piece of banking legislation since the 1933 Glass-Steagall Act, I would like to make two points, followed by a coda. The first being that we need financial modernization, that Depression-era banking laws need to be repealed. A May 4, 1999, Washington Post editorial reads: Since the Depression, Federal law has sought to keep banking, insurance and securities industries separate. The idea, in part, was to make sure that Federally insured bank deposits didn't wind up somewhere risky and unregulated. But in recent years, even without a change in the law, that separation has eroded. Banks have found ways to offer mutual funds to their customers; investment firms function like deposit institutions; etc. It makes sense now to bring legislation--and regulation--in line with reality. It strikes me as odd that most corporations are free to engage in any lawful business. Banks, by contrast, are limited to the business of banking. It is generally agreed that the Glass-Steagall Act of 1933 and the Bank Holding Company Act of 1956 need to be amended. Banks, security firms, and insurance companies should be allowed to offer each other's services. They already do by finding loopholes in the law. Congress must catch up, and pass a law that condones this activity. London does it. Tokyo too. Why not New York, which, if I may say, is one of the world's banking capitals? This is a real problem for existing banks, who find themselves under the serious constraints of Depression-era banking laws. Suddenly, they find that their activities are encroached upon and they are not able to do things that they ought to do--that they are going to need to do--in order to survive in a competitive world economy. With this bill, we have the opportunity to modernize our financial institutions and allow banks to do the things they ought to do, that they are going to need to do, to survive and grow. We must seize this opportunity, pass this bill, and give our banks the opportunity to compete in the world economy. Now to the second point. When this bill came up for a vote last May, I could not support it because the provisions concerning the Community Reinvestment Act were unacceptable. The CRA, enacted in 1977, has played a critical role in revitalizing low-and-medium-income communities. New York has benefitted from this. A March 17, 1999 New York Times editorial states: In New York City's South Bronx neighborhood, the money has turned burned-out areas into havens for affordable homes and a new middle class. The banks earn less on community-based loans than on corporate business. But the most civic-minded banks have accepted this reduced revenue as a cost of doing business--and as a reasonable sacrifice for keeping the surrounding communities strong. I am told that an acceptable--albeit not perfect--compromise has been worked out on this matter. With this agreement in hand, I can now support the bill. However, I urge the regulators to keep a close eye on the CRA provision and make sure that banks make loans where they are required to and keep investing in those communities that need it most. I conclude on the question of privacy. No small matter. Consumers, rightly so, are concerned that their personal information will be shared among the newly affiliated companies. The bill places no restrictions on the kinds of detailed personal information--such as customer bank balances, credit card account numbers, income and investments, insurance records, purchases made by check or credit card--that can be swapped among them. A November 3, 1999, Times editorial addresses this matter: In an electronic world where businesses can effortlessly collect, compile, and mine personal data for marketing and other purposes, consumers should have the right to control the spread of their financial information. Under current Federal law, consumers have almost no rights in this area. The bill adds some limited protections, but it does not go far enough, particularly since conglomeration will greatly accelerate the sharing of private information in the financial sector. As we move ahead with this bill and make substantial changes to the banking laws, we must make sure that privacy laws keep pace. this is much too important of an issue to be overlooked. I ask unanimous consent that the Times March 17th and November 3rd editorials, and the Post March 4th editorial be printed in the Record.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, Today is the fourth anniversary of the assassination of Israeli Prime Minister Yitzhak Rabin. On October 25, 1995, ten days before his assassination, Prime Minister Rabin spoke in the Rotunda of the capitol at a ceremony celebrating the passage of the Jerusalem Embassy Act of 1995. The honor of introducing him fell to me. I said, ``History will honor him as the magnanimous leader of a brave people--brave enough to fight daunting odds--perhaps even braver still to make peace.'' Four years later as Israel and the Palestinians prepare to begin final status negotiations, I think it appropriate to remember the man who helped lead his people down this road to peace. I ask unanimous consent to have printed in the Record my remarks on that occasion.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, on the day that his son, Lincoln, succeeds him in the Senate I would ask to have printed in the Record what I believe to be John H. Chafee's last formal address. It was given at the National Cathedral on the occasion of the Fiftieth Anniversary Celebration of the National Trust for Historic Preservation. They reflect the great beauty of the man, who loved his country so, and gave so much to it. I ask unanimous consent the address be printed in the Record.

Mr. MOYNIHAN

Mr. MOYNIHAN. I move to lay that motion on the table. The motion to lay on the table was agreed to. Mr. ROTH addressed the Chair.