Hal Rogers

Mr. ROGERS

Mr. ROGERS. Mr. Chairman, if the gentleman will yield, I would be delighted to.

Mr. ROGERS. Mr. Chairman, I make a point of order against the amendment because it is in violation of section 302(f) of the Congressional Budget Act of 1974. The amendment would provide new budget authority in excess of the subcommittee allocation made under section 302(b), and is not permitted under section 302(f) of the act. I ask for a ruling.

Mr. ROGERS. Mr. Chairman, I intend to assert the point of order; but before doing so, let me rise in opposition to the amendment. Mr. Chairman, the bill provides an increase of $13 million over the current level for the U.S. Trade Representative, International Trade Administration, and International Trade Commission. This funding continues the overseas presence of the foreign commercial service at the current level of operations. Likewise, the bill provides full base funding for the Department of State to continue current their overseas staffing levels. If there is a requirement for personnel with specific expertise in trade monitoring, there is certainly room within the overall funding level to redirect funds to that priority. So there is plenty of money in this bill for the purposes for which the gentleman is concerned. Points of Order

Mr. ROGERS. Mr. Chairman, I reserve a point of order against the amendment.

Mr. ROGERS. Mr. Chairman, I make a point of order against the amendment because it proposes to change existing law and constitutes legislation in an appropriations bill and violates clause 2 of rule XXI.

Mr. ROGERS. Mr. Chairman, I rise in opposition. Mr. Chairman, the provision that the Davis amendment proposes to strike is identical to the provision that is in the current act. This has been in the bill now for some time. All this provision does is to ensure that the Department of Justice, especially the U.S. Attorneys, are not hit with a huge funding shortfall in 2001. We are talking $50 million to $70 million that they would have to eat if something were not done in this bill. The bill does not currently include any funds to pay overtime to lawyers at the Department of Justice. These attorneys like most other professionals in the Federal Government, have never been paid overtime, never. None of the professionals in the Government are paid overtime. While the issue of whether Department of Justice attorneys are entitled to overtime is a part of the lawsuit that is now pending and ongoing, the provision in this bill in no way affects the ongoing litigation. What this provision does do is to ensure that the Department of Justice, particularly U.S. Attorneys, are not hit with a funding shortfall of as much as $50 million in 2001 should the lawsuit be decided in favor of the attorneys who have sued for overtime. Mr. Chairman, that kind of a shortfall would trigger massive furloughs and reductions in force throughout the Department and in every U.S. Attorney's office in the country. Nor does this provision prejudge future congressional action. In fact, it is an issue that Congress needs to look at both from a policy and a funding perspective. On the policy side, the issue is whether Congress, in fact, intended to provide overtime pay for Department of Justice lawyers. In addition, the funding ramifications of paying overtime have to be considered. As a group, Department of Justice attorneys are compensated at the top end of the Federal pay scale; an average attorney salary is over $94,000; and for assistant U.S. attorneys, which have their own pay scale, the average is even higher. As a result, payment of overtime will be a very significant cost to the taxpayer; and in the bill, we have maintained the status quo while the litigation goes on; and at the same time we give Congress the opportunity to further study this issue of whether or not fiscally or as a matter of policy to allow overtime to DOJ lawyers. In the meantime, let us keep the status quo and do not prejudice the outcome, and I urge a rejection of this amendment.

Mr. ROGERS. Mr. Chairman, I commend the gentleman from New York (Chairman Gilman) and the gentleman from Wisconsin (Mr. Green) for their interest and work in this vital issue, and I look forward to working with them to eliminate this backlog.

Mr. ROGERS. Mr. Chairman, will the gentleman yield?

Mr. ROGERS. Mr. Chairman, I agree with the gentleman from Wisconsin (Mr. Green) and appreciate his attention to this pressing issue. I would hope that the Department of Justice shares our views on this and acts accordingly.

Mr. ROGERS. Mr. Chairman, will the gentleman yield?

Mr. ROGERS. If the gentleman will yield, that is correct.

Mr. ROGERS. I will continue to work with the gentleman to provide funding for this program at least at last year's level.

Mr. ROGERS. Mr. Chairman, will the gentleman yield?

Mr. ROGERS. I thank both of the gentlemen for their leadership on this very important issue. It is a matter that we have been dealing with in our subcommittee now for some time attempting to find the funds to be able to adequately fight this battle. I will remain committed to working with them and with the Senate and the administration to resolve the fiscal year 2000 funding shortfall.

Mr. ROGERS. Mr. Chairman, will the gentleman yield?

Mr. ROGERS. Mr. Chairman, I yield myself the balance of our time. (Mr. ROGERS asked and was given permission to revise and extend his remarks.)

Mr. ROGERS. Mr. Chairman, I yield 2 minutes to the distinguished gentleman from North Carolina (Mr. Coble), the chairman of the Subcommittee on Courts and Intellectual Property of the Committee on the Judiciary.

Mr. ROGERS. Mr. Chairman, I yield 2 minutes to the distinguished gentleman from North Carolina (Mr. Ballenger).

Mr. ROGERS. Mr. Chairman, I yield 2\1/2\ minutes to the gentleman from North Carolina (Mr. Hayes).

Mr. ROGERS. Mr. Chairman, I yield myself 7 minutes. Mr. Chairman, what this argument is about today is unlike what has been argued before in this body on this matter. This debate is about what was the intent of the Congress in 1995 when we passed the act in this bill that allowed the Department of Justice to be reimbursed from other agencies for extraordinary expensive cases. What was on the table at that time was a lawsuit by a company against the Navy when the Navy canceled the A-12 aircraft contract. It was a multibillion-dollar lawsuit. Justice came to us and said, Would you please put in your bill a provision that allows the Navy to reimburse Justice for representing it in this massive lawsuit against the government. We said, Okay, we'll do that. Never in anyone's wildest imagination on the floor of this body was it anticipated that that statute would be used by the Government to initiate lawsuits, to sue people willy-nilly. Why? Because the Justice Department has a Civil Rights Division of some 1,039 lawyers with hundreds of millions of dollars to spend in filing lawsuits. Why would they need this kind of money to file a lawsuit? No, the Congress intended when we passed that statute to enable the Justice Department to be able to represent the Government when it was sued, not when it was the suer. Now the Government has filed three of these lawsuits using this statute contrary to the intent of the Congress, thumbing its nose at the Congress and saying, We will decide how we're going to spend the money you gave us from the taxpayers. We don't care what you thought when you passed the statute. That is the attitude of the Justice Department. Since the section was enacted, so-called 109, they have received roughly $324 million in reimbursements, almost all of which has been for just two massive lawsuits, the A-12 airplane case I mentioned, and the Winstar Savings and Loan cases where Justice was defending the Government against $33 billion in claims. Clearly, section 109 is an important tool to protect the Government and the taxpayer and should stay on the books. Without it, Justice would not have been able to mount credible defenses in critical cases and the Government could have suffered billions of dollars in losses. What we do in the bill is clarify Congressional intent. We say, Look, what we meant when we gave you that authority in 1995 was to defend the Government against these massive claims, not to initiate lawsuits. And the bill does ensure that the money would be used for defensive litigation which was the justification provided by the Justice Department when it sought from us this special authority and the understanding of Congress when we provided that authority. It is the reasonable approach, and it is the right thing to do. It ensures that funding provided for other programs in this and other appropriations bills are not diverted in the future for proactive lawsuits as have been done to the tune of over $8 million so far. Nothing in this bill restricts or prevents Justice from continuing any lawsuit, ongoing or prospective. Let them do what they will. We give them hundreds of millions of dollars with 1,034 lawyers in the Civil Rights Division to pursue civil actions. Nothing in the bill would restrict or prevent that. This bill contains in fact $147 million to pay for those huge numbers of lawyers within the Civil Division to carry out affirmative cases, as the government sees fit. The Waxman amendment would modify this bill, to allow the government to continue raiding the budgets of other agencies for four proactive cases that were filed about Justice just before this year and which are being paid through the inappropriate use of section 109 authority. It would prohibit the use of section 109 for proactive cases filed after the beginning of the year. In so doing, the Waxman amendment by itself acknowledges that, in fact, section 109 is for defensive purposes only. But the gentleman says we acknowledge that, but give us a break this time for all cases filed before the beginning of the year, the statute is either for defensive purposes or it is not. If it is for defensive purposes, it acknowledges the intent of the Congress in 1995 that it was for defensive purposes. If it was for defensive purposes then, the government was wrong to use these funds to file any lawsuits since 1995, so I reject out of hand the argument that this statute ought to be modified so that we could protect and cover the rear ends of those at Justice that made the decision that was contrary to the intent of Congress, wrong and should not be rewarded, as this amendment would do by giving them an excuse, giving them an out and saying yes, it is for defensive purposes, but we are going to forgive you this time. Sorry, sorry about that. The law is the law. This was for defensive purposes, the Justice Department has violated it, and the gentleman wants to reward them on this floor, and I suggest that we shall not do that. Mr. Chairman, I reserve the balance of my time.

Mr. ROGERS. I am, Mr. Chairman.

Mr. ROGERS. Mr. Chairman, I yield 2 minutes to my distinguished colleague, the gentleman from Kentucky (Mr. Lewis). (Mr. LEWIS of Kentucky asked and was given permission to revise and extend his remarks.)

Mr. ROGERS. Mr. Chairman, contrary to what we have heard, this amendment and this debate is not about whether one likes or believes in smoking, or whether it is good or bad for us. That is not the issue here. The issue is not whether this lawsuit has merits or not. That is what we have heard here, arguing the merits or demerits of the lawsuit. It has nothing to do with that. The question here is whether or not the Justice Department violated the law itself in filing the lawsuit. Last year, for the first time that I have ever recalled, Justice asked the Congress for money to file a specific lawsuit. The Congress said no; the money was denied. Justice then secretly went to three agencies and said, give us the money to file this lawsuit. They said, wait a minute, where is your authority for that? They said, well, look at section 109 of the 1995 State Commerce-Justice bill where it says that agencies can reimburse the Justice Department for representing them in court, and they dragged the money out of those agencies and filed this lawsuit. Well, that statute that they are talking about is the crux of what we are talking about here today. That statute merely says that the Government can be represented in court when it is sued. That was the intent of the Congress; no to be the suer. No one told the Congress that they had done this. We had to find it out on our own, and we did. So the Department of Justice, the place supposedly where the Nation's morals are protected, the place where moral authority resides in this government, if anywhere, itself is the one that is thwarting the will of the Congress; that is, twisting words for its own purposes, that is clearly violating the intent of the Congress in passing the act in the first place. Why was it passed in the first place? The Government was sued, a huge multibillion dollar suit by the contractor for the Navy Department when we canceled the A-12 aircraft contract. In 1995, Justice says, please, Congress, help us. Allow the Defense Department to pay us back for representing them in defending this lawsuit, and we said, we think that is a legitimate purpose, and we wrote it into our bill. That is the statute they are trying to use. Mr. Chairman, we all know, my colleagues know that that statute is for defending the Government, not suing, willy-nilly. Why? Because we provided in this bill $147 million for them to bring lawsuits; 1,034 lawyers we hire there to file lawsuits. We are paying those lawyers to file lawsuits. This statute is for defending the Government, not suing. And yet, they would have us believe that this great moral authority at the Justice Department is right. I say to my colleagues, the question here is not the merits of the lawsuit or any other lawsuit, the question here is the merits of the morality at the Justice Department. Does the end justify the means? They say yes; I say no. Is this a nation of laws or of men? I say laws, and the Congress better say laws. They are taking your prerogative here down there and they are using it as they choose. I say to my colleagues, reject the Justice Department's grab of other agencies' money, but more importantly, the Justice Department's seizure of power away from the Congress. Never was it intended in this Congress in the passage of this statute that it was to be funding lawsuits filed by the Government. No one ever anticipated that or thought about it when we passed the act. The intent of the Congress is being clarified in our bill, and that is, this statute is for defensive purposes only. Reject the Waxman amendment that would legitimize and reward a Justice Department that has seized your prerogative and is acting like they are the law themselves and we do not matter. Well, Mr. Chairman, the end does not justify the these means. I urge my colleagues to tell the Justice Department to obey the law.

Mr. ROGERS. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, in the interest of time, and we are running out of time because of the earlier commitment to be out of here on this bill at a certain hour, I wonder how many speakers are on the floor who wish yet to be heard on the amendment. There are four that I count. I wonder if we could get unanimous consent that all debate on this amendment could end at 5 after 1:00, which would allow some 15 minutes, and to be divided equally between the parties.

Mr. ROGERS. As I pointed out earlier, we actually increased the Patent Office expenditures in the bill by $33 million this year. Over the last 4 years we have increased them by $250 million. So they are not starving.