William Roth

Mr. ROTH

Mr. ROTH. Mr. President, I ask unanimous consent that the Committee on Labor and Human Resources be authorized to meet in executive session during the session of the Senate on Wednesday, March 5, 1997, at 9 a.m.

Mr. ROTH. Mr. President, I ask unanimous consent that the Subcommittee on Superfund, Waste Control and Risk Assessment be granted permission to conduct a hearing Wednesday, March 5, at 9:30 a.m., hearing room SD-406, on the reauthorization of Superfund, including S. 8, the Superfund Cleanup Acceleration Act.

Mr. ROTH

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. ROTH. Madam President, on January 30, 1997, the Committee on Finance unanimously reported without amendment Senate Joint Resolution 5, the waiver resolution for Ambassador Charlene Barshefsky's appointment to serve as U.S. Trade Representative. As I said earlier, I strongly support Ambassador Barshefsky's nomination. Therefore, in order to expedite the appointment of this nominee, it is my considered opinion as chairman of the Finance Committee, that the waiver should remain clean and should not be amended. Now, Senator Hollings has introduced an amendment to the waiver. This amendment would require congressional approval of any trade agreement that ``in effect'' amends or repeals U.S. statutory law. While I am convinced that as a general matter the Senate should not add amendments to the waiver, I have a number of concerns specifically about Senator Hollings' amendment, which lead me to oppose the amendment most strongly and to urge my colleagues to vote against it. My primary concern is that passage of the Hollings amendment will seriously jeopardize Ambassador Barshefsky's nomination. I have a letter from Chairman Archer of the House Ways and Means Committee stating that the House would view the Hollings provision as a revenue measure that, under the origination clause of the Constitution, must originate in the House of Representatives. As such, Chairman Archer informs me that he will invoke the constitutional prerogative of the House to refuse to consider the waiver resolution for Ambassador Barshefsky if the Hollings amendment is added. I ask unanimous consent that Chairman Archer's letter be printed in the Record following my remarks.

Mr. ROTH. In conclusion, Madam President, we must keep focused on the task at hand--fulfilling the Senate's constitutional prerogative with respect to Ambassador Barshefsky's nomination. We should not be bogging this nomination down with extraneous and controversial matters, such as the Hollings amendment. Therefore, I urge my colleagues to join me in voting to table the Hollings amendment, which will be made at the appropriate time. Madam President, I reserve the remainder of my time. Exhibit 1 Committee on Ways and Means, U.S. House of Representatives, Washington, DC, February 13, 1997. Hon. William V. Roth, Jr., Chairman, Committee on Finance, U.S. Senate, Dirksen Senate Office Building, Washington, DC. Dear Chairman Roth: I am writing in reference to legislation that would waive the application of section 141(b)(3) of the Trade Act of 1974, as amended by the Lobby Disclosure Act, with respect to the nomination of Ambassador Charlene Barshefsky as United States Trade Representative. As you know, I fully support Ambassador Barshefsky's nomination and urge the Senate to pass quickly legislation permitting her confirmation so that the House may then consider it promptly. At the same time, I am concerned that the legislation passed by the Senate may include provisions that contravene the origination clause of the U.S. Constitution, which provides that revenue measures must originate in the House. Specifically, I understand that the Senate may be asked to consider particular provisions, such as one suggested by Senator Hollings, which would change the manner in which Congress considers trade agreements and legislation having a direct effect on customs revenues. Although I strongly support Ambassador Barshefsky's nomination, I would have no choice but to insist on the House's Constitutional prerogatives and to seek the return to the Senate of any legislation including such a provision. I look forward to working with you on this matter. With best personal regards, Bill Archer, Chairman. Exhibit 2 Congress of the United States, Washington, DC, February 11, 1997. The President, The White House, Washington, DC. Dear Mr. President: We write regarding inaccuracies in correspondence you reportedly have received from a few of our colleagues regarding the World Trade Organization (WTO) telecommunications talks and restrictions on international investment. As you are aware, officials of the United States Trade Representative (USTR) are hard at work negotiating a market- opening agreement in the WTO Group on Basic Telecommunications (GBT). Questions have been raised concerning the Administration's authority to negotiate an agreement lowering barriers to international investment. It has been stated that USTR sought amendments to the Telecommunications Act of 1996 to clarify legal limits on foreign investment in U.S. telecommunications firms. This is incorrect. As the authors of the Senate and House foreign ownership provisions, we wish to state for the record that we were acting on our own initiative and that no Administration official requested that we legislate in this area. Any discussions we had with the Administration on these issues came at our request. We firmly believe that the Administration possesses the authority to negotiate an agreement without implementing legislation. Indeed, the correct legal interpretation of the relevant statute is that private foreign firms are free to invest in American firms without restriction unless ``the [Federal Communications] Commission finds that the public interest will be served by the refusal or revocation'' of a telecommunications license. To allege that implementing legislation is necessary is to misinterpret the law. Indeed, it is the very prevalence of such misreadings that caused us to attempt to reform the ownership rules. We wish to state our support for USTR's negotiators. We appreciate their work to promote free trade in goods and services. We believe that a freer flow of capital is a logical extension of this policy. Artificial limits on international investment only harm U.S. firms by denying them access to foreign capital and foreign markets. Thank you for your consideration on these thoughts. Yours truly, John McCain, Chairman, Senate Committee on Commerce, Science and Transportation. Michael G. Oxley, Vice Chairman, House Subcommittee on Telecommunications, Trade and Consumer Protection. Conrad Burns, Chairman, Senate Subcommittee on Communications. Mr. MOYNIHAN addressed the Chair.

Mr. ROTH. Mr. President, I yield 5 minutes to the distinguished Senator from Maine.

Mr. ROTH. Mr. President, I yield 15 minutes to the distinguished Senator from West Virginia.

Mr. ROTH. Mr. President, I yield the floor. Mr. CONRAD addressed the Chair.

Mr. ROTH. Mr. President, I have a unanimous-consent request which has been cleared with the minority. I ask unanimous consent that following the allotted times for debate, the Senate proceed to a vote on or in relation to the Hollings amendment No. 19: Senator Hollings 9 minutes, Senator Conrad 5 minutes, Senator Daschle 10 minutes, Senator Burns 6 minutes, Senator Roth 5 minutes; and immediately following that vote the joint resolution be read a third time and the Senate proceed to a vote on passage of Senate Joint Resolution 5; further, if the resolution passes, the Senate then proceed to executive session and immediately vote on the confirmation for the nomination of Charlene Barshefsky. I further ask unanimous consent that prior to the second and third vote there be 2 minutes of debate equally divided in the usual form.

Mr. ROTH. Mr. President, under the unanimous-consent agreement, an hour has been provided for the chairman and ranking member of the Finance Committee for debate on the resolution. I will yield myself such time as I may take from that hour.

Mr. ROTH. Madam President, I yield myself such time as I may use on the hour for the resolution.

Mr. ROTH. Mr. President, I rise to voice my strong support for Charlene Barshefsky as U.S. Trade Representative. Her nomination was favorably reported by a unanimous vote of the Finance Committee on Thursday, January 30, 1997. It is evident that the nomination of Ambassador Barshefsky has wide bipartisan support in the Senate. This is not surprising when one looks at the impressive record she has compiled as a trade negotiator at the Office of U.S. Trade Representative, first as Deputy USTR and then as acting USTR. During her nearly 4 years at USTR, Ambassador Barshefsky has succeeded in negotiating an impressive list of multilateral and bilateral trade agreements aimed at opening foreign markets to U.S. exports. She has also distinguished herself as a vigorous advocate and defender of U.S. trade interests. For example, most recently, Ambassador Barshefsky concluded an important agreement on insurance with the Japanese--a matter I was actively involved in on behalf of the United States insurance industry. If this agreement is fully implemented by the Japanese Government, it should result in substantial new opportunities for United States insurance providers. Similarly, at the World Trade Organization Ministerial in Singapore last December, Ambassador Barshefsky was successful in pushing other nations to conclude a landmark agreement to eliminate tariffs on information technology products. Once put into effect, this Information Technologies Agreement will result in billions of dollars in savings to U.S. companies and consumers. However, Ambassador Barshefsky has also shown that she can reject bad agreements. She refused to enter into an agreement on trade in financial services that could have left U.S. financial service providers in a worse position than before. Similarly, during the negotiations on telecommunications services last spring, she had the resolve to walk away from the table when other countries had presented patently insufficient offers to open their telecommunications markets. Her hard-nosed stand in the telecommunications talks forced countries to make substantial improvements in their offers, and the result was a historic agreement reached on February 15 to liberalize trade in basic telecommunications services. The Agreement on Trade in Basic Telecommunications Services will save consumers hundreds of billions of dollars and will allow our telecommunications industry to compete in foreign markets that were previously closed to them. Given these accomplishments and her demonstrated toughness and resolve on behalf of U.S. interests, I think there is no question but that Ambassador Barshefsky is extraordinarily well qualified for the position as U.S. Trade Representative. Indeed, her achievements, negotiating skills and professionalism remind me of another able woman USTR, Carla Hills. We enter a time when we greatly need as U.S. Trade Representative someone with the qualifications that Ambassador Barshefsky brings to the position. The next USTR will be called upon to manage a number of difficult trade issues, including the increasingly complicated trade relationship with China. Specifically with respect to China, we face a ballooning trade deficit and increasing tensions on trade matters with that country. Moreover, we will soon enter again into the annual debate over whether China should continue to enjoy normal trade relations with the United States, at a time when congressional views on this question will be influenced by China's action during the reversion of Hong Kong to the People's Republic this July. Ambassador Barshefsky will also be responsible for negotiating with China to ensure that it enters the World Trade Organization on commercially viable terms, which provide for meaningful market access and a commitment from the Chinese to observe the basic rules of the WTO. In addition, Ambassador Barshefsky will be the administration's point person with respect to the difficult issue of renewal of fast-track negotiating authority. She will also carry the responsibility to ensure that the trade liberalization initiatives through the Free Trade Area of the Americas, the Asia Pacific Economic Cooperation Forum, and the Trans-Atlantic Marketplace proceed according to schedule. These are all important issues, and I am most confident that they will be handled appropriately working with someone like Charlene Barshefsky. I would like to comment on the issue of the Ambassador's work for the Government of Canada and the Province of Quebec while practicing law in the private sector. Questions have arisen whether this work may fall within the terms of section 141(b)(3) of the Trade Act of 1974, as amended in 1995 by the Lobbying Disclosure Act. That provision prohibits the President from appointing any person to serve as Deputy USTR or U.S. Trade Representative who has directly represented, aided, or advised a foreign government or foreign political party in a trade dispute or trade negotiation with the United States. In my opinion, the vagueness of this new law and the fact that there was no debate or legislative history on the provision when it was added to the Lobbying Disclosure Act, make it difficult to determine whether it covers or even should cover Ambassador Barshefsky's work in the private sector. In order to resolve this matter, the President formally requested Congress to enact legislation waiving the law in this instance. Senator Moynihan and I agreed that under these circumstances, a waiver was warranted and, therefore, we jointly introduced Senate Joint Resolution 5 to waive the prohibition. For those who may have questions or concerns about this waiver, I want to point out that Congress has previously passed legislation to waive a statutory requirement on who may serve in a particular Government position with respect to a specific nominee. For example, in 1989, Congress passed a waiver of the law requiring that only a civilian may be appointed head of NASA, so that Rear Adm. Richard Harrison Truly could be appointed NASA Administrator. In 1991, Congress, once again, passed a waiver of the law requiring that only a civilian may be appointed head of the Federal Aviation Administration so that Maj. Gen. Jerry Ralph Curry could be appointed FAA Administrator. I would also like to say specifically with respect to Ambassador Barshefsky that as Deputy USTR, she has been exempt from the prohibition in the Lobbying Disclosure Act. She has been forthcoming in providing information to the Committee on Finance about the nature of her work while in private practice. Moreover, in response to a question from me at her nomination hearing, the Ambassador stated that she had never lobbied the U.S. Government on behalf of a foreign government or a foreign political party. So under these circumstances, and in the interest of moving her nomination as expeditiously as possible, the entire Senate Committee on Finance agreed that a waiver was appropriate in this case and voted unanimously for the joint resolution. Therefore, I hope that all Members of the Senate will also agree that the waiver is in the best interest of confirming this nominee who clearly enjoys broad bipartisan support and has already demonstrated that she is eminently qualified to serve in that position. Mr. President, I reserve the remainder of my time, and I yield the floor. Mr. MOYNIHAN addressed the Chair.

Mr. ROTH. I move to reconsider the vote.

Mr. ROTH. I want to emphasize one point to those that support the Barshefsky nomination. Regardless of whether one supports the Hollings amendment on the merits, the House will blue slip it. This means that not only will the House kill the Hollings amendment, but the Barshefsky waiver along with it. This fact alone is ample reason to vote against the Hollings amendment. In addition to this procedural concern, I also have substantive problems with the Hollings amendment. I admit this amendment may have some superficial appeal. Nonetheless, it is completely unnecessary because it is based on a false assumption, implying a problem that simply does not exist. The amendment gives the erroneous impression that the President is currently able to implement international trade agreements calling for changes in U.S. statutory law without the passage of implementing legislation by Congress. That is simply not true. If a trade agreement requires changes in U.S. statutory law, Congress must enact the legislation to implement those changes. Congress must pass that legislation in order for the agreement to have full force and effect with respect to the United States. A good example is the OECD Shipbuilding Subsidies Agreement, a trade agreement that was negotiated in 1994. Congress has been unable to pass legislation to implement the changes in U.S. law called for under that agreement. As a result, the agreement has no force and effect with respect to the United States. Absent congressional passage of implementing legislation, there is nothing the President can do to implement the agreement on his own. Now, what if Congress and the President have a legitimate disagreement about whether a particular trade agreement calls for a change in U.S. law? My understanding is that this issue is the basis of Senator Hollings' concern--that the President can act to supersede laws passed by Congress. First of all, this is not a situation where trade agreements are somehow deemed to be treaties, with the full force of law, but which, unlike a treaty, the President is able to implement without Congressional approval. Trade agreements are executive agreements. And the simple fact is that if there is an inconsistency between an executive agreement and a statute, the statute prevails. In other words, a law passed by Congress remains on the books in full force and effect and cannot somehow be trumped by an executive agreement or any other action by the President. In my opinion, the language in the Hollings amendment requiring that Congress approve any trade agreement that ``would in effect amend or repeal'' U.S. statutory law also suffers from several other defects. It is vague, subjective, leaves undefined what ``in effect'' means, and does not specify who determines whether a law is effectively changed by a trade agreement. Trade agreements cannot effectively change or repeal U.S. law. An agreement may call for actual changes in U.S. statutory law, in which case, as I have already explained, Congress must pass implementing legislation in order for it to have force and effect with respect to the United States. Or an agreement does not call for such changes, in which case it can be implemented without congressional action. Indeed, the language in the Hollings provision is so vague and ill-defined, that it could require congressional approval of any and every trade agreement the President negotiates, even those not calling for actual changes in U.S. statutory law. This could immobilize our ability to negotiate trade agreements, even on relatively minor issues, as Congress would be required to approve tens, if not hundreds of such agreements. All of these agreements would also be fully amendable. The result would be to shackle our capacity to conduct any trade policy. Because the language in the amendment is so vague, I also fear that it could call into question the legal status of previous agreements that have not been fully implemented, including the recently concluded Information Technologies Agreement. This landmark agreement was completed pursuant to authority provided to the President by Congress under the Uruguay Round Agreements Act, and currently needs no further congressional action in order to be fully implemented. However, that situation could change under the Hollings amendment, which would seriously jeopardize this historic agreement to provide a market opening for U.S. companies worth $500 billion a year. The amendment appears to be driven, in part, by Senator Hollings' concerns about the telecommunications agreement recently negotiated at the World Trade Organization. My understanding is that Senator Hollings believes the commitments the administration makes in the telecommunications agreement will change current U.S. telecommunications law without Congress having the opportunity to pass implementing legislation. I would like to point out that others disagree with Senator Hollings' view that this agreement will change current U.S. law. Senator McCain, chairman of the Senate Committee on Commerce, Science and Transportation, Senator Burns, along with Congressman Oxley, vice-chair of the House Telecommunications Subcommittee, wrote a letter to the President expressing their view that no implementing legislation is necessary. I ask unanimous consent that this letter also be printed in the Record following my remarks.

Mr. ROTH. Mr. President, we have had a great deal of debate on the Hollings amendment. So, in closing, I will be brief, but I want to make two simple points. First, no trade agreement--I emphasize ``no trade agreement''--has the stature to supersede U.S. statutory law. If a trade agreement seeks to accomplish a result not in conformity with U.S. statutory law, the Congress must enact legislation to achieve that result. Second, the amendment, whatever its merits, will cause Senate Joint Resolution 5 to be blue-slipped in the House if the amendment is agreed to. The only result that the amendment can accomplish is to derail the Barshefsky nomination. Make no mistake, I have a letter from Bill Archer, chairman of the Committee on Ways and Means. He says that, ``Specifically, I understand that the Senate maybe asked to consider particular provisions, such as one suggested by Senator Hollings, which would change the manner in which Congress considers trade agreements and legislation having a direct affect on customs revenue. Although I strongly support Ambassador Barshefsky's nomination, I would have no choice but to insist on the House constitutional prerogative and to seek the return to the Senate of any legislation including such a provision.'' So I urge my colleagues to vote ``no'' on the Hollings amendment. I yield whatever time I have to my distinguished colleague from New York.

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

Mr. ROTH. Madam President, I yield 3 minutes to the Senator from Colorado.

Mr. ROTH. Mr. President, I yield 7 minutes to the distinguished Senator from Rhode Island.

Mr. ROTH

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

Mr. ROTH

Mr. ROTH. Mr. President, I ask unanimous consent that there now be a period for the transaction of morning business, with Senators permitted to speak therein for up to 5 minutes each, with the exception of 20 minutes under the control of Senator Shelby.

Mr. ROTH

Mr. ROTH. Madam President, I would just like to say to the distinguished majority leader, it would not have been possible to have gotten this through unanimously without the active support of the ranking member, and I publicly thank him for his contribution. I should also like to point out that what we did is exactly what was requested by the administration.

Mr. ROTH. To carry it out until September 30. And that is exactly what we did. I think this is a wise move. It protects the safety of our air passengers. I thank the leader for his help in this matter.

Mr. ROTH. Reserving the right to object.

Mr. ROTH

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

Mr. ROTH

Mr. ROTH. Mr. President, as part of the Kassebaum-Kennedy health care legislation, passed in the 104th Congress, we provided for a pilot program to explore the potential of medical savings accounts. These MSA's represent a significant step forward in our objective to promote an environment where Americans can receive quality and affordable health care in market-based programs. MSA's would allow families to participate in higher deductible, lower premium plans. The money saved on premiums would be placed in tax-sheltered MSA accounts. Families could then use this money to pay for health care costs. They would have a greater stake in the health care delivery system. Their vigilance--as they use their own money--would encourage health care providers to keep costs competitive and quality high. MSA's would also go a long way toward cutting the high costs associated with health care administration. It's projected that as families play a more active role in paying for their health care, because of the high deductible nature of MSA's, that less than 10 percent of those using MSA's would send a bill to their insurance. Insurance company involvement would come only after the deductible has been met, or in the case of a catastrophic illness. As we look for innovative and workable programs to help Americans meet the costs associated with health care, MSA's offer a viable and attractive possibility. I anxiously await the results from the pilot program we initiated, as well as response from our health care community. Recently, I received a letter and an article from two academics associated with the allied health profession field. Amy B. Hecht, former dean of the Temple University College of Allied Health Professions and James L. Hecht, professor in the political science department at Temple, authored an impressive overview of MSA's. I ask unanimous consent that their article be printed in the Record.