Bobby Scott

Mr. SCOTT of Virginia

Mr. SCOTT of Virginia. Mr. Speaker, this chart shows that the top one percent get half the tax cut that we enacted in 2001. The people in the lower brackets who are more likely to spend the money and stimulate the economy, you can hardly see the lines that they get. The top 20 percent get the lion's share of the tax cut and virtually nothing on down. All of the studies show if you give money to those who are most likely to spend it, you will stimulate the economy.

Mr. SCOTT of Virginia. You cannot create a chart like this by accident. Eight consecutive years, each year better than the last; under the present administration, each year worse than the last and no help in sight. You do not do that by accident.

Mr. SCOTT of Virginia. Mr. Speaker, it is less than what the top 1 percent got in 2001.

Mr. SCOTT of Virginia

Mr. SCOTT of Virginia. Mr. Speaker, I thank the gentleman for yielding so we can continue to discuss the budget situation we are in. I like to use charts because one uses a lot of adjectives and uses a lot of spin. One cannot spin charts because they just show us what the numbers are. This chart, for example, shows the deficit year by year over the years. Johnson, Nixon, Ford, Carter. We all remember that deficits ran up under Reagan and Bush; and we also remember that when President Clinton came in with a Democratic majority, we cast the tough votes to create a surplus for the first time in decades. We also know that during this administration, the Republican Congress, after they took over Congress, passed huge tax cuts that were vetoed time and time again. The Republicans passed the tax cuts; President Clinton vetoed them. They threatened to close down the government. He vetoed it anyway. They shut down the government. He vetoed it anyway, and we were able to have a straight line right up to surplus. Unfortunately, President Bush did not veto those irresponsible tax cuts, and we see what happened all of a sudden. If anybody asks what is the Democratic plan now, we just point to the green. When the Democrats had control of the budget with Clinton and enough Democrats in Congress to sustain his vetoes, this was the Democratic plan. This is the Republican plan. Once we run up all those deficits, we have to pay interest on the national debt. This chart shows what the interest on the national debt would have been had we not messed up the budget. That is the green line showing what the interest on the national debt would have been. The red line is what the interest on the national debt will be as a result of messing up the budget. To put this in perspective, the blue line is the defense budget. By 2013 we will be paying almost as much interest on the national debt as we pay for defending the United States of America. We also can make this personal. This is what we call the debt tax. A family of four, take all the interest on the national debt, divide it by population, multiply it by four. Right now a family of four's proportional share of the interest on the national debt, about $4,400, $4,500. It was going to zero. But by 2013, $8,500 and rising. And how did we get in this mess? The tax cuts. And who got the tax cuts? We can say who got it, but let us look at the chart. The bottom 20 percent, the blue is the 2001 tax cut, the green is the proposed 2003 tax cut, and we see who got a little of the tax cut. There is a line right here that is hard to see, but it shows that one half of the tax cut went to the top 1 percent of the population. As a result of these tax cuts, we also have to consider the effect that they had on Social Security. This is a chart of the Social Security trust fund. We are bringing in more money in Social Security than we are paying out right now because the baby-boomers are retiring shortly, and we need to save the money for Social Security. We cannot balance the budget with a $150 billion surplus in Medicare and Social Security. In 2017 it is going to change. Look at what we are going to have to come up with as we go along. Now, the interesting thing is it is challenging, and this is the $900 billion, over $1 trillion a year we are going to have to come up with in cash to pay this. The embarrassing thing about this is if you go back to the tax cut, one-half of the tax cut of 2001, one-half, that is what the upper 1 percent got, had we, instead of giving a tax cut, allocated that amount of money to Social Security, we could have paid Social Security without reducing any benefits for 75 years. But, instead, we did the tax cut. So we have jeopardized Social Security, we have ruined the budget in terms of deficits, we have run up the debt tax. And, why? To create jobs? Let us see how we did. This is a job growth in the last 50-some years, going back to the Truman administration, Eisenhower-Nixon, Kennedy-Johnson, Johnson, Nixon, all the way through the worst job creation in over 50 years. Now, we say, well, what do you expect? 9/11. That is why we could not create any jobs. But as you think of it, we were fighting the Korean War, we created jobs. We fought the Vietnam War, we created jobs. We had our hostages taken in Iran, we created jobs. We fought the Cold War all the way through. We fought in Grenada and in Panama. The Persian Gulf, we created jobs. Somalia, Kosovo, we created jobs. 9/11, why can we not create jobs? We passed their plan. The worst investment growth since World War II. We had investment growth every year through the Korean War, Vietnam War, Cold War, all the way through, but not in this administration after we have wrecked the budget. When we talk about sending people's money back on tax cuts, we are not sending their money back. As we pointed out, we are spending all of their money. What we are sending them back is their children's money that they will have to pay off. My question is, how bad does this situation have to get? How much debt do you have to run up before you acknowledge that the plan did not work? How many jobs do you have to lose? We have lost almost 2.6 million jobs since this administration came. Unemployment is up. Long- term unemployment has tripled. How bad does it have to get before you acknowledge that it did not work? We need fiscal responsibility. We need the Democratic plan and need to reject the plan offered by the Republicans that we are passing now. I thank the gentleman for yielding so we could offer these graphs which show in numbers exactly how bad it is.

Mr. SCOTT of Virginia

Mr. SCOTT of Virginia. Mr. Speaker, I rise in opposition to the rule and the bill. In general, IDEA is a good program which works well. As a society, we have decided that all children have a right to a quality education. In 1954 our country made it clear that ``all children'' included racial minorities, and under IDEA we made it clear that ``all children'' included those with disabilities. The dream that all children are entitled to a quality education is an expensive dream to achieve, but we have decided that we mean to achieve that goal. Many years ago, Congress promised to contribute 40 percent of the cost of achieving that goal, and this bill provides only a modest increase in authorization; but if No Child Left Behind is a guide, the appropriations will not follow. If we mandated the appropriations in the bill, we could be sure that the money would follow the authorization, but that mandate is not in the bill. We should remember, Mr. Speaker, that the Federal legislation to protect the educational rights of children with disabilities would not be necessary if school districts did a better job in carrying out their responsibilities. Prior to the Federal mandate of Individuals with Disabilities Education Act, millions of children with disabilities receive no education at all. But this bill makes it more difficult for our children with disabilities to get the free and appropriate education to which they are entitled because many of the discipline provisions in the bill are inconsistent with that goal. Rather than making sure that children with disabilities are provided with good teachers who have appropriate training and professional development, the bill allows school districts to shuttle kids off to so-called interim alternative educational settings that will not provide a free and appropriate public education. In so doing, this bill makes it easier for local school systems to illegally place children with disabilities in inappropriate settings while at the same time reducing the parents' ability to challenge those placements. And so, Mr. Speaker, in the bill the removal of the current discipline protections will result in students with disabilities being expelled or removed for actions they cannot control. Mr. Speaker, the revised discipline provisions in the bill were added to give school districts an opportunity to avoid providing the most challenging students with disabilities free and appropriate education; yet we should remember that even with the current protections, students with disabilities are already overrepresented among students who are expelled from schools. The elimination of the current discipline safeguards will remove the only legal safeguards that currently exist for these students with disabilities. Mr. Speaker, for these reasons as well as others I ask my colleagues to oppose the rule and oppose final passage of H.R. 1350.

Mr. SCOTT of Virginia

Mr. SCOTT of Virginia. Mr. Speaker, the conference report before us started out as an effort to quickly pass AMBER Alert, a bipartisan noncontroversial provision which had already passed the Senate. I am a cosponsor of the House version of the AMBER Alert so I am anxious to see that it be passed because it has been actually shown to help children. It will codify a program of grants and assistance to States and localities to establish a national communications system so that abducted children can be saved. As the gentleman from Wisconsin pointed out, that system works. However, the bill now before us is loaded down with an array of crime sound-bite provisions that make the AMBER Alert bill just an afterthought in the legislation. The bill that has gone through the conference process, some provisions have been improved, some have been made worse; but I am unable to support the conference report at this time. Mr. Speaker, the bill retains egregious provisions that expand the Federal criminal laws into areas traditionally left to State criminal laws. It expands the death penalty, despite the fact that almost 70 percent of death penalties imposed in the United States are found to be erroneous and the fact that over 100 people sentenced to death in the last 10 years have been subsequently shown to be innocent. 250 Members of the House, many supportive of the death penalty, have sponsored the Innocence Protection Act to provide reasonable assurances that fewer innocent people will be put to death. So we should certainly not be adding more death penalties before this act passes. There are numerous provisions in the bill that create new mandatory minimum sentences, including the baseball-based sound byte, ``two strikes and you're out,'' which mandates life without parole for a second-offense requirement involving a minor. The offenses covered by that provision fortunately have been limited through the conference report process by eliminating some of the minor offenses involving a minor child, but it still includes as a child sex offense some consensual acts between teenagers. The bill also adds a 5-year mandatory minimum for first offense crimes that are Federal crimes only because a person crosses State lines, such as when an 18-year-old and a 17-year-old conspire to cross State lines from Washington, D.C., to Virginia to have consensual sex. Just to show my colleagues how bizarre that provision is, if children are conspiring to cross from Virginia to Washington, D.C., to have sex, it would not be a child sex offense, and that is because consensual sex outside of marriage is not a crime in Washington, D.C., while it is in Virginia. The bill also provides for a new wiretap authority in many of these cases including consensual sex and including some of the activities that do not even constitute a crime, and in some of those crime cases, bail may be denied during trial. Of course, we are supposed to expect that prosecutors will ignore the law to carry mandatory minimum terms and not bring those cases. The reason we have mandatory minimums in the first place is because judges cannot be trusted to determine who should be sentenced to life and who should be sentenced to less, so we give everybody a life sentence. So our prisons are filled with people today who are serving time because they were convicted of just tangential involvement in somebody else's drug trade and end up serving more time than bank robbers. We should let the sentencing commission and judges determine the appropriate sentences. Mandatory sentences have been criticized because they often require sentences which violate common sense in some cases, and that is why the Chief Justice of the Supreme Court is a frequent critic. Not only do we mandate numerous mandatory minimums without regard to what the individual circumstances of the case might be, but one amendment, the Feeney amendment, reduces the discretion of the sentencing commission and judges to robot-like conformity without regard to how the sentence compares to equally serious offenses, nor does it recognize that circumstances can vary from one case to another. There was a dramatic effort to fix that amendment, representing a brand-new version at the conference committee meeting, but it was ineffectual, as well as rife with errors. In just a cursory reading of that amendment, which was first seen by some of us at the meeting itself, it became clear that it had several major unintended effects. For example, it removed consideration in sentencing for exemplary military service. Another bizarre exchange occurred in which we were told that the word ``and'' actually meant ``or'' and it did not matter whether you had ``and'' or ``or.'' I do not know when the change took place, but the version before us now has the word ``or'' instead of ``and.'' Nevertheless the amendment still reduces the judge's ability to make the punishment fit the crime. Most cases are sentenced within the sentencing guidelines range; and according to the American Bar Association, 79 percent of the departures from the guidelines are agreed to by the prosecution. I would like to insert the letter from the ABA into the Record at this point. American Bar Association, Chicago, IL, April 9, 2003. Dear Senator: I write on behalf of the American Bar Association to express deep concern about the Feeney amendment, which has been incorporated in the conference report to accompany S. 151, legislation to ban ``virtual'' child pornography. Although we are pleased to see that some of the more offensive provisions of this amendment were modified in conference, we continue to believe that this provision would fundamentally alter the carefully crafted and balanced system established by the Sentencing Reform Act, without any of the customary safeguards of the legislative process. Indeed, to the extent the amendment would give prosecutors a unique and absolute power to check the discretion of sentencing judges, it would have an unsettling effect on the constitutional balance of power. The Feeney amendment would legislatively overrule a decision of the United States Supreme Court, United States v. Koon, 518 U.S. 81 (1996), and amend central provisions of the Sentencing Reform Act of 1984. It would void numerous sections of the Federal Sentencing Guidelines, and, for the first time, amend the Guidelines by direct legislation. It would preclude the exercise of judicial discretion in certain cases, and make judicial departures in all cases subject to de novo appellate review. It would impose very troublesome reporting and oversight requirements on judges that will certainly have a chilling effect on judicial independence, and discourage the imposition of just sentences in many cases. Should Congress enact the Feeney amendment, all these dramatic changes would be accomplished through a House floor amendment to an unrelated bill, adopted without committee hearings by either the House or the Senate, or the benefit of consultation with the U.S. Sentencing Commission, the federal judiciary, or the organized Bar. The Feeney amendment is evidently a response to the perception that judges have engaged in widespread abuses of their departure power following the Supreme Court's Koon decision in 1996. Based on the Sentencing Commission's statistics, I believe there are reasons to doubt the accuracy of this portrayal. Although sentences below the guideline range are now more common that in the early days of guidelines sentencing, the primary responsibility for this result lies with the Department of Justice. In FY 2001, of 19,416 downward departures awarded federal defendants, approximately 15,318 came on government motion. Put another way, in 2001, 79 percent of downward departures in the United States were requested by the Government. Similarly, although the rate of non-substantial assistance departures has increased since the Koon decision, the vast majority of that increase is attributable to the fact that the number of departures in the five `'fast-track'' border districts more than tripled, from 1871 to 1996, to 5928 in 2001. In short, the increased rate of non-substantial assistance departures since Koon is due primarily to requests for such departures by the Department of Justice. The foregoing figures do not, of course, present the whole picture. The percentage of judicially initiated departures has increased somewhat since Koon. It may well be that some judicially initiated departures are inappropriate and that some action to curb inappropriate judicial departures should be considered. However, it would seem advisable to determine the nature and extent of any problem with judicial departure power before legislating a virtual end to that power. As Senator Hatch wisely observed some years ago: ``[C]ongressional policy makers must take advantage of the most current and complete information available when making legislative decisions. Whenever possible, Congress should call upon those with relevant empirical research, encouraging those most knowledgeable of and most involved with the guidelines--judges, prosecutors, practitioners and the Commission--to express their views.'' I am informed that the U.S. Sentencing Commission is even now in the midst of a study of judicial departures in white- collar crime. Would it not be prudent to direct the Commission to extend that study to departures generally and report promptly to Congress on its results? (I understand that the General Accounting Office has also undertaken a study of departures, at the request of the House Judiciary Committee.) Such a congressional directive could also instruct the Commission to develop proposals to address any deficiencies revealed by the study. Once armed with full information, Congress could determine the true nature and extent of any problem, and could, if necessary, craft an appropriate, measured legislative response to any deficiencies in departure practice left unaddressed by the Commission. The American Bar Association is confident that a period for study of current departure practice would not only yield a more accurate picture of any problems that may exist, but could not fail to produce a better solution than the Feeney Amendment. The Sentencing Reform Act of 1984 created a system of distributed authority that was designed to ensure fair, predictable sentences for defendants convicted in federal court. As contemplated by the Act itself, the Guidelines drafted by the Sentencing Commission and approved by Congress channel judicial sentencing discretion, but they do not eliminate it. This system reflects two truths about the process of making sentencing rules. First, no set of rules can anticipate the circumstances of every individual defendant. Accordingly, if justice is to be done, judges must retain the flexibility to determine that some defendants do not fit the mold envisioned by the Commission. Second, the departure power is a means of providing feedback from judges to the Sentencing Commission and Congress. By studying departure patterns, the Commission can identify those guideline rules that judges are consistently finding to be inappropriate for certain classes of defendants. In the Sentencing Reform Act, Congress conferred upon Federal judges the power to depart whenever ``there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines'' in the enabling legislation that created the U.S. Sentencing Commission, 18 U.S.C. Sec. 3553(b). The Feeney Amendment is inconsistent with the original judgment of Congress about the necessity and value of a guided departure power and the important role of judges in Federal sentencing. If passed, the Amendment would severely compromise critical institutional features of the Federal sentencing system. By curtailing and burdening judicial departure authority, the Feeney Amendment strikes a blow at judicial independence and sends an unmistakable message that Congress does not trust the judgment of the judges it has confirmed to office. By overriding the Sentencing Commission and legislatively rewriting the Guidelines, the Feeney Amendment threatens the legitimacy of the Commission. The Commission was created by Congress to ensure that important decisions about Federal sentencing were made intelligently, dispassionately, and, so far as possible, uninfluenced by transient political considerations. Congress should accord the Commission and its processes some deference unless and until the Commission has demonstrably failed in its duties. By bypassing the deliberative processes of Congress itself, the Feeney Amendment reflects a profoundly troubling disregard of the legislature's role in establishing Federal sentencing policy. If passed, the Feeney Amendment would alter core features of Federal criminal sentencing and appellate practice. Yet the Amendment has never been the subject of a hearing in either the House or Senate, and neither house has had the benefit of meaningful consultation with any of the institutions most affected by the Amendment. The American Bar Association is firmly committed to the maintenance of a just and effective Federal sentencing system. I am confident that you and your colleagues will give the Feeney Amendment the careful scrutiny it requires. I am hopeful that such scrutiny will lead you to oppose the Feeney Amendment and to support a careful study of judicial departures by the Sentencing Commission. . . . The bill before us defiantly enacts laws prohibiting such acts as what is called ``virtual child pornography.'' The United States Supreme Court gave us a bright-line test to determine whether or not computer- generated images can constitute illegal child pornography. The Court said that if the image is not otherwise obscene it must involve real children in the production to be illegal. Pornography which was produced without real children under the Ashcroft case is not illegal. In a direct violation of that case, this bill prohibits such images, whether or not it was produced with real children, unless the defendant can prove his innocence. The Court, of course, dealt with that issue and said that we could not require a defendant in an American judicial court to prove his innocence, so that provision is clearly unconstitutional. Mr. Speaker, we have a number of problems with this case, including the mandatory minimums. I just want to point out that the Chief Justice of the United States Supreme Court, United States Judicial Conference, the Sentencing Commission, the American Bar Association, the Federal Bar Association, the Leadership Conference on Civil Rights, the Washington Legal Foundation, the CATO Institute, and a host of other sentencing and judicial system experts have pleaded with Congress not to impair the ability of courts to impose just and responsible sentences. I would ask also that a letter from the NAACP also be inserted into the Record at this point. National Association for the Advancement of Colored People, Washington, DC, April 10, 2003. Re NAACP opposition to S. 151, the ``Child Abduction Prevention Act of 2003.'' Members, House of Representatives, Washington, DC. Dear Representative: On behalf of the National Association for the Advancement of Colored People (NAACP), the nation's oldest, largest and most widely-recognized grass roots civil rights organization, I am writing to urge you to oppose the conference report to S. 151, the ``Child Abduction Prevention Act of 2003'' in its current form. While the issue of child abduction is a serious, heart- wrenching and too often tragic issue that deserves to be dealt with aggressively at a federal level, Title IV of the final bill would radically limit federal judicial discretion to impose just sentences for almost all federal offenses; not just those relating to child abduction. Because this provision overrules a key Supreme Court decision and constitutes a dramatic encroachment on the judiciary, it is opposed not only by civil rights organizations across the board, but also by Supreme Court Chief Justice Rehnquist, the Federal Judicial Conference, the Federal Sentencing Commission, the American Bar Association, the Federal Bar Association as well as countless law professors, prosecutors and public defenders. The potential impact of this provision on the African American community and on ethnic minority American communities throughout the nation is almost incomprehensible. Racial bias in our nation's criminal justice system is widespread and well documented. For example, according to reports from the US Department of Justice and the US Department of Health and Human Services, people of color commit drug offenses at a rate proportional to our percentage of the US population, roughly 25% for African Americans and Hispanic Americans combined. Yet almost 75% of the people charged in this nation with a drug offense are either Hispanic or African American. The impact this racial bias has on our communities is devastating. According to the US Department of Justice report issued just last week, an alarming 12% of all African American men between the ages of 20 and 34 are in jail or in prison. One out of every three black men born in the United States will spend time behind bars in their lifetime. The federal prison system now holds over 160,000 inmates, more than any single state prison system. Furthermore, the federal prison population has more than quadrupled in the last 20 years for mostly non-violent offenses even while the rate of incarceration has actually slowed in many states. Under Title IV, the growth rate is predicted to be staggering. I hope that you will consider the far-reaching impact this legislation will have on individual lives as well as whole communities and even our nation. I urge you again to oppose the final conference report unless Title IV is eliminated or at least amended to address only child abduction cases. Thank you in advance for your attention to this matter. If you have any questions, I hope that you will feel free to contact me at (202) 638-2269. Sincerely, Hilary O. Shelton, Director. Mr. Speaker, for those reasons we should vote against this report and send the measure back to committee for serious consideration. Many of the problems can be fixed if we would seriously consider the bill in a regular deliberative legislative process. So I urge my colleagues not to vote on the conference report, and I reserve the balance of my time.

Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may consume. (Mr. SCOTT of Virginia asked and was given permission to revise and extend his remarks, and include extraneous material.)

Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may consume to read just one paragraph of the letter the gentleman from Wisconsin just referred to. ``We are troubled that the sentence for the crime was reduced to 30 months upon the court's consideration of mitigating facts. Such a reduction for mitigating factors may be appropriate in other circumstances.'' In other words, Mr. Speaker, we did not ask for a change in the law, we just asked for a review consistent with the law. This bill changes the law, changes the standard for review. What the Congressional Black Caucus asked for was just a review under the current law. Mr. Speaker, I submit for the Record the letter just referred to by the gentleman from Wisconsin from the Congressional Black Caucus. Congress of the United States, House of Representatives, Washington, DC, August 6, 1993. Hon. Janet Reno, Attorney General, Department of Justice, Washington, DC. Dear Attorney General Reno: As members of the Congressional Black Caucus, we are writing to you because of our concern about the sentencing of Officer Laurence Powell and Sergeant Stacey Koon by Judge John Davies in the Rodney King civil rights case. We are troubled that the sentence for the crime was reduced to 30 months upon the court's consideration of mitigating facts. Such a reduction for mitigating factors may be appropriate in other circumstances. However, we feel that the defendants' special status as police officers, with special duties owed to the public, should have militated against such a significant reduction. As you well know, the maximum possible penalty was ten years and fines of up to $250,000. Your federal prosecutors were asking for seven to nine years. Our federal sentencing guidelines recommended minimum sentences in a range of four to seven years in prison. Instead, Judge John Davies made broad use of subjective factors. He stated that he read only letters addressed to him from the friends and families of Officer Powell and Sergeant Koon. He argued that much of the violence visited on Rodney King was justified by King's own actions. However, these officers were convicted on charges of violating Rodney King's civil rights. We believe these mitigating factors did not justify so large a reduction given the defendants' special responsibilities as police officers. In addition, Judge Davies did not afford proper weight to the racist comments made over police radio by those convicted on the night of the beating in discounting race as a motivation for the beating. He similarly failed to take into account the remarkable lack of remorse shown by Officer Powell and Sergeant Koon since their conviction. People of good will all over this country and of all races were heartened when Officer Powell and Sergeant Koon were convicted by a jury of their peers, a verdict made possible by the Justice Department's resolve to file civil rights charges and by the phenomenal performance of federal prosecutors. With these severely reduced sentences, however, we are sending a mixed message. Are police officers going to be held responsible for excessive use of force or not? We think what has been lost, in all this, is that police officers have an enhanced responsibility to uphold the law. Notwithstanding Judge Davies' authority to modify the sentencing guidelines, most experts agreed that the minimum four to seven years sentence should have been followed in this case. We realize that the trial judge is afforded sufficient latitude in sentencing, but we urge the Department of Justice to appeal these sentences. We need to reexamine these sentences so that justice can finally be done in this difficult, painful case. Only then can we begin to put this behind us. Sincerely, Maxine Waters; Sanford Bishop; Eddie Bernice Johnson; Floyd H. Flake; Albert R. Wynn; Carrie P. Meek; Eva M. Clayton; Major R. Owens; Walter Tucker; William Clay; Charles B. Rangel; William J. Jefferson. James E. Clyburn; Earl Hilliard; Bennie M. Thompson; Cleo Fields; Cynthia McKinney; John Lewis; Corrine Brown; Donald M. Payne; Alcee Hastings; Kweisi Mfume; Louis Stokes; Melvin L. Watt; Ronald V. Dellums. Mr. Speaker, could you advise how much time remains on both sides?

Mr. SCOTT of Virginia. Mr. Speaker, I reserve the balance of my time.

Mr. SCOTT of Virginia. Mr. Speaker, I yield 3 minutes to the gentleman from North Dakota (Mr. Pomeroy).

Mr. SCOTT of Virginia. Mr. Speaker, I yield 5 minutes to the gentlewoman from Texas (Ms. Jackson-Lee) a member of the Committee on the Judiciary. (Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks).

Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I would like to point out that the Congressional Black Caucus did not complain about the Supreme Court reinstating the law as it was. Mr. Speaker, I yield 3 minutes to the gentlewoman from California (Ms. Waters), a member of the Committee on the Judiciary.

Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I am frequently asked what we can do to repeal some of the mandatory minimum sentences which frequently impose bizarre, Draconian, and unreasonable sentences. Sometimes these requests come from relatives or friends of people, women whose boyfriends deal drugs, and the young lady does not deal drugs, does not use drugs, but she is around the boyfriend enough so that there is no question, she probably broke the law, took a message, drove a car to a meeting, so prosecutors can show she was involved, but not involved to the point where she ought to serve 20-some years, more than bank robbers serve. When they ask what they can do about these kinds of Draconian sentences, I tell them the first thing they have to do to repeal the existing mandatory minimums is to stop passing new ones. Today we are going to pass a new set of mandatory minimum sentence laws. If anybody asks in the future where these mandatory minimums come from, Members can point to bills like the one today. Finally, Mr. Speaker, a lot has been said about the Ashcroft decision. The Ashcroft decision was clear. You cannot prohibit child pornography, illegal child pornography unless real children were involved. The provisions in this bill allow prosecution whether or not real children are involved. The Court goes to great lengths to say whatever problems there are in prosecution, it is a problem for the defense. And if nobody knows whether they are computer-generated or involving real children, in that case they cannot successfully prosecute. They require real children to be involved in the production; and without real children, it cannot be illegal. This statute plainly on its face violates that Supreme Court decision and is unconstitutional. Mr. Speaker, I hope we can send this back to committee, improve some of the provisions, and pass the AMBER Alert bill like we should. But in its present condition, I hope we will reject the conference report with a ``no'' vote. Mr. Speaker, I yield back the balance of my time.

Mr. SCOTT of Virginia

Mr. SCOTT of Virginia. Mr. Speaker, just about an hour before the Committee on Rules meeting, the Democratic side got one copy of the budget, so it is impossible to coherently discuss the budget. That is why this process is unfair. Let us discuss the best way we can where we are and where we are going. This chart shows the deficit over the years showing Johnson, Nixon, Ford, Carter, Reagan. We went into a surplus under Clinton, and in 1 year under the Bush administration we are back into serious deficits. This does not include the war, so if Members actually wrote the amended numbers, it would be off the chart. Let us see how we got in that mess. That is because we passed all these tax cuts. Who got them? The bottom 20 percent, 20 percent, the top 20 percent got the lion's share of the tax cuts. They call it a growth package. Give me a break. Private sector jobs created since World War II, we go over, administration by administration, the worst job creation since World War II, the worst economic growth in an administration, the worst economic growth since World War II. Do not tell me this is a growth package. This has implications, because when we run up all that debt, we have to pay interest on the national debt. We are paying about $4,500 a year for a family of four's proportionate share, $4,500 interest on the national debt. That is going to go, under this budget, up to $8,500 each and every year, interest on the national debt. So every time they cut another tax they have to pay interest, and this number is going up. They are also cutting spending. Education, up about 12 percent every year, the last 5 years. They are cutting education. They say it is waste, fraud and abuse. We are budgeting. We have to have a line item. We are cutting, in this budget, school lunches, school lunches, student loans. They are cutting the line item that says school lunches, student loans, veterans' benefits. They are cutting those line items in the budget. The fact of the matter is that this is an irresponsible budget. This is caused by the tax cuts, and this is a bad process. It is a bad budget. This rule, which requires us to take this budget up tonight in the middle of the night, after virtually no notice, we have gotten the budget here in the middle of the night, it is an impossible process. I would hope that Members would defeat this resolution and take the bill up tomorrow, where we can discuss it and point out even more problems with the budget.

Mr. SCOTT of Virginia

Mr. SCOTT of Virginia. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, I would ask the gentleman if he could state any other civil statute that requires a criminal conviction as a predicate. And I would point out on page 9 of the bill ``in an action in which a manufacturer or seller of a qualified product knowingly and willfully violated,'' but it does not say anything about a conviction. So the manufacturer or seller is not afforded any of those rights we just heard of. And I just want to know if there is any other civil law that requires a criminal conviction as a predicate to your right to get civil remedies. Mr. Chairman, I reserve the balance of my time.

Mr. SCOTT of Virginia. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, the underlying right for redress would apply if the defendant transfers a firearm in violation of the law and is convicted of that crime. In other words, if the defendant has been convicted of an illegal transfer of a firearm, he loses the benefits of the bill. This amendment eliminates the requirement under the bill for a conviction before a defendant can be sued, and substitutes the requirement that the defendant actually committed the crime. Requiring a conviction before a defendant can be sued for civil consequences of his unlawful acts would constitute an extraordinary change in traditional civil liability standards. Moreover, such a requirement would create bizarre results based on what a prosecutor decides to do in a particular case and when he decides to do it. The prosecutor may choose not to prosecute a particular case for various reasons. This would preclude a claim, regardless of how egregious the injuries are or how clear the liability; or even if a case is prosecuted, the prosecutor may decide to plea bargain a case, allowing a defendant who has illegally transferred many guns to plead guilty to one transfer and drop the other cases. It would be absurd to suggest that only the victims in the case pleaded to can sue while the others cannot. Of course, there is always a possibility the case can be thrown out because of an unlawful search or seizure, because of a coerced confession, or simply because the prosecutor is unable to prove his case beyond a reasonable doubt. The case might be lost because a jury was pretty sure the defendant was guilty, but not beyond a reasonable doubt. Even where there is a conviction, the timing of the conviction alone might be dispositive of the claim because there is nothing in the bill or the law which tolls the statute of limitations in a civil claim pending prosecution and appeals. Mr. Chairman, this is a dramatic departure from traditional civil proceedings. In an automobile accident, for example, one can be successful if one can prove that the defendant went through the red light. We do not lose our case because the police officer did not give the defendant a ticket, or gave him a ticket but did not get a conviction. Say one brings the witnesses to court and proves the defendant, in fact, went through the red light. Under the theory under this bill, that person would lose his case if the police officer failed to successfully prosecute the defendant. If this amendment is adopted, even without the conviction, the unlawful transfer would still have to be proven in order to pursue the case. Under traditional civil law, we would still have to prove the defendant violated the law and that the violation was the proximate cause of the injury. If someone's criminal activity causes injury, he should not escape civil liability merely because he was not technically convicted of that crime. So I urge my colleagues to support the amendment. Mr. Chairman, I reserve the balance of my time.

Mr. SCOTT of Virginia. Mr. Chairman, the bill has a number of technical problems which we have already heard discussed, including one for which I will have an amendment later in the debate. But the point I want to make here is, on page 3 of the bill, under findings, the findings have as the number one finding, citizens have a right protected by the second amendment to the United States Constitution to keep and bear arms. It is interesting that the word is ``citizens,'' plural, not an individual has a right. Just so there is no confusion, I think it is important to get the record straight on what the second amendment says, particularly in light of the fact that the supporters of the bill on numerous occasions in committee hearings have been unable to cite a single final judgment which supports the idea that an individual has the right to bear arms under the second amendment. This goes back to the United States v. Miller case in 1939, where the court held that for the proposition, in the beginning of the second amendment, mentioning well-regulated militia. It says that the possession of a weapon must be reasonably related to a well-regulated militia. The circuit courts have ruled on this. The First Circuit held that the second amendment applies only to firearms having a ``reasonable relationship to the preservation or efficiency of a well-regulated militia.'' That is a 1939 case. In 1996, in the Third Circuit, defendant's possession of machine guns did not have a connection with militia-related activity required for second amendment protections to apply. The Fourth Circuit, a 1995 case, stated that courts have consistently held that the second amendment only confers a collective right of keeping and bearing arms which bear a reasonable relationship to the preservation or efficiency of a well-regulated militia. The Sixth Circuit, in 2000, held that the lower courts have uniformly held that the second amendment preserves a collective rather than an individual right. The Seventh Circuit, the second amendment establishes no right to possess a firearm apart from the role possession of the gun might play in maintaining a State militia. That is a 1999 case. The Eighth Circuit stated that the purpose of the second amendment is to restrain the Federal Government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia. That is a 1992 case. The Ninth Circuit in 2002 stated that it is this collective rights model which provides the best interpretation of the second amendment. The Tenth Circuit, a 1977 case, to apply the amendment so as to guarantee an appellant's right to keep an unregistered firearm which has not been shown to have any connection with the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or policy. The Eleventh Circuit, a 1997 case concerning motivating the creation of the second amendment, convinces us that the amendment was intended to protect only the use or protection of weapons reasonably related to a militia actively maintained and trained by the States. I want the Record to reflect, in case someone has read the second amendment, that our record is replete with what the second amendment means. [From the Legal Action Project] A Sampling of Court Decisions that Support the Militia Interpretation of the Second Amendment u.s. supreme court U.S. v. Miller, 307 U.S. 174 (1939). Lewis v. United States, 445 U.S. 55 (1980). u.s. courts of appeals U.S. v. Wright, 117 F.3d 1265 (11th Cir.), cert. denied, 522 U.S. 1007 (1997). U.S. v. Baer, 235 F.2d 561 (10th Cir. 2000) U.S. v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978). U.S. v. Swinton, 521 F.2d 1255 (10th Cir. 1975), cert. denied, 424 U.S. 918 (1976). U.S. v. Hancock, 231 F.3d 557 (9th Cir. 2000), cert. denied, 121 S. Ct. 1641 (2001). U.S. v. Finitz, 234 F.3d 1278 (9th Cir. 2000), cert. denied, 121 S. Ct. 833 (2001). Hickman v. Block, 81 F.3d 98 (9th Cir.), Cert. denied, 519

Mr. SCOTT of Virginia. Mr. Chairman, I apologize to the gentleman from Florida (Mr. Feeney).

Mr. SCOTT of Virginia. Mr. Chairman, will the gentleman yield?

Mr. SCOTT of Virginia. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, since the gentleman is defending the bill, I would ask him on page 8 of the bill, lines 17 through 22, whether or not the word ``transferee'' on line 22 and ``transferor'' on lines 17 and 18, whether that is a typographical error. Mr. Chairman, I reserve the balance of my time.

Mr. SCOTT of Virginia. Mr. Chairman, I yield 2 minutes to the gentlewoman from Texas (Ms. Jackson-Lee). (Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)

Mr. SCOTT of Virginia. Mr. Chairman, in the bill we have the action of a manufacturer who willingly and knowingly violates a State or Federal statute and can be sued. You do not have to have a conviction. You have to have a conviction in this situation. The gentleman from North Carolina (Mr. Watt) has revealed a bazaar situation. Some people can bring a case and not bring a case depending upon whether their case was part of a plea bargain or not. This is a major departure from any civil procedure, and if the gentleman can advise us if there is any other civil lawsuit that requires a conviction as a predicate rather than knowingly violated the statute, we would like to hear it. Mr. Chairman, I hope we would adopt the amendment.

Mr. SCOTT of Virginia. Mr. Chairman, I demand a recorded vote.

Mr. SCOTT of Virginia. Mr. Chairman, I yield 1 minute to the gentleman from North Carolina (Mr. Watt).

Mr. SCOTT of Virginia. Mr. Chairman, I offer amendment No. 2.