F. Sensenbrenner

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Madam Speaker, I move to suspend the rules and pass the bill (H.R. 3036) to authorize appropriations for the Department of Justice for fiscal years 2004 through 2006, and for other purposes, as amended.

Mr. SENSENBRENNER. Madam Speaker, I yield myself such time as I may consume. Madam Speaker, I rise in support of H.R. 3036, the Department of Justice Appropriations Authorization Act for Fiscal Years 2004 through 2006. During the 107th Congress, I was pleased to secure bipartisan passage of the 21st century Department of Justice Authorization Appropriations Act, which comprehensibly reauthorized the Department of Justice for the first time since 1979. During consideration of that legislation, I committed to pursuing a regular authorization process to ensure that the Committee on the Judiciary provides the Department of Justice with clear guidance and continuing oversight. With an annual budget of around $20 billion and a workforce of more than 100,000 employees, the Department of Justice is an enormous institution. Its importance has only increased since the tragic events of September 11, 2001. As chairman of the Committee on the Judiciary, I have worked to provide the Department with the necessary resources to assess, prevent, and punish terrorist acts that threaten America's domestic security while preserving our civil liberties. The committee has also worked to ensure that the Department's structure, management, and priorities are tailored to best fulfill its numerous other missions. Over the last several months, the committee has conducted several hearings to identify the needs and priorities of the department. These hearings reflected the committee's continuing commitment to oversee all of the Department's activities. This bill reflects the information obtained in those hearings. H.R. 3036 is divided into five titles. The first title authorizes the Department of Justice appropriations for fiscal years 2004 through 2006. With minor exceptions, these authorizations generally reflect the President's budget request. Title II makes numerous improvement and upgrades to the Department's grant program. Most importantly, it combines the current Byrne formula grant, Byrne discretionary grant, and Local Law Enforcement Block Grant programs into one Byrne Memorial Justice Assistance Grant Program with an authorization similar to the amount appropriated for all three programs in recent years and a formula that closely follows current law. The administration has requested this consolidation as a way of better serving State and local governments. It reauthorizes the COPS program while recasting it as one single block grant program covering all of its current purposes so local governments will need only to file one COPS application for any of these purposes. I believe that this will greatly improve the efficiency of the COPS program. Among other changes, title II provides for new auditing and training capacity for all DOJ grant programs to eliminate waste, fraud, and abuse. It provides the first statutory authorization for the Weed and Seed Program. It establishes a congressional medal and plaque for individuals in units that responded to the 9/11 attacks. And, finally, this reauthorizes the bulletproof vest program. Title III makes a variety of miscellaneous changes to other aspects of the Department of Justice. It requires DOJ to use existing Federal facilities for training and conferences as opposed to paying for private facilities. It also establishes a dedicated privacy officer at the Department to ensure that the Department utilizes technologies that do not erode privacy protection relating to the use, collection and disclosure of personally identifiable information. Modeled after the privacy officer this committee established in the Department of Homeland Security, this provision advances the committee's uncompromising commitment to the preservation of civil liberties at the Department. Title IV establishes a new office within DOJ designed to assist in the capture of terrorists who harm Americans overseas. Title V provides a statutory authorization to the already existing FBI Office of Counterintelligence. I introduce this legislation with the support of the gentleman from Michigan (Mr. Conyers), and I have worked closely with him on it in every step of the way. Bipartisan cooperation was the hallmark of this legislation in the last Congress, and I am pleased that this spirit of bipartisanship continued in this Congress. We have also worked closely with the appropriators to meet their concerns. H.R. 3036 provides the Department with the tools, resources and direction necessary to operate efficiently and effectively. By identifying solutions to the growing challenges faced by Federal law enforcement, this committee and Congress will be the strong partner the Department needs as we work for the safety and security of all Americans. I urge my colleagues to support this bill. Madam Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Madam Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on H.R. 3036 currently under consideration.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I have no further requests for time, and I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, H.R. 3095 simply clarifies title 4 of the United States Code to permit the chief elected officer of a city or locality to order the United States flag flown at half mast to honor the death of a present or former official of that locality. Though current law does not expressly prohibit a local official from executing this decision, it does not specifically grant this authority either. In the unfortunate event of a death of a local official, the law's lack of clarity regarding this authority has forced local officials to seek permission from either the President of the United States or the Governor of their respective State, both of whom have explicit authority under current law to order the flag lowered. As we all recognize, an individual's death often cannot be anticipated, and when a community is faced with such a loss, the President or Governor may not be able to be give immediate consideration to the request to lower the flag. Recognizing this problem, I believe that it is important that we vest our local officials with this authority rather than run the risk of missing an opportunity to honor and recognize the service of the deceased local official. I would note that similar legislation was passed by the House in the 107th Congress by a vote of 420 to nothing, but unfortunately no action was ever taken by the other body. I urge my colleagues to once again support this legislation. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on the bill, H.R. 3095, currently under consideration.

Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.

Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 3095) to amend title 4, United States Code, to make sure the rules of etiquette for flying the flag of the United States do not preclude the flying of flags at half mast when ordered by city and local officials, as amended.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I have no further requests for time, and I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.

Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 1768) to amend title 28, United States Code, to allow a judge to whom a case is transferred to retain jurisdiction over certain multidistrict litigation cases for trial, and for other purposes, as amended.

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on H.R. 1768, the bill, currently under consideration.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, this legislation addresses two important issues in the world of complex multidistrict litigation. First, the bill reverses the effect of the 1998 Supreme Court decision in the so-called ``Lexecon'' case. For 30 years prior to the Lexecon decision, a Federal judicial entity, the Multidistrict Litigation Panel, selected the one U.S. district court that was best suited to handle pretrial matters in complex multidistrict cases filed in State and Federal district courts around the country. The district courts selected, called the ``transferee'' court, would then invoke a separate general venue statute to retain all the cases for trial matters. This situation promoted judicial administrative efficiency, then produced results that were more uniformly fair to the litigants. In the 1998 Lexecon decision, the Supreme Court ruled that the statute empowering the MDLP to operate did not authorize a transferee court to retain cases after the pretrial matters were concluded. The bill amends the Federal multidistrict litigation statute by explicitly allowing a transferee court to retain jurisdiction over referred cases for trial, for the purposes of determining liability and punitive damages, or to refer them to other districts as it sees fit. It simply responds to the Court's admonition that Congress amend the statute to allow the MDLP and the affected transferee courts to act as they had done without incident for 30 years prior to Lexecon. Second, the passage of H.R. 1768 ensures that a special ``disaster'' litigation statute enacted last term will operate as Congress intended. Among other prescribed conditions, this new law creates original jurisdiction for U.S. district courts to adjudicate cases in which the accident has led to 75 deaths. This provision, now codified as a part of the Department of Justice authorization act from the 107th Congress, contemplates that the Lexecon problem is solved. In other words, the new disaster litigation law only creates original jurisdiction for a U.S. district court to accept these cases and qualify as a transferee court under the multidistrict litigation statute. But the transferee court still cannot retain consolidated cases for the determination of liability and punitive damages which effectively guts the statute. In this sense, the Lexecon fix set forth in H.R. 1768, its freestanding merits aside, also functions as a technical correction to the recently enacted disaster litigation statute. In sum, this legislation speaks to process, fairness, and judicial efficiency. It will not interfere with jury verdicts or compensation rates for litigators. I urge my colleagues to join me in a bipartisan effort to support this bill. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Chairman, I yield 5 minutes to the gentleman from Florida (Mr. Keller), the author of the bill.

Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, the food industry is our Nation's largest private sector employer, providing jobs to some 12 million Americans. Today, that industry is threatened by an array of legal claims alleging that it should be liable to pay damages for the overconsumption of its legal products by others. H.R. 339, the Personal Responsibility in Food Consumption Act, is designed to foreclose frivolous obesity-related lawsuits against the food industry. From June 20 to the 22nd of last year, personal injury lawyers from across the country gathered at a conference designed to ``encourage and support litigation against the food industry.'' Attendees were required to sign an affidavit in which they agreed to keep the information they learned confidential and to refrain from consulting with or working for the food industry before December 31, 2006, apparently setting a deadline for bringing that vital industry to its knees in a nationally coordinated legal attack. The hatred of some lawyers for the food industry is stark. Ralph Nader, for example, has compared food companies to terrorists, saying that the double cheeseburger is ``a weapon of mass destruction.'' H.R. 339 prohibits obesity or weight-gain-related claims against the food industry, with reasonable exceptions, including those in which a State or Federal law was broken and as a result the person gained weight, and those in which a company violates an expressed contract or warranty. Also, because this bill only applies to claims based on ``weight gain'' or ``obesity,'' lawsuits could go forward under the bill, if, for example, someone gets sick from a tainted hamburger. The bill also contains essential provisions governing the conduct of legal proceedings. H.R. 339 includes the very same discovery provisions designed to prevent fishing expeditions that are already a part of our Federal securities laws. It also contains provisions that appropriately require that a complaint set out the fact as to why the case should be allowed to proceed. Some trial lawyers are mounting an attack on personal responsibility against the advice of the Nation's leading weight-loss experts. Listen to the insightful words of Dr. Gerard Musante, a clinical psychologist with training at Duke University Medical Center, who has worked for more than 30 years with thousands of obese patients. He is the founder of Structure House, a residential weight-loss facility in Durham, North Carolina. Dr. Musante said the following at a Senate hearing on this legislation: ``Through working with obese patients, I have learned that the worst thing one can do is to blame an outside force to get themselves `off the hook,' to say it's not their fault and that they are a victim. Congress has rightly recognized the danger of allowing Americans to continue blaming others for the obesity epidemic. It is imperative that we prevent lawsuits from being filed against any industry for answering consumer demands. The fact that we are addressing the issue here today is a step in the right direction.'' The chairman of the American Council for Fitness and Nutrition, Susan Finn, has also written that ``if you are obese, you don't need a lawyer; you need to see your doctor, a nutritionist and a physical trainer. Playing the courtroom blame game won't make anyone thinner or healthier.'' Even the Los Angeles Times, which rarely agrees with people on this side of the aisle, has editorialized against such lawsuits, stating, ``People shouldn't get stuffed, but this line of litigation should.'' On the other hand, the lobbying organization for personal injury attorneys, the Association of Trial Lawyers of America, which opposes this legislation, has published a litigation instruction manual that openly belittles jurors who believe in ``personal responsibility.'' According to that instruction manual, ``Often a juror with a high need for personal responsibility fixates on the responsibility of the plaintiff. According to these jurors, a plaintiff must be accountable for his or her own conduct. The personal responsibility jurors tend to espouse traditional family values. Often these jurors have strong religious beliefs. The only solution is to identify these jurors and exclude them from the jury.'' Besides threatening to erode values of personal responsibility, the legal campaign against the food industry threatens the separation of powers. Nationally coordinated lawsuits seek to accomplish through litigation that which has not been achieved by legislation and the democratic process. As one mastermind behind lawsuits against the food industry has stated, ``If the legislatures won't legislate, then the trial lawyers will litigate.'' In order to preserve the separation of powers and support the principle of personal responsibility and to protect the largest private sector employer of the United States, let us pass H.R. 339. Mr. Chairman, at this time, I will insert in the Record jurisdictional letters the gentleman from Texas (Chairman Barton) and I have exchanged regarding this legislation. Congress of the United States, House of Representatives, Washington, DC, March 4, 2004. Hon. F. James Sensenbrenner, Jr., Chairman, Committee on the Judiciary, House of Representatives, Washington, DC. Dear Chairman Sensenbrenner: On January 28, 2004, the Committee on the Judiciary ordered reported H.R. 339, the Personal Responsibility in Food Consumption Act. As ordered reported by your Committee, this legislation contains a number of provisions that could fall within the jurisdiction of the Committee on Energy and Commerce. Specifically, I believe that H.R. 339 would impose a new scienter requirement with respect to certain enforcement actions taken by agencies and statutes within our jurisdiction. This requirement could fundamentally alters how agencies, such as the Federal Trade Commission and the Food and Drug Administration, enforce violations of laws they administer. Recognizing your interest in bringing this legislation before the House expeditiously, the Committee on Energy and Commerce agrees not to seek a sequential referral of the bill. In exchange, you have agreed to eliminate our jurisdictional concerns with a floor amendment that expressly eliminates lawsuits brought under the Federal Trade Commission Act and the Federal Food, Drug, and Cosmetic Act from the definition of ``qualified civil liability action'' under the legislation. By agreeing not to seek a sequential referral, the Committee on Energy and Commerce does not waive its jurisdiction over the bill as your committee ordered it reported. In addition, the Committee on Energy and Commerce reserves its right to seek conferees on any provisions within its jurisdiction which are considered in any House-Senate conference. I request that you include this letter and your response as part of the Congressional Record during consideration of this bill by the House. Sincerely, Joe Barton, Chairman.

Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.

Mr. SENSENBRENNER. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, unfortunately, the gentlewoman from Texas' argument has nothing to do with her amendment and the examples that she has used has nothing to do with this bill. First, what the amendment does is exactly what the gentleman from Florida (Mr. Keller) has indicated, and that is to say, that a company could sue for getting too fat. Well, a company is a piece of paper that is signed by the Secretary of State of the State of corporation, and has the State seal affixed to it. Companies do not get fat, at least in the physical way that this bill is designed to address. Secondly, the gentlewoman from Texas brings up the case of the lawsuit that was filed against Oprah Winfrey. That was a defamation suit. This bill has nothing to do with allegations of defamation. Anybody who claims to have a cause of action for defamation is perfectly able to go to court and file their case. So I do not understand what relevance the gentlewoman's amendment has to the issues that are presented to this bill, and that is why it should be defeated.

Mr. SENSENBRENNER. Mr. Chairman, I rise in opposition to the amendment. This amendment would prevent the application of H.R. 339 to pending lawsuits and must be defeated. The amendment would essentially gut the entire bill by preventing the dismissal of pending lawsuits. If such an amendment passed, all that would happen is that hundreds of additional cases would be filed right before the date of enactment. That is exactly what happened in Texas and Mississippi when those States recently enacted legal reforms that did not preclude pending cases. Such an amendment, as offered by the gentleman from North Carolina, would therefore make the current situation much worse. The Supreme Court has held that Congress can impose rules that apply retroactively, if it does so, pursuant to an economic policy. Review of retroactive legislation under the due process clause is no more than a variety of judicial regulation of economic activity under the concept of substantive due process. The general principles the Supreme Court has handed down regarding the constitutionality of retroactive legislation under due process principles were summarized by the court as follows: ``The strong deference accorded legislation in the field of national economic policy is no less applicable when that legislation is applied retroactively. Provided that the retroactive application of a statute is supported by a legitimate legislative purpose, furthered by rational means, judgment about the wisdom of such legislation remain within the legislative and exclusive branches. The retroactive legislation does not have to meet a burden not faced by legislation that has only future effects, but that burden is met simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose,'' and that is Pension Benefit Guaranty Corporation v. R.A. Gray & Company decided by the Supreme Court in 1984. This bill aims to save the national food industry from bankruptcy due to pending lawsuits and is an enactment pursuant to a national economic policy. The Supreme Court also upheld the retroactive application of the liability provisions of the Multiemployer Pension Plan Amendments Act of 1980 against the challenge that the withdrawal liability provisions violated the fifth amendment taking of property clause. The provision of the Act that required an employer to fund its share of a pension plan was viewed by the court as a law regulating economic activity to promote the common good. Therefore, the law was not an invalid taking of property for which compensation was due. That is Connolly v. Pension Benefit Guaranty Corporation, 1986. This amendment is a bad one. It is designed to gut the legislation and should be defeated.

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

Mr. SENSENBRENNER. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, first of all, this bill has nothing to do with weight loss products, whether they are food supplements or drugs that require a prescription or drugs that are sold over the counter. It only deals with food that makes people increase their weight so that they become obese and have all of the medical problems related to obesity. Now, on page 5 of the bill, ``Qualified Product'' is defined in section 201(f) of the Federal Food, Drug and Cosmetic Act; and this section of the Food, Drug and Cosmetic Act reads as follows: ``The term food means when an article is used for food or drink for man or other animals, chewing gum and articles used for components of any such article.'' So all of what the gentlewoman from Texas complains about is not covered in this bill because it is not a qualified product as defined by the bill. And I will not yield to the gentlewoman. She has been up twice to try to explain what she is trying to do. She is just plain wrong. And, secondly, there is one other thing that I think is very relevant, and this comes from the black and white provisions of her own amendment as in the Congressional Record. It talks about neuropsychological damage or other complications which may generally be associated with a person's weight gain or obesity. Now, to say that someone who is obese has got psychological damage, I think, gets to the point of the gentleman from Florida saying that there are a lot of people who can be both fat and happy. If the gentlewoman from Texas wants to draft an amendment to aim at the target, this was not it because the gun is shooting in the wrong direction.

Mr. SENSENBRENNER. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, I am very supportive of food labeling requirements, including labeling requirements for a genetically-modified food, and would support such legislation if it were coming as an amendment to the Pure Food, Drug and Cosmetic Act. However, the amendment of the gentleman from New Jersey is the wrong way to do it, and here is why. If the amendment of the gentleman from New Jersey passes and the bill is enacted into law with his amendment, then all someone needs to do to defeat the immunity that is given to the food industry under this bill is to simply allege that there was not the proper notice that was given. This allegation, at least in terms of the preliminary motions in court, is taken as true, and that sets up a question of fact. All of the expenses that are needed in terms of defending a lawsuit, such as depositions and the like, are going to have to be incurred in order to prove that there was the proper notice given or that there were no genetically-modified organisms that were supplied in the food that the plaintiff consumed. So as a result, in the name of better labeling rather than attacking this issue as an amendment to the Pure Food, Drug and Cosmetic Act, which is where I think it belongs, the gentleman attempts to have what is in the jurisdiction of another committee and which deals with another enactment on the statute books of the United States of America through this method. I would support the gentleman from New Jersey if he was doing it the proper way through an amendment to the Food, Drug and Cosmetic Act, but this is not the way to do it. Now, secondly, there is nothing in the gentleman's amendment that says what constitutes an adequate notification. Does an adequate notification consist of the nutritional sign on the wall of a fast food restaurant that talks about ingredients and that nobody stands and stares at unless the line is so long that they have to do it? Does it require that there be this kind of a label on every package that is handed to the customer with the food contained in it? These are the types of things that really should not be left up to the courts to, in their infinite imagination, determine what is adequate and what is not; it should be done in the proper way by the proper committee, and that is why this amendment ought to be rejected.

Mr. SENSENBRENNER. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, listening to the gentleman from Washington (Mr. Inslee) I think shows the differences between those of us who support this legislation and those of us who oppose this legislation. First, the example that he used relative to the professional baseball player who unfortunately passed away, this bill does not apply to. It is a complete unrelated argument and the gentleman from Florida (Mr. Keller) has pointed that out. But the gentleman from Washington (Mr. Inslee) persists on using this as an example. And then the gentleman from Washington (Mr. Inslee) quotes the story of the press conference that was held yesterday relative to obesity catching up to tobacco as the number one killer of people in the United States of preventable conditions. Now, the problem with that attitude is that those who espouse it expect the government to take over personal responsibility. The victim always finds someone else to blame for his or her own behavior. And what this bill does is that it says, do not run off and file a lawsuit if you are too fat and you end up getting the diseases associated with obesity. It says, look in the mirror, because you are the one who is to blame. And I have referred twice to a doctor in North Carolina and to the woman who is the president of the American Council on Fitness and Nutrition in saying that if you are obese, do not get a lawyer. See your doctor. See a nutritionist. See a personal trainer. And what this bill does is it will pin the responsibility of those whose job it is to correct the problem to begin with and that is the person who caused the condition which could have been preventable. Mr. Chairman, I yield to the gentleman from Florida (Mr. Keller).

Mr. SENSENBRENNER. Mr. Chairman, I would ask the gentleman if Santa Claus is both fat and happy?

Mr. SENSENBRENNER

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

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on H.R. 339.