Bobby Scott

Mr. SCOTT of Virginia

Mr. SCOTT of Virginia. Mr. Chairman, in closing let me just say that, as the gentleman from Arkansas, who is a physician, indicated, weight gain can be caused by contamination or other problems, even if that contamination was unknowing. Under this bill, the attorney general would not be able to get an injunction. We should trust our States attorneys general and consumer protection agencies to do the right thing and not prohibit them from protecting our citizens. Mr. Chairman, I would hope the amendment would be adopted. Mr. Chairman, I yield back the balance of my time.

Mr. SCOTT of Virginia. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, we have apparently decided to try these kinds of cases on the floor of the House where politics and popularity will be considered, even financial contributions will be allowed, rather than have those cases and special interests relegated to the judicial branch where they will be facing unbiased judges and juries and relegated to the same laws that apply to everybody else. But if we are going to try the cases, we ought to at least limit the impact of the bill to the fast food rhetoric that we have heard. This bill, unfortunately, covers not only fast food lawsuits but also litigation involving consumer protection when obesity or weight gain may be one of the elements of the case. Now, every single State has laws on the books to protect its consumers. Every State has laws to protect consumers from misleading practices and each attorney general has the power to enforce these laws. But unfortunately as written, the bill will prevent State attorneys general from enforcing those laws. It will not just stop the individual fast food lawsuits that my colleagues have been discussing, but because a person who may be a plaintiff is defined in the bill to include governmental agencies, it will prevent States from getting injunctions, cease and desist orders, or imposing fines against those who endanger consumers. It is important to note that not only money damages are precluded by the bill. Rather, the bill refers to damages, penalties, injunctive or declaratory relief, restitution or other relief, all are prohibited forms of relief that will no longer be available to State attorneys general if this bill passes without my amendment. The exception for a ``knowing'' violation is not enough. State deceptive practices are just like the Federal Trade Commission Act. They allow civil enforcement actions whether or not the defendant willfully or knowingly violated the law. In fact, food labeling and deceptive practices have often exacted strict liability, that is, if the government can get an injunction whether the person was intentionally or knowingly in violation. Mr. Chairman, my State of Virginia has the Consumer Protection Act. It prohibits misrepresenting that goods or services have certain qualities, characteristics, ingredients, uses or benefits that they do not have, and any other conduct which similarly creates a likelihood of confusion or misunderstanding. A court may order an injunction or restitution to injured parties even if the violation was unintentional. In fact, Virginia is not alone. At least 12 other States have specifically adopted the Uniform Deceptive Trade Practices Act, section 3, which says that intentional deceptive action is not necessary to get injunctive relief. At least 23 other States have similar standards. So, Mr. Chairman, my amendment that I present today will address that problem in the bill. It will ensure that attorneys general and State agencies can put an end to mislabeling, to deceptive practices, to false advertising, and other consumer fraud within the borders of the State. Whatever we think of the individual fast food lawsuits, we should not prohibit State attorneys general from enforcing States laws and protecting their citizens. Mr. Chairman, I reserve the balance of my time.

Mr. SCOTT of Virginia. Mr. Chairman, I offer an amendment.

Mr. SCOTT of Virginia

Mr. SCOTT of Virginia. Madam Chairman, I thank the gentleman for yielding me time. Madam Chairman, in addition to the violation of principles of federalism outlined by my colleague from North Carolina, this piece of legislation is another piece in which we are taking upon ourselves the right to try a case in the legislative branch instead of respecting the separation of powers by allowing cases to be tried in the judicial branch where they belong. Instead of respecting separation of powers and honoring the rule of law and standing behind the principle that laws should be applied equally to all, we are once again giving special treatment to special cases. The majority in Congress has apparently already decided the proper outcome of these cases and is adjusting the law accordingly just for these cases, rather than trusting our laws and our courts to hear evidence from both sides and decide the cases on their merits. If these are losing cases, then let the judicial process make that decision. Even if they are frivolous cases, the judicial branch has ways to sanction people for bringing frivolous cases; but once again, special interests are receiving, in these cases, special treatment. Instead of having to go through the courts like everybody else, where they do not know the outcome of the case until evidence is presented and the law is applied, these defendants will get to try their cases in the legislative branch, where popularity and politics prevail. Even financial contributions are allowed. Meanwhile, everyone else without special privileges is stuck trying their cases in the courts, where they have an unbiased judge and jury, instead of favorable politicians, and they are stuck with the same law that applies to everybody else. This is not the only recent example of special treatment. Just a few months ago, we changed the law for Terri Schiavo because her parents knew how to reach someone in Congress; and we ignored the multitude of judicial decisions that had already been decided, and we changed the law for that case, not cases like that, just for that case. A few years ago, in a child custody case in the Washington, DC, area that case was decided by special legislative language in a transportation appropriations bill. The Committee on Education and the Workforce likewise considered a case on appeal between the Department of Labor and a bank and voted to retroactively change the law to fix the result on behalf of the bank. Later today, as my colleague from North Carolina has pointed out, the House will probably pass legislation to fix the result in firearms legislation so that the firearms industry will get to try their cases and their issues in the legislative branch, rather than being stuck with the law that applies to everybody else. Mr. Chairman, trying cases in the legislative branch is bad policy. We should honor the rule of law and apply the law in all cases. There will always be special interests, but we should not make special laws for those who can get to a Congressman to introduce a bill on their behalf. Let us honor and respect the rule of law to be applied equally to all and reject this legislation.

Mr. SCOTT of Virginia

Mr. SCOTT of Virginia. Mr. Speaker, I believe the gentleman has some charts that he wanted to discuss about some of the choices that we are making.

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

Mr. SCOTT of Virginia. Mr. Speaker, if the gentleman would continue to yield, if you have a tax cut without PAYGO, you do not have to pay for it; and what happens when you cut taxes and increase spending without paying for it?

Mr. SCOTT of Virginia. Mr. Speaker, if the gentleman would yield, have we ever had PAYGO?

Mr. SCOTT of Virginia. Madam Speaker, I would like to thank the gentleman from South Carolina for his comments. I want to get back to the chart where he has debt service in 10 years of $458 billion. When you use big numbers like that, sometimes I like to put them into perspective. At $45,000 each with that money which is just going down the drain, you could hire over 10 million Americans for $458 billion, at $45,000 each, 10 million. There are less than 9 million unemployed today, drawing unemployment. So that is just money right down the drain. You can hire everybody that is on unemployment, have money left over, and a $45,000 a year job for the money that we are going to waste on debt service because we have let this deficit get out of control. In the deficit for 2015, the gentleman has listed $640 billion. We need to put that number in perspective. The entire revenue from the individual income tax, what everybody pays in individual income tax, is approximately $800 billion. They have overspent, gone in the hole $640 billion. You just wonder how bad it would have to get before they realized that this just is unsustainable.

Mr. SCOTT of Virginia

Mr. SCOTT of Virginia. Mr. Chairman, the bill as passed by the Committee on the Judiciary makes important improvements on the Department of Justice authorization. It was approved on a bipartisan basis. It deals with the Violence Against Women Act, especially as it applies to immigrants, the COPS authorization, fighting drug abuse. It adds administrative efficiencies, and, as I indicated, it came out of committee on a bipartisan basis. Unfortunately, the manager's amendment will ruin this bipartisan cooperation. Reference has been made to the letter we have received from the NAACP that points out that the bill as passed out by the Committee on the Judiciary was much better than the manager's amendment. Mr. Chairman, there were no hearings on this amendment, there is no public comment, it is just a manager's amendment which is supposed to be uncontroversial. It would have been helpful if we could have had committee consideration and agreed on bipartisan language. I am sensitive to the concerns of the chairman that the Constitution may jeopardize the language that is in the bill, but I think we should have worked it out, and, in the absence of an agreement, I would hope that we would defeat the manager's amendment. If we are expected to appropriately address and relieve racial tensions in our communities, the only way I think we can do this appropriately at this point would be to defeat the manager's amendment and come back and try to work out language that everyone can agree on.

Mr. SCOTT of Virginia

Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may consume and point out that out of respect for the judicial branch and because the passage of this resolution will actually make it less likely that the Pledge will be found constitutional by the judicial branch, we should defeat this resolution. Mr. Speaker, I yield back the balance of my time.

Mr. SCOTT of Virginia. Mr. Speaker, I yield 6 minutes to the gentleman from Michigan (Mr. Conyers), the ranking Democrat on the Committee on the Judiciary.

Mr. SCOTT of Virginia. Mr. Speaker, I yield 6 minutes to the gentleman from New York (Mr. Nadler), the ranking member of the Subcommittee on the Constitution.

Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I come from a State that has a long tradition in supporting religious freedom. In fact, it was Thomas Jefferson of Virginia who wrote the Virginia Statute for Religious Freedom which predates the amendment to the Constitution. Unfortunately, H. Con. Res. 245 is not about supporting religious freedom. In fact, this resolution is totally gratuitous, as it will do nothing to change the underlying law. This is because we are dealing with constitutional issues that cannot be altered by resolution. If the judicial branch ultimately finds the Pledge, or the national motto to be constitutional, then nothing needs to be done. On the other hand, if the Court ultimately finds it to be unconstitutional, no law that we pass will change that. Although I tend to agree with the dissent in the 2002 Ninth Circuit decision in Newdow v. U.S. Congress, which found that the words ``under God'' in the Pledge are permissible under the Constitution, I believe it is important to review the reasoning of the majority decision in that case which held that the words ``under God'' are impermissible on constitutional grounds. The majority in the Newdow case applied each of the three Supreme Court tests that have been used over the last 50 years in evaluating Establishment Clause cases. That review is essential, because if we support the Pledge, we need to make sure that we support it based on appropriate constitutional principles. One test the Ninth Circuit cited was whether the phrase ``under God'' in the Pledge constitutes an endorsement of religion. The majority opinion said it was an endorsement of one view of religion, monotheism, and, therefore, was an unconstitutional endorsement. Another test was whether the individuals were coerced into being exposed to the religious message, and the majority opinion concluded that the Pledge was unconstitutional because young children are compelled to attend school and ``may not be placed in the dilemma of either participating in a religious ceremony or protesting.'' Finally, the Court applied the Lemon test, named after the 1971 Supreme Court case Lemon v. Kurtzman. Part of that test holds that a law violates the Establishment Clause if there is no secular or nonreligious purpose. Mr. Speaker, the Pledge was amended in 1954 to add the words ``under God'' to the existing Pledge, and so the Ninth Circuit concluded that the 1954 law had no secular purpose and was, therefore, unconstitutional. Mr. Speaker, while I believe that the majority's reasoning was sound, I indicated that I tend to agree with the dissent in the 2002 Newdow case. The operative language in the dissent which persuaded me was as follows: ``Legal world abstractions and ruminations aside, when all is said and done, the danger that `under God' in our Pledge of Allegiance will tend to bring about a theocracy or suppress someone's belief is so minuscule as to be de minimis. The danger that phrase represents to our first amendment's freedoms is picayune at best. ``Judges, including Supreme Court Justices, have recognized the lack of danger in that and similar expressions for decades, if not for centuries.'' Mr. Speaker, I agree with the dissent and support the Pledge of Allegiance as is under the theory that the words ``under God'' are de minimis. Because the language fails other traditional Establishment Clause tests, the principle that the words ``under God'' are de minimis is the only principle that supports the Pledge as it is. If we suggest that the words are not de minimis, then what do we have to rely on? We would have to overturn one of the existing Supreme Court tests. What will we base that decision on? Would we permit, for example, the government endorsement of one religious view and open the door to other endorsements? Will we permit proscribed coercion of young and impressionable schoolchildren and open the door to other government proscribed religious messages? Should we repeal the Lemon law test and permit the enactment of legislation that only has a religious purpose? Moreover, if we elect to maintain the Pledge with the words ``under God'' simply because it represents a page in our history as the Fourth Circuit appears to allow, then are we establishing a new Supreme Court test, a historical setting test, or is that the same de minimis standard that the Ninth Circuit cited? Again, the only principle which upholds the constitutionality of the Pledge is that the words ``under God'' are de minimis, as explained by the dissent in the 2002 Newdow case in the Ninth Circuit. The problem with relying on that principle and enacting H. Con. Res. 245 is that our actions do more harm than good. The de minimis principle is precarious at best. It is easily undermined by the emphasis we place on the language. If the courts look at the importance that we apparently affix to the words ``under God'' by passing this legislation and increasing the magnitude of the attention we give the issue, we subvert the argument that the phrase has de minimis meaning and, in fact, increase the constitutional vulnerability of that phrase in the pledge. Mr. Speaker, when we were sworn in, we promised to uphold the Constitution. It is important to acknowledge that any court ruling based on constitutional rights will be unpopular. If the issue was popular, the complainant would be able to vindicate his rights using the normal democratic legislative process. Obviously, the fact that he had to rely on constitutional rights and go through the courts means that he was in the minority. This will always be the case with constitutional rights. You do not need the Constitution to protect the freedom of speech to say something that is popular. You only need it when the majority tries to use the democratic legislative process or police power to stop you from expressing your views, and stopping the majority from exercising that power will always be unpopular. Mr. Speaker, whatever we think of the recent California district court or the previous Ninth Circuit decisions, the only thing worse than those decisions is a spectacle of Members of Congress putting aside efforts to address the tragedies caused by Hurricanes Katrina and Rita, considering the appointments to the Supreme Court, completion of the appropriations process for the fiscal year that begins 3 days from now, and the need to address a budget deficit that jeopardizes the next generation in order to take time to pass this resolution. Such a spectacle only emphasizes the importance of the words ``under God'' and, simultaneously, undermines the only constitutional argument that supports the Pledge as it is, and that is, that the words are not important. Mr. Speaker, in that light, the majority of the Members of Congress will always disagree with the constitutional decision of the judicial branch, and so, Mr. Speaker, because this resolution actually makes it less likely that a court can find the Pledge unconstitutional and because what we think about the decision is actually irrelevant and because we have other important business to do, I would hope that this resolution is defeated. Mr. Speaker, I reserve the balance of my time.

Mr. SCOTT of Virginia

Mr. SCOTT of Virginia. Mr. Chairman, I just want to make clear the Supreme Court cases made it clear that you could discriminate with your personal church money, but not with Federal money. All of the cases are consistent. In fact, if my colleagues read the cases, they point out that if you are using Federal money, you cannot discriminate.

Mr. SCOTT of Virginia

Mr. SCOTT of Virginia. Mr. Chairman, I just wanted to remind the House that faith-based organizations can and do sponsor federally funded Head Start programs. Any sponsor who will agree not to discriminate in employment, if they can sponsor a program with the discrimination amendment, they can sponsor the program without that amendment if they would agree not to discriminate. What we are talking about is discrimination. Some people want to discriminate against Catholics, Jews, Muslims, African Americans. We had this discussion in the 1960s, and the consensus back then was that discrimination in employment was so offensive that we made it illegal. The victim needs to be protected and the weight of the Federal Government will fall down on the side of the victim. The vote was not unanimous. Some people did not like it then; they do not like it now. And we are discussing where should the weight of the government be, with the victim or with somebody trying to discriminate. This is Head Start. We should not give students of Head Start the idea that their parents were denied a federally funded job solely because of their religion. We have heard of the Supreme Court. All of the Supreme Court decisions have said it is okay for a church to discriminate in employment with church money. None have supported discrimination with direct Federal funding. We have heard of our forefathers in 1964. We know that since 1965 it has been illegal, at least until this administration, to discriminate with Federal money. Head Start has been reauthorized for over 40 years with the civil rights protections. President Clinton's name has been invoked. What is left out is his signing statement where he said that his analysis was that they could not discriminate with the Federal money under his analysis. This administration has changed that analysis, but we need to make sure that President Clinton's whole signing statement is included. Mr. Chairman, I submit for printing in the Record letters from numerous organizations including the National Head Start Association which oppose the discrimination amendment and ask us to vote ``no'' on the underlying bill if they sabotage civil rights protections. September 22, 2005. Dear Member of Congress: I have become aware that an amendment has been offered by Rep. Boustany (R-LA) to the Head Start bill on the House floor today that would give faith-based organizations providing Head Start services the right to discriminate with federal funds against employees who are of different faiths. As the State President of the Louisiana Head Start Association, I strongly oppose such an amendment. It is a sad day when Members of Congress try to manipulate compassion evoked by the national tragedy in my state of Louisiana caused by Katrina to pass a civil rights repeal in Head Start or jeopardize the passage of this law so important to the children of my state and our nation. I know, firsthand, that Head Start is a model for demonstrating that a strong prohibition on religious employment discrimination with federal funds is fully compatible with federal assistance to faith-based charities. Faith-based organizations, like the ones I oversee, can and do fully participate in federally funded programs without discriminating in hiring with those same federal funds. I see no reason to change the law to allow them to use federal funds to discriminate against our employees. My state's religiously affiliated providers are more than capable and willing to honor the civil rights requirements of the Head Start program. I am greatly concerned that the provision to remove civil rights protections for employees could have a negative impact on the children and families who participate in these programs. Tens of thousands of at-risk 3- and 4-year-old children currently in Head Start could lose their teachers-- who often are the most important adults to whom they have bonded, other than their parents--not because those teachers are doing a bad job, but because they are the ``wrong'' religion. As the State President of the Louisiana Head Start Association, I urge you to reject the Boustany amendment to allow discrimination in Head Start. Such a provision is incompatible with the mission of this program. Sincerely, Barbara Pickney, St. Landry Parish Head Start Program, State President of the Louisiana Head Start Association.

Mr. SCOTT of Virginia

Mr. SCOTT of Virginia. Mr. Speaker, I oppose the rule because it allows the Boustany amendment. Let us be clear. First of all, faith- based organizations sponsor Head Start programs now. They have and they will continue to. My own church hosted a Head Start program. They sponsor the programs, just like everybody else, on a level playing field. They have to use the money for Head Start and they cannot discriminate in employment. Any organization that can sponsor a Head Start program under that amendment can do it anyway if they agree not to discriminate. We are talking just about discrimination. We are not talking about allowing groups to sponsor Head Start programs. We are talking about allowing them to discriminate in employment with the Federal money. Now they can still discriminate with the church money, just not with the Federal money. This discussion really represents a profound change in civil rights discussions, because there was a time traditionally if an employer had a problem with somebody's religion, the employer has a problem because the weight of the Federal Government would come down supporting the victim. Now we are talking about what rights the group has to discriminate against the victim. If we are talking about religion, we are also talking about race because if you can discriminate based on religion, some religions are virtually all white, others virtually all black. So if you can discriminate based on religion, you can discriminate based on race. Where is your moral authority to tell somebody with their private money what they can do and cannot do, if you are going to turn around and allow people to discriminate with Federal money? Mr. Speaker, that is wrong and a rule that allows that is wrong. There used to be a time when parents would have to describe to their children why they could not eat at the lunch counter, why they had to sit in the back of the bus, why they could not get a job at certain firms. And now we are going to have to have parents tell children why they could not get a job at the Head Start program while their neighbors could get a job at the Head Start program. I want to remind Members that any organization can sponsor the federally funded Head Start program now if they agree not to discriminate. We do not need to turn the clock back, and we also do not need a rule that allows this to ruin the Head Start program.

Mr. SCOTT of Virginia

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

Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may consume. H.R. 3827 was introduced by the gentleman from Wisconsin (Chairman Sensenbrenner); the ranking member of the Committee on the Judiciary, the gentleman from Michigan (Mr. Conyers); and the ranking member of the Subcommittee on Immigration, the gentlewoman from Texas (Ms. Jackson-Lee). Mr. Speaker, among the many tragic consequences of Hurricane Katrina, immigrants and foreign visitors lost important immigration benefits; as the gentleman from Wisconsin (Mr. Sensenbrenner) indicated, spouses who had filed family-based visa petition on behalf of their family members who may have died, and that obviously nullifies those petitions. This bill would provide special immigration status for the surviving family members. Another example is the plight of foreign students who lost their schools in the hurricane. This bill would allow them to continue their student status at a new school if they can resume their studies by February 1. This bill was the result of bipartisan cooperation, and I urge my colleagues to support the Immigration Relief for Hurricane Katrina Victims Act of 2005.

Mr. SCOTT of Virginia

Mr. SCOTT of Virginia. Madam Speaker, I yield myself such time as I may consume. Madam Speaker, S. 1368, which passed the Senate by unanimous consent, is identical to H.R. 3020, which was reported out of the Committee on the Judiciary by voice vote without apparent opposition. For the reasons outlined by the chairman of the Committee on the Judiciary, the bill will reauthorize the U.S. Parole Commission for an additional 3 years. It will also give the Sentencing Commission emergency authority to promulgate sentencing guidelines which will implement sentencing policies reflective of recent changes in Federal law relating to sentencing in areas of obstruction of justice and anabolic steroids. Both provisions are necessary to continue to properly implement Federal sentencing laws, and I, therefore, urge my colleagues to support the bill. Madam Speaker, I yield back the balance of my time.

Mr. SCOTT of Virginia

Mr. SCOTT of Virginia. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, I rise in support of the amendment, and I yield to the gentleman from Michigan (Mr. Conyers), the ranking member of the Committee on the Judiciary.

Mr. SCOTT of Virginia. Mr. Chairman, I move to strike the last word. Mr. Chairman, in the recent case of Free Speech Coalition v. Ashcroft, the Supreme Court indicated that if the material is not obscene it cannot be prohibited unless real children are involved. This amendment prohibits simulated conduct, digital images that may have been produced without real children being involved. If real children are not involved, the material has to be technically obscene to be prohibited. The Supreme Court indicated in the decision that the fact that this material may whet someone's appetite or the nature of the case caused problems for law enforcement, those could not be the grounds for violating the Constitution in having material that is not obscene being prohibited. The case, whether you like it or not, and bringing it up as a floor amendment means we cannot try to conform the language to the Supreme Court decision, so the only thing we can do is to vote against it if we believe in the Constitution and if we read Free Speech Coalition v. Ashcroft.

Mr. SCOTT of Virginia. Mr. Chairman, if you are going to have any review, I think it ought to be a full review: sentencing, conviction, and otherwise. I would hope that we would not make the bill any worse than it is, and the underlying provision is bad enough.

Mr. SCOTT of Virginia. I yield to the gentleman from Arizona.

Mr. SCOTT of Virginia. Mr. Chairman, I move to strike the last word. Mr. Chairman, the language in the bill is bad enough. This just makes it worse. We should eliminate the section of the bill where the bill already severely restricts the right of those convicted of sex offenses from their access to appeal. Many who have been exonerated through DNA or other evidence have been exonerated and released due to their access to habeas corpus petitions. Restricting access to habeas will result in more innocent people being put to death or languishing in jail for crimes they did not commit. We have a serious question, Mr. Chairman, as to whether guilty people are entitled a fair trial. If you have a person who is not suggesting that they are actually innocent, but they just did not get a fair trial, they do not have access to habeas corpus anyway. An allegation of innocence is a prerequisite to getting into habeas corpus petitions anyway. This is just going to make it worse, and more innocent people will be in jail. I would hope we would not adopt the amendment to make it worse.