Richard Shelby

Mr. SHELBY

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SHELBY

Mr. SHELBY. Madam President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. SHELBY. Madam President, I have an amendment at the desk--No. 693, I believe it is.

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 Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SHELBY. Mr. President, I ask unanimous consent to amend the amendment that I have filed that is the subject of debate. I send the modification to the desk.

Mr. SHELBY. Madam President, I offer today on behalf of myself and the senior Senator from Alabama [Mr. Heflin] an amendment to ensure that individuals guilty of wrongful deaths are not provided unfair and unwarranted protection by the product liability reform legislation we are considering today. This amendment we are offering was accepted last week by both sides but was excluded from the Gorton-Rockefeller-Dole amendment today. I believe that all of my colleagues will support this measure once they take time to examine its merits. It is unique to the State of Alabama. My State of Alabama has a wrongful death statute, the damages of which are construed as only punitive in nature--not compensatory but only punitive in nature. Under the product liability bill that we are considering today, along with some of the proposed amendments to this bill, people who have committed or are guilty of a wrongful death in my State of Alabama, the damages available will be severely limited. While the bill here allows for additur, the additur procedures in this legislation are cumbersome at best and possibly unworkable. Madam President, in 1852, I believe it was, the Alabama Legislature passed what is known as the Alabama Homicide Act. This act permits a personal representative to recover damages for a death caused by a wrongful act, omission, or negligence. For the past 140 years, the Alabama Supreme Court has interpreted this statute as imposing punitive damages for any conduct which causes death. Alabama believes that all people have equal worth in our society so the financial position of a person is not used as a measure of damages in wrongful death cases in Alabama as it possibly is in other States. The entire focus of Alabama's wrongful death civil action is on the cause of death. The amendment I am offering today on behalf of myself and Senator Heflin will provide that in a civil action where the alleged harm to the claimant is death and the applicable State law only allows for punitive damages, the punitive damages provision of this bill will not apply. In other words, this amendment will only apply to my State of Alabama. Madam President, I believe there are legitimate reasons to exclude from the coverage of this bill actions such as those brought under Alabama's wrongful death statute. Cases of wrongful death are often some of the most legitimate instances where punitive damages should be awarded. Everyone in this body knows that I have great reservation about this legislation now before us. However, I do believe the addition of this amendment will help ensure that this bill will not unduly, not unduly, Madam President, penalize the citizens of my State. I urge my colleagues to support this important amendment. Mr. HEFLIN addressed the Chair.

Mr. SHELBY. Mr. President, I will be brief. I would just like to say again, I believe it was in 1852, the Alabama Supreme Court decreed that there would be, in a wrongful death action, punitive damages only, and that has worked in my State since 1852. That is one reason I oppose all of this legislation. Every State has different problems. Alabama, my State, is unique as far as measuring the wrongful death damages. They do it by punitive damages. It is not anything new. It goes back way over 100 years. But it has worked. It has worked for my State. This would only deal in wrongful death cases, nothing else. All we are asking the Senate to do is to preserve what we have and what we have had for over 100 years. Mr. HEFLIN addressed the Chair.

Mr. SHELBY. The Senator is correct. It just clarifies this amendment. I mention in the amendment section 107. That is all it does.

Mr. SHELBY

Mr. SHELBY. Mr. President, the defenders of the current wording of the Endangered Species Act have engaged in a desperate attempt over the past few years to claim that the act is flexible, that it takes account of human economic and social needs and that it actually works at recovering species. They are dead wrong on each of these points. The ESA currently takes almost no account of human economic concerns, provides less flexibility for private land owners than for Federal agencies, and is an open-ended statute with no focus on the recovery of endangered species. Less than 20 species have ever been delisted and most of these actions were the result of listing errors. The effort to reform this law is about bringing flexibility, common sense and effectiveness to the statute. Something 4,000 listed and candidate species and virtually the entire country covered by the range of one or more endangered species, the imperative to act to change the law has never been stronger. As currently constructed, the bill makes many needed changes to what is, in its design and application, a misguided and overly broad statute. The current law provides no mandatory requirement for the independent review of the science supporting listing decisions. This legislation would make such a peer review mandatory, upon request of an affected party. In addition, the bill would create a binding conservation and recovery plan for each listed species. Currently, recovery plans are not required for each listed species and have no binding effect on the Secretary of Interior even when they are promulgated. As a result, a species listing becomes an open ended commitment with no focus on recovering and ultimately delisting a species. The bill also provides important flexibility and discretion to the Secretary of the Interior in carrying out the requirements of the act. Under this legislation, the Secretary will be given broad discretion as to how to proceed with a species' recovery or to decide whether recovery is at all feasible for some species. In addition, the Secretary will be given the authority to issue regional exemptions from the take provisions of the act for particular activities that may or may not affect the habitat of a given species. Such an exemption process could have dramatic effects in preventing future regional train wrecks where entire categories of commercial activities are halted by a species listing. The bill also narrows the definition of harm to a species back to its congressionally intended scope of meaning actual injury to a member of species. The current broad interpretation of ``take'' under the act is the single most egregious provision in the law with respect to assaulting the property rights of individuals caught in the path of the ESA. Finally, I would be remiss if I did not mention that I do not regard this bill as perfect legislation, but instead as an excellent starting point for reform. Indeed, I would have liked for this legislation to include more substantive protections under the act for private property owners. Comprehensive private property rights legislation becoming law is far from guaranteed in this Congress and I believe that this legislation should have included a provision to compensate property owners for lost land value as a result of the act. Eighty-five percent of the land in Alabama is privately owned and the State is fourth in the Nation in candidate and listed species. These two statistics speak volumes for the concerns I have about protecting private property rights. In addition, I would have preferred that the legislation eliminate the ability of the Interior Department to list population segments of larger, healthy species. In Alabama, and across the country, a substantial percentage of new listings and proposed listings deal with arcane population segments like snuffbox mussels and shoal sprite snails. Preserving these population segments is less often about concerns for the larger species and more likely to be a convenient way to slow or impede commercial activity. Not surprisingly, the Fish and Wildlife Service was prepared last year to list the Alabama Sturgeon as a population segment after failing for years to establish it as a distinct species. However, we have a long way to go in this process and as part of the team effort to reform the ESA, I will work to further strengthen this legislation in concert with my colleagues here today.

Mr. SHELBY

Mr. SHELBY. Madam President, I send to the desk a modification of the amendment I have at the desk.

Mr. SHELBY. Madam President, I move to reconsider the vote.

Mr. SHELBY

Mr. SHELBY. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

Mr. SHELBY. Mr. President, I ask unanimous consent that the reading be dispensed with.

Mr. SHELBY. Mr. President, I have made statements in the past about the negative effects this bill will have on State laws and federalism in general. Tonight, I want to be more specific. My State of Alabama has a wrongful death statute whose damages are construed as only punitive in nature--yes, only punitive in nature. Under the product liability bill that we are considering today in the Senate, along with some of the proposed amendments to this bill, people who have committed or are guilty of a wrongful death in my State of Alabama, the damages available will be severely limited. In 1852, quite a while ago, the Alabama legislature passed what is known as the Alabama Homicide Act. This act permits a personal representative to recover damages for a death caused by a wrongful act, omission, or negligence. For the past 140 years, the Alabama Supreme Court has interpreted this statute as imposing punitive damages for any conduct which causes death. Alabama believes that all people have equal worth in our society, so the financial position of a person is not used as the measure of damages in wrongful death cases in my State. The entire focus of Alabama's wrongful death civil action is on the cause of the death. The amendment that I am offering tonight on behalf of myself and my colleague, Senator Heflin, will provide that in any civil action where the alleged harm to the claimants is death and the applicable State law only allows for punitive damages such as Alabama, the punitive damages provision of this bill will not apply--in other words, of the Federal statute if it were to pass. Mr. President, I believe there are legitimate reasons to exclude from coverage of this bill actions such as those brought under Alabama's wrongful death statute. I urge all of my colleagues to support this important amendment to my State.

Mr. SHELBY. Mr. President, the legislation that we are considering today has no place on the Senate floor or on the Senate calendar. This legislation is a blatant attempt to eliminate over 750 years of Anglo- American common law and to federalize over 200 years of State Tort law in this country. I want to return power to the States, not federalize important areas of State control. I thought that returning power to the States was a major part of the philosophical victory of the Republican party, my party, which occurred last fall. Mr. President, our current legal system, based on Anglo-American law, has its beginning in A.D. 1215 when the barons of England forced King John to sign the Magna Carta at Runnymede. The Magna Carta placed the King under the law and put limits on royal power. It also created remedies for many of the abuses that were occurring in England and gave legal protection to the English ruling class, which was later expanded to all Englishmen. Following the Magna Carta other English legal documents provided for additional legal protections for British citizens and the concept of rule of law. Ultimately, the Magna Carta has come to stand for the proposition that no man is above the law. English courts, after the Magna Carta, went on to develop a system of common law to provide legal protection to all men and women, the likes of which the world had never seen. Common law, including all Tort law, is basically judge-made law. For hundreds of years English judges decided cases which in turn formed the basis for future decisions. Under the Magna Carta, the later laws passed by the British Parliament, and the English common law, men were for the first time given certain basic rights in the legal system such as due process, jury trials, and the right to cross examine witnesses. Mr. President, this system of Anglo-American law was brought to our shores by English settlers and was adopted by our Founding Fathers when they wrote the United States Constitution--the single most important document in our land. Many of the provisions of the Magna Carta anticipate rights that were embedded in the U.S. Constitution and American law. Our Constitution created a Federal system of Government. Under this system, that so many in this body appear to want to do away with, the Federal Government has certain areas of responsibilities and the States have their areas of influence. As early as 1648 in the Maryland Act for the Liberties of the People, American colonists explicitly recognized that they were protected and governed by the common law. In 1774, the Declaration of Rights of the First Continental Congress stated that the ``Colonies are entitled to the common law of England.'' After the American Revolution, the colonies, and later the 13 States developed and adopted the common law to their own needs and circumstances. Common law, including Tort law, has remained solely a responsibility of the States for over 200 years. Mr. President, I would like to direct my colleagues' attention to the tenth amendment of the U.S. Constitution, the tenth amendment states that: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. For over 200 years, the States have had the responsibility and a duty, Mr. President, to develop tort law. They have done so. The bill we are considering today is the first step, I believe, in destroying the States' important role in developing and administering rules and laws for the redress and compensation for various torts, including product liability cases. In addition to eliminating over 750 years of Anglo-American common law, this bill violates the 10th amendment American federalism. Mr. President, the States have truly served as laboratories of democracy over the last 20 years in the area of tort reform. Virtually every State in the country has significantly reformed its legal system as it relates to product liability. Where there have been problems, the States have examined their legal systems and corrected the problems. As Supreme Court Justice Powell has stated, Our 50 States have developed a complicated and effective system of tort laws and where there have been problems, the States have acted to fix those problems. There is no current justification, I believe, Mr. President, for federalizing our Nation's tort system. Under the logic of this bill, if we carry it a step farther, if we federalize all product liability cases, why do we not federalize all civil and criminal statutes? The Federal Government can usurp all State power. We know that. Unfortunately, Mr. President, there are many in this body who see federalizing product liability law and other things as a first step to federalizing all legal matters. This bill will substantially disrupt and may end our country's State common law system. It will result in additional litigation in both State and Federal courts. Mr. President, I hope that my colleagues will think long and hard before they go down the path toward ending federalism as we know it and preempting all State common law. The Federal Government, including the Congress, I believe, cannot solve all of our society's ills by Federal statute. I find this legislation totally unacceptable, and I urge all my colleagues to vote and work against it. Amendment No. 621 to Amendment No. 617 (Purpose: To provide that a defendant may be liable for certain damages if the alleged harm to a claimant is death and certain damages are provided for under State law, and for other purposes)

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

Mr. SHELBY. Mr. President, I ask unanimous consent that this amendment be made a second-degree amendment to the Dole amendment.

Mr. SHELBY

Mr. SHELBY. Mr. President, on June 27-29, more than 5,000 individuals and businesses will gather in Birmingham for Alabama Business Connections '95. This event is the Alabama Minority Supplier Development Council's largest and most important of the year. It represents an opportunity for suppliers and purchasing personnel from majority and government organizations to network and exchange information. This important event also gives suppliers and purchasers the chance to develop mutually beneficial business opportunities. During the past 12 years, the Alabama Minority Supplier Development Council has represented a unique partnership of buyers and suppliers, serving as an important resource for identifying certified minority suppliers as well as a clearinghouse for business development news and purchasing information. Mr. President, the members of the Alabama Minority Supplier Development Council acknowledge that suppliers can provide quality goods and services. The board of directors, membership and staff are committed to promoting economic development opportunities for minority businesses, and I am proud to recognize them here in the Senate for all of their important work. I wish them the best for a successful event in June and congratulate them on more than a decade of service to the members of Alabama's business community.

Mr. SHELBY

Mr. SHELBY. Mr. President, today I am introducing the Prostate Cancer Diagnosis and Treatment Act of 1995. Prostate cancer is the leading cancer and the second leading cause of cancer death among American men. Over 215,000 Americans will be diagnosed with the disease this year and over 40,000 men will die from it. Despite recent advances in the early detection and treatment of prostate cancer, the number of cases and the number of deaths continue to rise. Prostate cancer is as common today in men as breast cancer is in women, and the death rates for the two diseases are similar as well. Over this decade, prostate cancer cases and deaths are expected to continue their rapid rise--with cases increasing by 37 percent and deaths by 90 percent between 1985 and 2000. Early detection has been greatly improved with the development of the prostate specific antigen [PSA] test--a simple and inexpensive blood test for the presence of prostate cancer. As a result, the American Urological Association and the American Cancer Society now recommend that men ago 50 and over get an annual screening with the PSA test. Treatment has been improved through new surgical techniques that remove the cancer without disastrous side effects, and through new drug therapy that can extend life expectancy and improve patient comfort for patients with advanced stage cancer. These improvements have meant the difference between life and death for many men. The ability to detect prostate cancer in the first stage of the disease has made it possible to surgically remove the cancer when it is still confined to the prostate. Over 70 percent of patients treated in this way never have a recurrence of the disease. Waiting until the second stage or later, which was necessary under previous techniques, greatly increases the risk that the cancer has spread, with small hope for a cure. I know how important it is to get screening and early treatment for prostate cancer--I am a prostate cancer survivor. I had a PSA test--I had a positive score--I had my prostate removed--and I am here to tell about it as a result. A number of my colleagues in this Chamber-- Senator Dole, Senator Stevens, among them--are here with us today because their prostate cancer was spotted early and treated effectively. General Schwarzkopf, the hero of the gulf war, is another man nearly felled by prostate cancer, but saved through screening and surgery. General Schwarzkopf has become a national spokesman for prostate cancer detection. General Schwarzkopf and all of us in Congress are lucky to have the kind of insurance coverage we do through the Military and Federal Employees Health Benefit plans and the access we have to the finest medical facilities and doctors at Walter Reed Hospital among other places. We can all be sure we get our annual PSA test and any treatment we may need. The tragedy is that 13 million American men who are at the highest risk for this disease do not have health insurance coverage for the best early detection methods and drug therapies. They do not have it because we, the Congress, have not seen fit to provide it for them through the Medicare and Veterans Health programs. Medicare covers the old diagnostic test but does not provide for an annual PSA test. The Veterans Health services could provide annual tests for their resident and in-patient populations, but rarely do the tests or the follow-on surgery. Both of these programs cover part of the hormonal drug therapy for treatment of advanced prostate cancer, but leave out the oral drug which is particularly effective when given in combination therapy. These omissions are particularly troubling because these programs cover the overwhelming majority of men who have the disease. Finally, it is remarkable that we have had these breakthroughs in detection and treatment given that we have so completely neglected funding for prostate cancer research. Prostate cancer is a disease that has a similar incidence and death rate to breast cancer a serious oversight that we should correct to increase the pace of research and develop conclusive evidence on what really works and does not work in treating prostate cancer. The Prostate Cancer Diagnosis and Treatment Act of 1995 would take three important steps to halt the progression of this disease. First, it would nearly double spending on research to develop more effective treatments of the disease. Second, it would make PSA tests available under the Medicare and Veterans Health programs. Third, it would extend Medicare and Veterans Health coverage for prostate cancer drugs to cover the advanced combination therapy including oral drugs that can significantly extend and improve the lives of prostate cancer victims. Mr. President, it is important that we increase our efforts to combat this deadly form of cancer and address these deficiencies in our Federal health coverage and research programs. I urge my colleagues to join me in sponsoring the legislation that could make a difference for thousands of men who might otherwise have suffered greatly or died an untimely death from prostate cancer.

Mr. SHELBY

Mr. SHELBY. I will agree to yielding back my time. I believe we will vote later on this.

Mr. SHELBY. Mr. President, the House rescinded $136,593,000 from buildings for which funds have been appropriated in the fund. A number of projects they included were inserted by the Senate, most, but not all have been authorized by the Senate Environment and Public Works Committee, but not the House Public Works Committee. The committee chose to rescind $241,011,000 from new construction and repair and alterations projects. Some of the projects the committee included have not been authorized by the Senate. Some are included because GSA has indicated savings as a result of last year's time out and review. Some have been canceled or delayed. We did not take all of the funds in some cases, nor did we take all of the projects GSA indicated where savings might be attained as a result of time out and review. We attempted to take Members concerns into account in making our decision. Our total cuts are significantly over the House and there will plenty of room to negotiate in conference. We might not agree, but this is a significant adjustment. I say to the Senate do not make it a political bidding war regarding projects. I have tried to be fair in this process as the Senator from Nebraska is aware. Should we follow the Senator from Nebraska and his process, in all fairness, should we not put all projects on the table. I have a list here which includes all of the new construction projects, repair and alteration projects, as well as, the time out and review savings the GSA has indicated can be saved. The project list is inclusive of projects where no construction has begun. I hope we will not get into this on the Senate floor. I believe a majority of my colleagues agrees with me as they did in the appropriations committee, so at the appropriate time I will move to table the Kerrey amendment.

Mr. SHELBY. We will yield our time back. Mr. President, I ask for the yeas and nays.

Mr. SHELBY. Mr. President, I yield 5 minutes to the Senator from Indiana.

Mr. SHELBY. Mr. President, the amendment, which is the second-degree amendment that I have offered, would basically say that all new construction projects under the General Services Administration, the Federal buildings fund, construction and repair projects, where no earth has been turned, no overt things have been done as far as repairs on the building as yet--in other words, nothing done--this would basically total 1.84 billion dollars' worth of projects in not every State but a lot of States in the Union, including my State of Alabama where we have a Federal courthouse ready to go with a $46 million projected cost--we have the list--would be knocked out of the appropriations bill. They would be gone. I will just list them basically. Montgomery, AL, courthouse, $46 million. That is the first one. Little Rock, AR, courthouse, $13 million; Bullhead City, AZ, FAA grant, $2,200,000; Nogales, AZ, Border Patrol headquarters, $2,998,000; Phoenix, AZ, courthouse, $121,890,000; Sierra Vista, AZ, magistrates office, $1 million; the Tucson, AZ, courthouse, $121.8 million; Sacramento, CA, courthouse, $142.9 million; San Francisco, CA, lease- purchase $9 million; San Francisco, CA, courthouse, $4 million; the Washington, DC, U.S. Secret Service headquarters, $113 million; and the list goes on and on. We have included in there Prince Georges/Montgomery County, MD, FDA consolidation, $284 million. It says that we are going to save this money, at least temporarily, until GSA says we are ready to go. As I said, it is $1.842 billion. I think the Senator from Nebraska will join me in this amendment. But I will leave that up to him. Mr. KERREY addressed the Chair.

Mr. SHELBY

Mr. SHELBY. Mr. President, credit availability is vital to the livelihood of every American. It is the fuel that drives personal financial, business, and economic growth in this country. Promoting greater credit availability should, therefore, be an important economic policy goal. I know that it is to me. For this reason, for the third Congress in a row, I am introducing comprehensive regulatory relief legislation aimed at reducing the burdens that drive up the cost of credit and hamper credit availability. Three years ago, the Federal Financial Institutions Examination Council released a study that found that the regulatory cost of compliance was as high as $17.5 billion a year. Mr. President, that was 3 years ago. While Senator Mack and I were successful in gaining some relief last year in the Community Development Financial Institutions and Regulatory Relief Act, regulatory initiatives continue to flood the pages of the Federal Register, inflating it to all-time highs. Mr. President, fighting Government regulation and regulatory burdens is not a one time battle; it is a constant battle. It is a war that never ends, but only ebbs. After months of comments and input from bankers and regulators, Senator Mack and I have returned once again to forge an ambitious comprehensive reform bill that promises long-overdue relief to an overburdened financial services industry. Like last year's bill, this year's bill targets laws and regulations that impose regulatory burdens which are extraneous to safety and soundness concerns and act to restrict rather than promote credit availability. The bill strikes out at the giants that hold down lending with excessive costs, like Truth-in-Lending and RESPA, Truth-in-Savings, the Community Reinvestment Act, and other overly burdensome laws whose legitimate central purpose has been lost in a sea of regulation. The bill streamlines or cuts duplicative and unnecessary reporting requirements, eliminates excessive compliance costs, and reforms laws that no longer make sense and cost the industry millions without any corresponding benefit to either the consumer or the health and stability of the banking system. Mr. President, an example of a law that may have had good intentions but does not make sense and has cost the banking industry about $400 million is the Truth-in-Savings Act. A law intended to prevent institutions from calculating interest on investible balances has become a leviathon of Broad, highly complex disclosure requirements that extend far beyond the original intent of the law. Consumer protection laws should do just that, Mr. President. Laws like Truth-in-Lending and Truth-in-Savings have become so complex that the actual benefits these laws confer on consumers are highly questionable. Another law consistently identified as one of the most burdensome and in need of review is the Community Reinvestment Act. CRA is seen as all stick resources to adequately comply with the law, they are susceptible to protests that promote meritless delay and result in extortive practices. Large banks with billions in assets have less difficulty diverting assets to achieve compliance under the law than does the small, community bank. The livelihood of small banks--under $250 million in assets--is by their very nature dependent upon reinvesting in their community. Mr. President, the costs on community banks are tangible and quantifiable, wile the benefits of imposing CRA compliance on community banks are illusive and questionable. If not properly reformed, CRA threatens to be an albatross of redtape and complexity with little or no way of gauging its benefits or success. Reducing regulatory burden and compliance costs on our financial institutions promotes credit availability, facilitates capital creation, and fuels our business, our communities, and our economy. Mr. President, our bill today represents a starting point. The process is open and I expect a great deal of dialogue on the core of our bill as introduced, as well as many other relief provisions that may be raised for inclusion in the process. Congressman Bereuter is introducing similar regulatory relief legislation in the House today. Mr. President, with the support of the House and Senate leadership and Banking Committee Chairmen D'Amato and Leach, I am confident that our regulatory relief legislation will gain the same broad bipartisan support it enjoyed last year, and I would urge my colleagues to support this bill.