F. Sensenbrenner

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise in strong support of H.R. 7. Quite simply, the aim of this legislation is to encourage more community-based solutions to social problems in America. When implemented, it will provide some truly life-changing opportunities to many individuals struggling in our communities across the country. It says that faith-based organizations should no longer be discriminated against when competing for Federal social service funds because of a misconstrued interpretation of current law by some, and that we welcome even the smallest faith-based organizations into the war against desperation and hopelessness. As a result, new doors will be opened to the neediest in our communities to receive help and assistance that they seek. This is a wonderful and compassionate goal that most, if not all, should be able to embrace. In fact, H.R. 7 could very well improve our culture in ways that we have not seen in decades. The concept of Charitable Choice is not new. Federal welfare reform in 1996 authorized collaboration between government and faith-based organizations to provide services to the poor. Charitable Choice has allowed religious organizations, rather than just secular or secularized groups, to compete for public funding. Many faith-based organizations have been providing services to their community, but with government funding they are able to create new programs and expand existing ones. For example, the Cookman United Methodist Church in Philadelphia has created a program of ``education, life-skills, job placement, job development and computer literacy, and children and youth services'' with their Federal funding. By testing new solutions to the problem of poverty, the Cookman Church has used Charitable Choice funds to expand their program of needed services into a much larger and more meaningful one for their community. They have done this under existing Charitable Choice law in the 1996 Welfare Reform Act, which allows them to help those in need without having to hire lawyers to create a separate secularized organization and without having to rent expensive office space outside their neighborhood church. There are literally hundreds of other programs like that of the Cookman United Methodist Church that have benefited thousands of persons in need without raising constitutional concerns in their implementation. These organizations are striving to make a difference in communities all across America. It is a tragedy that those who move to help others by the strength of faith face added barriers to Federal social service funds based upon misguided understandings of the Constitution's religion clauses. Often it is those whose earthly compassion has the deep root of faith who stand strongest against the whims of despair. Different rules should not apply to them when they seek to cooperate with the Federal Government in helping meet basic human needs. Some of our colleagues have raised constitutional objections to this legislation. I believe that those objections, while sincere, are misguided. Charitable Choice neither inhibits free exercise of religion, nor does it involve the government establishment of religion. It simply allows all organizations, religious or non-religious, to be considered equally by the Government for what they can do to help alleviate our Nation's social ills. Unfortunately, it has become all too common for faith-based organizations to be subject to blanket exclusionary rules applied by the government grant and contract distributors based upon the notion that no Federal funds can go to pervasively sectarian institutions. However, the Congressional Research Service concluded in its December 27, 2000, report to Congress on Charitable Choice: ``In its most recent decisions, the Supreme Court appears to have abandoned the presumption that some religious institutions are so pervasive sectarian that they are constitutionally ineligible to participate in direct public aid programs. The question of whether a recipient institution is pervasively sectarian is no longer a constitutionally determinative factor.'' The pervasively sectarian test under which the patronizing assumption was made that religious people could be too religious to be trusted to follow rules against the use of Federal funds for proselytizing activity is, thankfully, dead. However, its ghost continues to linger in many of the implementing regulations of the programs covered by H.R. 7, and, unfortunately, in the rhetoric of many of H.R. 7's opponents. For those with constitutional concerns, I also ask them to consider the changes to H.R. 7 that were adopted by the Committee on the Judiciary and just amended in this bill with the self-executing rule. These changes firm up the constitutionality of the bill and expand the options of individuals to receive government services from the type of organization they are most comfortable with. To begin with, the bill now makes clear that when a beneficiary has objection to the religious nature of a provider, an alternative provider is required that is objectionable to the beneficiary on religious grounds, but that the alternative provider need not be non- religious. This same requirement appears in the Charitable Choice provisions of the 1996 Welfare Reform Act. If, of course, a beneficiary objects to being served by any faith-based organization, such a beneficiary is granted a secular alternative. Existing Charitable Choice law contains an explicit protection of a beneficiary's right to refuse to actively participate in a religious practice, thereby ensuring a beneficiary's right to avoid any unwanted sectarian practices. Such a provision makes clear that participation, if any, in a sectarian practice, is voluntary and non-compulsory. Further, Justices O'Connor and Breyer require that no government funds be diverted to religious indoctrination. Therefore, religious organizations receiving direct funding will have to separate their social service program from their sectarian practices. If any part of the faith-based organization's activities involve religious indoctrination, such activities must be set apart from the government- funded program, and, hence, privately funded. The bill as reported out of the Committee on the Judiciary now contains a clear statement that if any sectarian worship instruction or proselytization occurs, that shall be voluntary for individuals receiving services and offered separate from the program funded. Also the bill now includes a requirement that a certificate shall be separately signed by the religious organization and filed with the government agency that disperses the funds certifying that the organization is aware of and will take care to comply with this provision. The amendment also makes clear that volunteers cannot come into a federally funded program and proselytize or otherwise engage in sectarian activity. The Committee on the Judiciary also changed the bill to include a subsection to permit review of the performance of the program itself, not just its fiscal aspects. This amendment is needed to prevent an unconstitutional preference for faith-based organizations, as secular programs are subject to both types of review. One of the most important guarantees of institutional autonomy is a faith-based organization's ability to select its own staff in the manner that takes into account its faith. It was for that reason that Congress wrote an exemption from the religious discrimination provision of Title VII of the Civil Rights Act of 1964 for religious employers. All other current charitable choice laws specifically provide that faith-based organizations retain this limited exemption from Federal employment nondiscrimination laws. An amendment adopted by the Committee on the Judiciary replaced existing language in H.R. 7 with the same language used in the 1996 Welfare Reform Act, which was signed into law by President Clinton, with an additional clause making clear that contrary provisions in the Federal programs covered by H.R. 7 have no force and effect. This additional clause was not necessary in the 1996 Welfare Reform Act because it codified charitable choice rules for a new program, whereas H.R. 7 covers already existing programs that may have conflicting provisions. This amendment is offered to avoid any confusion. The language of the 1996 Welfare Reform Act did nothing to ``roll back'' existing civil rights laws, and that same language is used in this amendment. It is important for all to understand that this bill does not change the antidiscrimination laws one bit, either with respect to employees or beneficiaries. Faith-based organizations must comply with civil rights laws prohibiting discrimination on the basis of race, color, national origin, gender, age and disability. Since 1964, faith-based organizations have been entitled to the Title VII exemption to hire staff that share religious beliefs; and courts, including the Supreme Court, have upheld this exemption. Do the critics of those laws really want to revoke current public funding from the thousands of child care centers, colleges and universities that receive Federal funds in the form of Pell grants, veterans benefits, vocational training, et cetera, because these institutions hire faculty and staff that share religious beliefs? Remember, one of the primary goals of this legislation is to try to open opportunities for small entities that take part in Federal social service programs. It is particularly important to maintain this exemption for small faith-based entities, because they are the types of community organizations we hope will be encouraged by this bill to seek involvement in delivering social services. These small entities are not going to go out and create new organizations and staff that provide these services. So we do not want to force them to advertise, hire new people and possibly be sued in Federal court for a job they would like to be filled by people already on staff, namely, people who share their religious beliefs. One of the most revered liberal justices in the history of the Supreme Court, William Brennan, recognized that preserving the Title VII exemption where religious organizations engage in social services is a necessary element of religious freedom. In his opinion in the Amos case upholding the current Title VII exemption, Justice Brennan recognized that many religious organizations and associations engage in extensive social welfare and charitable activities such as operating soup kitchens and day care centers or providing aid to the poor and the homeless. Even where such activity does not contain any sectarian instruction, worship or proselytizing, he recognized that the religious organization's performance of such functions was likely to be ``infused with a religious purpose.'' He also recognized that churches and other entities ``often regard the provision of social services as a means of fulfilling religious duty and providing an example of the way of life a church seeks to foster.'' Charitable choice principles recognize that people in need should have the benefit of the best social services available, whether the providers of those services are faith-based or otherwise. That is the goal: helping tens of thousands of Americans in need. We are considering today whether the legions of faith-based organizations in the inner cities, small towns and other communities of America can compete for Federal funds to help pay the heating bills in shelters for victims of domestic violence, to help them pay for training materials teaching basic work skills, to help them feed the hungry, and to provide other social services to help the most desperate among us. Mr. Speaker, I urge my colleagues, even those initially opposed to H.R. 7, to join me today in voting for this bill and the expansion of charitable choice. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, reserving the right to object, I would point out to the gentleman from Michigan that while I personally have no objection, the general debate time is controlled by the Committee on Ways and Means. I would suggest that he request that of the chairman of the Committee on Ways and Means when he comes back to the Chamber. I am afraid that I would be trodding on their turf, so I would ask him to withdraw his unanimous consent request.

Mr. SENSENBRENNER. I object, Mr. Speaker.

Mr. SENSENBRENNER. Mr. Speaker, I yield the balance of my time to the gentleman from Ohio (Mr. Chabot), the chairman of the Subcommittee on the Constitution. (Mr. CHABOT asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise in strong opposition to the substitute. It not only removes key provisions of the bill, but it denies religious organizations civil rights protections they currently enjoy. Make no mistake about it, the substitute is a radical retrenchment of current law which flies in the face of a unanimous Supreme Court which upheld religious organizations' exemption from title VII, even when they perform social services that contain no religious worship, instruction, or proselytization. One of the most important charitable choice principles is the guarantee of institutional autonomy that allows faith-based organizations to select staff on a religious basis. H.R. 7 preserves this guarantee and is supported by no less a civil rights leader than Rosa Parks. She has said that H.R. 7 is an important response to urban America in its reduction of discriminatory barriers currently suffered by many grass roots churches who are unable to access funding for educational and social welfare programs. Now, if churches are allowed to compete for Federal social service funds, they must be able to remain as churches while doing so, and being able to hire those of the same faith is absolutely essential to being a church. Even former Vice President Al Gore during his campaign, and in a speech to the Salvation Army, said that, ``Faith-based organizations can provide jobs and job-training, counseling and mentoring, food and basic medical care. They can do so with public funds, and without having to alter the religious character that is so often the key to their effectiveness.'' Again, the only way a church can retain its religious character is if it can hire staff with those who share the same faith. In addition, the small churches of America will often be providing the social services covered by H.R. 7 with the same staff they currently have. That staff likely shares the same religious faith. The substitute would make it impossible, impossible for these small churches to contribute to Federal efforts against desperation and hopelessness, and it is precisely these small churches that H.R. 7 intends to welcome into that effort. Section 702 of the Civil Rights Act of 1964 has for decades exempted private nonprofit religious organizations engaged in both religious and secular nonprofit activities from title VII's prohibition on discrimination in employment based upon religion. The Supreme Court, including Justices Brennan and Marshall, upheld this exemption in the Amos case: ``Section 702(a) is not waived or forfeited when a religious organization receives Federal funding. No provision of section 702 states that its exemption of nonprofit religious organizations from title VII's prohibition on discrimination in employment is forfeited when a faith-based organizations receives a Federal grant,'' but the substitute would do just that, and change current law. The portion of the substitute that says that no Federal funds can go to an organization that engages in sectarian instruction, worship, or proselytization at the same time and place as a government program is fatally unclear. Does it mean that no sectarian activities can occur anywhere in a church when only the church basement is being used to run a life-skills class under a covered Federal program? If two rooms in the church are being used to shelter a battered spouse, does the rest of the church have to cease all religious functions? The substitute contains language that may say yes to those questions. Inner-city churches in low-income neighborhoods simply cannot afford to set up duplicate facilities to run these social service programs. The substitute punishes small churches, particularly those in poor neighborhoods that cannot and should not have to set up two different buildings to take part in Federal social service programs. Regarding the indirect funding language of the bill, the Supreme Court approved indirect funding as a way to much reduce church-state separation as far back as 1983 in Mueller v. Allen and in Witters v. The Washington Department of Social Services to the Blind in 1986. Subsection 1 in H.R. 7 is about more than vouchers, which is just one type of indirect funding mechanism. It is not necessary that a beneficiary actually be handed a piece of paper called a voucher and carry it to the point of service. According to the Supreme Court, indirect funding is where a beneficiary has genuine choice of social service providers; where the exercise of that choice determines which provider ultimately receives the funding, because the beneficiary decides where the funding goes and not the government. The Supreme Court has said that the government's responsibility stops with the beneficiary. Therefore, whether the funds end up in a secular or religious group is a matter of private choice, and the establishment clause does not regulate private choices. The minority party complains of hazards of church-state separation with H.R. 7. When the majority proposes subsection 1, which would alleviate all these first amendment concerns of entanglement, and threats to the autonomy of the faith-based organizations, they object to the perfect solution to their complaints. The minority also acts like indirect funding is a new and untested idea. We have been living with the child care development block grant act since late 1990. With this act, the Federal Government has been funding services provided by churches via indirect aid, which provide over 40 percent of the indigent day care in this country. It has resulted in no problems. Indeed, none of the radical separationist organizations have dared to even file a lawsuit to challenge this act. It is not just day care that can be funded by indirect aid. Alcohol and drug rehabilitation centers can also work in this manner. The State and local government determines who meets the qualifications for these services, and counselors work with qualified individuals to look over the centers available in his or her community. The individual makes a choice, and a call is made affecting a referral. The beneficiary goes to the rehab center and is enrolled. Then the center notifies the State, and checks are sent each month that the services are rendered to that beneficiary. Subsection 1 is also narrowly drafted. A cabinet level Secretary does not have carte blanche. No program can be shifted to indirect aid without three requirements being met: one, it must be consistent with the purpose of the program; two, it must be feasible; and three, it must be efficient. This discretion can be challenged under the administrative procedure act. For all these reasons, I urge my colleagues to oppose the substitute. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Illinois (Mr. Kirk).

Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman from Illinois (Mr. Hastert), the distinguished Speaker of the House.

Mr. SENSENBRENNER. Mr. Speaker, I yield 1\1/2\ minutes to the gentleman from Ohio (Mr. Hall).

Mr. SENSENBRENNER. Mr. Speaker, I yield the balance of my time to the gentleman from Oklahoma (Mr. Watts).

Mr. SENSENBRENNER. Mr. Speaker, I rise in opposition to the motion to recommit.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Ohio (Mr. Traficant). (Mr. Traficant asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from California (Mr. Baca).

Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman from New Jersey (Mr. Pascrell).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Mississippi (Mr. Shows).

Mr. SENSENBRENNER. Mr. Speaker, I yield 5 minutes to the gentleman from Illinois (Mr. Hyde), the distinguished former chairman of the Committee on the Judiciary. (Mr. HYDE asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Indiana (Mr. Pence). (Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the distinguished gentleman from Texas (Mr. Sam Johnson). (Mr. SAM JOHNSON of Texas asked and was given permission to revise and extend his remarks).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Virginia (Mr. Goodlatte).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Pennsylvania (Mr. Platts). (Mr. PLATTS asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Indiana (Mr. Hostettler). (Mr. HOSTETTLER asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from South Carolina (Mr. Brown).

Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of my time. Mr. Speaker, I think we have had a very vigorous debate that talks about the pros and cons of the flag protection constitutional amendment. I believe that all of the arguments that have been sincerely placed against this amendment really do not have merit and should be ignored, and this amendment should be passed. First, we have had the argument that this amendment amends the Bill of Rights. It does no such thing. There is no statement in the text of the amendment that the first amendment is modified in any way, amended in any way, or repealed in any way. Secondly, we have heard the argument that this should be protected free speech under the Constitution of the United States. But what we are talking about here is not speech, we are talking about actions and burning or otherwise desecrating the flag of the United States of America. Nobody is right to express themselves on any issue facing our country, on any candidate for office, on the performance or voting record of any incumbent officeholder this way. No one is in any way diminished by this constitutional amendment. What this constitutional amendment does is to give Congress the power to prohibit actions, not speech, that desecrates the flag of the United States of America. Some also believe that the right to free speech is unlimited as a result of the first amendment. That is not the case at all. No one can shout ``fire'' in a crowded theater. No one can issue defamatory statements, whether verbally or in writing, without being called to account. There are limits on free speech, and 80 percent of the American people believe that a flag desecration constitutional amendment is a limit that we ought to have, not on speech but on actions. Then we have heard that the Supreme Court of the United States, on a five-to-four decision, has said that this is protected political expression. We have heard that we should not amend the Constitution because we disagree with a Supreme Court decision. Our Constitution has been amended 17 times since the Bill of Rights was ratified in 1791. Three of those 17 amendments overturned Supreme Court decisions that two-thirds of the Congress and three-quarters of the State legislatures decided were not good law. The 11th amendment construing the judicial power of the United States overturned such a Supreme Court decision. The 14th amendment granting equal protection under the law in the eyes of both the Federal and State government overturned the Dred Scott decision. The sixteenth amendment, which allowed the Congress to impose an income tax, overturned a decision that said that the Federal income tax violated the constitutional prohibition on not having proportional allocation of taxes among the States. So when the Supreme Court is wrong, one of the remedies that the Congress and the States have is to amend the Constitution of the United States to correct the errors of the Supreme Court. Those nine people across the street, in a co-equal branch of government, are entitled deference to their decisions, but they are not infallible, and they do make mistakes. In the case of both the Johnson and the Eichman case, they have made a mistake. One of the checks and balances that the Framers of the Constitution placed on the judicial branch of government is to authorize the Congress and the States to amend the Constitution of the United States. This should not be done lightly, and it has not been done lightly. But given the fact that the Supreme Court twice has said that any statute, Federal or State, proposing criminal penalties for the physical desecration of the flag of the United States of America is unconstitutional, the only alternative we have as a nation is for us today, by a two-thirds vote, to approve this amendment for the other body to follow suit and three-quarters of the States to ratify this amendment. Today we have an opportunity to correct a wrong of the Supreme Court. The House should do the right thing, Mr. Speaker, and pass this constitutional amendment.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I rise in opposition to the amendment in the nature of a substitute.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise in opposition to the amendment in the nature of a substitute by the gentleman from North Carolina (Mr. Watt). And so that the membership is clear what the gentleman from North Carolina (Mr. Watt) is trying to do, I would like to read his proposed constitutional amendment: ``Not inconsistent with the first article of amendment to this constitution, the Congress shall have the power to prohibit the physical desecration of the flag of the United States.'' Now, the only difference between the substitute of the gentleman from North Carolina and House Joint Resolution 36 is the phrase ``not inconsistent with the first article of amendment to this constitution.'' What the substitute does is to punt this issue right back to the Supreme Court of the United States, because the Court twice, in a 5 to 4 decision in the Johnson and Eichman cases, allowed flag desecration based on first amendment grounds. This is kind of a not-so-subtle way of saying that the Supreme Court was right, because if we send this whole issue back to the Supreme Court, they will use the precedent that they established in 1989 and 1990 as controlling and allow flag desecration to go on. But I think there is a greater issue involved than just the issue of whether or not the Constitution should be amended to prohibit flag desecration, and that is whether or not this House of Representatives should go along with unraveling the elaborate system of checks and balances put into our Constitution by the framers in order to prevent one branch of government from becoming too powerful. As I said during the general debate, Mr. Speaker, the amendment procedure for the Constitution of the United States was, in part, designed to prevent the courts from becoming too powerful. Three of the 17 amendments that were proposed following the Bill of Rights, and ratified by the States, overturned court decisions that were determined not to be good law by the Congress and by three-quarters of the State legislatures. Now, if the gentleman from North Carolina and the supporters of his amendment want to toss this matter back to the courts, then just defeat the amendment that we are debating today. Because that will mean that the court decisions in Johnson and Eichman will be the controlling law until the Supreme Court changes its mind and either overrules or modifies its decisions. I believe that the House of Representatives today should hit this issue head on. If my colleagues do not want a constitutional amendment to protect the flag from physical desecration, then vote it down on the merits on the floor, but do not put this House on record saying that if we agree with the Supreme Court decision then we should amend the Constitution in order to ratify that Supreme Court decision, because that is what the substitute offered by the gentleman from North Carolina does. Vote down the Watt substitute, pass the original amendment that has been reported by the Committee on the Judiciary. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield such time as he may consume to the gentleman from Ohio (Mr. Chabot).