Bob Smith

Mr. SMITH of New Hampshire

Mr. SMITH of New Hampshire. Mr. President, I am very pleased that the Senate is taking up today an important piece of legislation that will enhance our ability to protect the Nation's most valuable shoreline habitats. This bill, S. 835, the Estuary Habitat Restoration Partnership Act, is a great tribute, I think, to not only our leadership in the Senate but also to our late colleague, Senator John Chafee. I urge my colleagues to support this bill and move it forward quickly, to get it into law. S. 835 is an example of environmental policy based on partnership and cooperation--not on this top-down mandate, overburdensome Federal regulation, but a partnership and a cooperative effort. It shows you, when you have a partnership and have a cooperative effort and don't try to impose regulations, what you can do. This bill is a good example of that. It promotes working together in a partnership situation with the States, with local programs, and with the private sector. This bill will make it possible to restore 1 million acres of habitat with almost no cost to the taxpayer. Environmental success is what this is, and it is the kind of environmental success that I am very proud to support. This bill is yet one more of the many legacies of our friend and late colleague, Senator John Chafee of Rhode Island. He was the principal sponsor and a longtime champion of the estuary system in this country. Last October, under his chairmanship, the Committee on Environment and Public Works reported out S. 835 by a voice vote. For the past 5 months, his son, Senator Lincoln Chafee, has carried forward the effort in the Senate and helped me immensely to get where we are today with this legislation. I am grateful for his leadership. I know it was a special matter for him to lead on this issue and on this bill because of what his father had done on its behalf. So I am pleased to be a part of this effort, pleased as the chairman of the Environment and Public Works Committee to bring this matter to the Senate for final passage. To understand how important this act is for protecting the environment, one has to understand what estuaries are and how valuable they are to our society. An estuary is a bay, a gulf, a sound, or an inlet where fresh water from rivers and streams meet and mixes with saltwater from the ocean, or put simply, it is where the river meets the sea. Examples of estuaries are coastal marshes, coastal wetlands, maritime forests, sea grass, meadows, and river deltas. Estuaries represent some of the most environmentally and economically productive habitats in the entire world. Estuaries are critical for wildlife. Approximately 50 percent of the Nation's migratory songbirds are linked to coastal estuary habitat, while near 30 percent of North American waterfowl rely upon coastal estuary habitat for wintering grounds. Threatened and endangered species depend upon estuaries for their survival. Estuaries also play a major role in commercial and recreational fishing as well. Approximately 70 percent of the commercial fish catch, and 80 to 90 percent of recreational fish catch, depend in some way on estuaries. Obviously these fish swim up into those estuaries and spawn, and those small fish work their way back into the oceans. You may not realize it, but estuaries also contribute significantly to the quality of life that many of us enjoy as Americans. Over one- half of the entire population of the United States lives near a coastal area. Traditionally, a great majority of Americans visit estuaries every year to swim, to fish, to hunt, to dive, to bike, to learn, or just to view the beauty of the marshes and the wildlife. For many States, this tourism provides enormous economic benefit, and it does in New Hampshire, as well as almost every State in the Union. In fact, the coastal recreation and tourism industry is the second largest employer in the Nation serving 180 million Americans each year. These many attributes of estuaries are especially important to me because of the rich coastline of New Hampshire. We only have 18 or 19 miles of it, but it is rich. New Hampshire estuaries contribute to dynamic habitat, and they contribute to the beauty of the State as well as the economy. Recreational shell fishing alone in New Hampshire contributes an estimated $3 million annually to the State and local economy. New Hampshire is in the forefront of the national effort to identify and protect sensitive estuary habitats. The New Hampshire Great Bay, Little Bay and Hampton Harbor, and their tributary rivers joined the National Estuary Program in July 1995 as part of the New Hampshire Estuaries Project. The Great Bay estuary has a rich cultural history. Its beauty and resources attracted the Paleo Indians in the area nearly 6,000 years ago. It was also the site of a popular summer resort during the 1800s, as well as a shipyard. As a Senator from New Hampshire, I am proud to be involved in this historical and ecological resource, and to preserve it for future generations. What we do in environmental matters we should do not for the next election, and not for somebody's business bottom line, but for the next generation--for the generations of our grandchildren and their generations to come. That is why we make these decisions to preserve these estuaries so that 1,000 years from now our descendents can say: We can see an estuary because those guys stood up when it counted and they saved them for us. That is a great legacy. Unfortunately, though, many of the estuaries around the United States, including those in New Hampshire, have been harmed by excessive urbanization of surrounding areas. According to the EPA's National Water Quality Inventory, 38 percent of the surveyed estuary habitat is impaired. S. 835 is a tremendous step to establishing a much needed restoration program. What does S. 835 do? It does not duplicate any existing efforts, but instead it builds upon current restoration projects by establishing a community-driven, incentive-based program while expanding EPA's ability to provide grants for conservation management plans. It has a national strategy because a national strategy is vital in order to coordinate current and future restoration efforts among both Federal, State, and local programs. Sometimes estuaries have no State borders. They move across the borders of States and towns. We have a collaborative council to accomplish this goal. S. 835 establishes this council. It is chaired by the Secretary of the Army with the participation of the Under Secretary for Oceans and Atmosphere, the Department of Commerce, the Administrator of EPA, and the Secretary of Interior. It will be authorized to distribute $315 million over 5 years to community groups to implement restoration projects. It establishes criteria to select projects; for example, quantity and quality of the habitat to be restored; criteria to minimize the Federal share; criteria to address sources of pollution that would otherwise again impair the restored habitat; and, criteria that fosters the development of cost- effective and innovative technologies. This bill encourages local communities and the private sector to develop partnerships to implement restoration activities. Decisions of how to restore these estuaries are made by the local communities. Another key feature of the bill is that it ensures accountability through ongoing monitoring and evaluation. NOAA maintains a database of restoration projects. Information and lessons learned from one project can be incorporated into other restoration projects. The council will publish the biannual report to Congress detailing the progress made under the act. It allows Congress and the public to know about the successes and failures of the projects and strategies under this section. S. 835 includes important provisions dealing with the National Estuaries Program, the Chesapeake Bay Region Program, and the Long Island Sound. I know that these provisions have been of particular importance to Senators Warner and Lieberman, and no doubt they will be addressing the importance of these programs on the floor very soon. However, I want to acknowledge the important role that the National Estuaries Program has played in raising national awareness on the value of these habitats. The National Estuaries Program, established in 1988, demonstrates what we can accomplish when the Federal Government, the State government, and the local government work together in partnership without all of the friction and without all the confrontation. Participation in the program is voluntary, and it emphasizes watershed planning and community involvement. I have met with so many people at the local and State level on so many of these environmental projects who are knowledgeable, smart, and well-educated people who know these issues very well. They don't need to be dictated to by the Federal Government. To date, 28 conservation plans under this program have been prepared for designated estuaries. I am pleased that New Hampshire is in the process of developing its own conservation plan. Unfortunately, though, the program does not have sufficient resources to adequately address all habitat restoration. Until now, in fact, only the development of a plan could be funded--not their implementation. S. 835 will change that. This bill will increase the authorization for the program from $12 million to $25 million annually for 2001 and 2002. Let me close by saying that there is overwhelmingly bipartisan support for this bill. It represents an approach to environmental policy that should be the basis for solving environmental problems by dealing with these issues through cooperation, not confrontation. And that is what this bill is all about. Decisions that affect local communities are to be made by local communities. They use taxpayer dollars wisely and effectively. This bill represents the sixth report by the Environment and Public Works Committee since I became its chairman just a few months ago. I include also the reauthorization of the National Fish and Wildlife Foundation Establishment Act, and a wetlands bill in Louisiana. It is only the sixth in what I hope will be a long line of good, solid, strong, bipartisan environmental bills. We all breathe the same air. We all like to drink clean water. We all like to walk the land and to have that land be clean and to enjoy the wildlife. I have never been able to figure out why Democrats perhaps would like to do that more than Republicans, or vice versa. This is nonpartisan. This is bipartisan. This is good legislation, and many of these initiatives were very important to our beloved former colleague, John Chafee. I thank Senator Baucus and my other committee colleagues, as well as Senators Lott and Daschle, for helping us to continue the tradition of bipartisan action on environmental matters. That is so much a part of the legacy of John Chafee. I urge my colleagues to support its passage.

Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. SMITH of New Hampshire. I ask unanimous consent the amendment be agreed to, the bill be read the third time and passed, the motion to reconsider be laid upon the table, and that any additional statements be printed in the Record.

Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent that the Senate proceed to the consideration of Calendar No. 323, S. 835.

Mr. SMITH of New Hampshire

Mr. SMITH of New Hampshire. I further ask unanimous consent it be in order for the Budget Committee to file the budget resolution between the hours of 10 a.m. and 11 a.m. on Friday.

Mr. SMITH of New Hampshire. I further ask unanimous consent that the Senate proceed to the budget resolution at 9:30 a.m. on Tuesday, April 4, providing the report is available Saturday morning.

Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent when the Senate completes its business today, it adjourn until the hour of 12 noon on Monday, April 3. I further ask consent on Monday, immediately following the prayer, the Journal of proceedings be approved to date, the morning hour be deemed expired, the time for the two leaders be reserved for their use later in the day, and the Senate then begin a period of morning business with Senators permitted to speak for up to 10 minutes each, with the following exceptions: One hour under the control of Senator Bob Smith; 30 minutes under the control of Senator Brownback; 30 minutes under the control of Senator Craig or his designee from 3 to 3:30; and 2 hours under the control of Senator Durbin or his designee.

Mr. SMITH of New Hampshire

Mr. SMITH of New Hampshire. For the information of all Senators, the Senate will be in a period of morning business during the day on Monday. No votes will occur during Monday's session of the Senate. The Senate will begin the budget resolution on Tuesday. Therefore, votes may be expected during the day and into the evening on Tuesday. Members should expect late nights each session next week in an effort to conclude the budget resolution by the end of next week. The leader urges all Members to adjust their schedule accordingly.

Mr. SMITH of New Hampshire

Mr. SMITH of New Hampshire. Mr. President, I want to comment for a moment on some of the things that happened today. Yesterday, I introduced legislation to provide permanent residency to Elian Gonzalez because I wanted to try to diffuse what I think is a very volatile situation in south Florida. I believe Elian Gonzalez should be allowed to go to custody court and allow his family--all of his family from Cuba, not just Juan Gonzalez--to come here so they could be free from any encumbrances or any threats or hostility toward them by Fidel Castro. They can sit down as a family, the way a family should, and try to work out the fate of Elian Gonzalez. If that could not be worked out, that it go to custody court. Regretfully, we couldn't get enough people to support this action. So we have postponed any action. Some have objected and caused a series of delays which did not provide the opportunity for me to have a vote here today, which I regret. It is my sincere hope that the Attorney General over the next several days will not move to do something that I think would be not only silly but dangerous and not in the best interests of Elian Gonzalez--trying to drag this boy from his home in Miami and send him off to Cuba. I believe Senators should go on record and say how they feel about this. I have heard some say, I don't want to be involved in a custody battle. I don't either. That is not the job of a Senator. We are asking in this resolution, not to have a Senator interfere with a custody battle, but to allow a custody proceeding to occur. Right now, this is an immigration situation. Elian Gonzalez didn't come here the way most people immigrate to the United States or immigrate into the United States. He came here floating on a raft, picked up by fishermen after his mother died trying to get him here to freedom. He deserves his day in court. He deserves to be heard, like any child in America. I want that to happen worse than anything. I want all 100 Senators to speak on this. I hope that happens. I want to let Janet Reno, the Attorney General, know that I urge her to take the time to think this thing through, meet with Elian Gonzalez, talk with the family, and understand that it is in the best interests of this child that his family, all of his family, come here from Cuba--that is what my legislation does--on permanent residency status. They can go back anytime they want to. They are not provided citizenship. They can come here of their own free will without Castro's influence. They can make a decision about this little boy. That is the right thing to do. I want to acknowledge a statement today made by the Vice President of the United States, Al Gore, regarding Elian Gonzalez. He has today supported this action that I have advocated, along with Senator Mack and Senator Graham of Florida, to have permanent residency status for Elian Gonzalez and his family. I commend the Vice President for what he did. It was a very courageous action. He parted ways with his own administration to say that this is the right thing to do. You have to give credit where credit is due, and he gets all the credit in the world from me for having made that decision. I ask unanimous consent that his statement of March 30, today, regarding Elian Gonzalez, be printed in the Record.

Mr. SMITH of New Hampshire

Mr. SMITH of New Hampshire. On behalf of the leader, I ask unanimous consent that the Senate immediately proceed to executive session to consider the military nominations reported by the Armed Services Committee today. I further ask unanimous consent that the nominations be confirmed, the motion to reconsider be laid upon the table, any statements relating to the nominations be printed in the Record, the President be immediately notified of the Senate's action, and the Senate return to legislative session.

Mr. SMITH of New Hampshire

Mr. SMITH of New Hampshire. Mr. President, if there is no further business to come before the Senate, I now ask unanimous consent the Senate stand in adjournment under the previous order.

Mr. SMITH of New Hampshire

Mr. SMITH of New Hampshire. Mr. President, I rise today to introduce a bill entitled the ``Voluntary Medicare Prescription Drug Plan Act of 2000.'' This bill allows seniors to enroll in a new program under Medicare which will provide for prescription drug coverage. This is an issue about which, as you know, many seniors are very concerned. Seniors who join this plan would have a combined Part A and Part B deductible of $675, which would include all hospital, medical, and drug expenses. After the deductible is met, seniors would receive 50-percent coverage of their prescription drug costs up to $5,000. If a senior has $2,000 in expenses for prescription drugs, $1,000 of that would be paid for under this plan. I have spoken to senior groups and health care providers, both in Washington as well as in my State over the past several weeks, about this proposal. The response has been very enthusiastic. Seniors want a prescription drug benefit. Doctors and nurses understand the importance of providing coverage for seniors because of the expense of prescription drugs in this country. It would be a victory for seniors and for health care in this country if we could provide this coverage to them. I have had discussions with many of my colleagues in the Senate who are working on this very issue. We have all heard from our constituents about the importance of prescription drugs. Senators Breaux and Frist have included prescription drugs in their overall Medicare reform package. Senators Kennedy, Snowe, Wyden, Grams, and Jeffords all have proposed various plans that provide some level of prescription drug coverage in Medicare, and many others are working on separate proposals of their own. In a recent press conference, President Clinton and Senator Daschle outlined their goals for prescription drug coverage. Leaving the politics aside, the fact that elected leaders from both parties are looking at this issue of prescription drug coverage is good news for the senior citizens of America. I have talked with several of my Republican colleagues, and it is clear to me there is overwhelming support for allowing seniors to have this choice. The only question among us all is how we can responsibly structure such a program. I have heard from seniors in my State about what they are looking for in a prescription drug plan. First, they are concerned about the solvency of the Medicare program. They want a program that does not add some huge financial burden to the trust fund which will be passed on to their grandchildren. They do not want to increase the national debt, either. Yes, seniors are concerned about the national debt. Ask them the next time you speak to a seniors group. The President's proposal, as it is written, blows a $168 billion hole in the trust fund, threatening its solvency. Second, seniors do not want new premiums. My plan requires no premium hike for seniors. Zero. The President's plan requires a $51 annual premium increase. I will repeat that. Seniors do not want to blow a hole in the national debt. They do not want to inflate the debt. Yet the President's proposal adds $168 billion that is going to come out of that trust fund, threatening its solvency. And seniors do not want more premiums. My plan has no increase in premiums; the President's plan, $51--just to start--annual premium increase. The guiding principles of this plan, which may come as a shock to some of my colleagues on the other side of the aisle, are the same principles as those of the President and the distinguished minority leader for any prescription drug plan. I want to repeat the six principles the minority leader has introduced on behalf of the President. I am going to add three more to those six and make it even better. I do not know why we cannot have almost unanimous support for this piece of legislation. First of all, under the plan the Senate Democrats are committed to passing this year, there are six basic principles. I agree with them all. No. 1, it is voluntary. Medicare beneficiaries who now have dependable, affordable prescription drug coverage should have the option of keeping that coverage. No. 2, it is accessible to all beneficiaries. I agree with that. A hallmark of Medicare is that all beneficiaries, even those in rural or underserved communities, have access to dependable health care. It should be accessible to everybody. I agree with the second principle. No. 3, it is designed to provide meaningful protection and bargaining power for seniors. A Medicare drug benefit should assist seniors with the high cost of drugs and protect them against excessive, out-of- pocket expenses. I agree with that. No. 4, it should be affordable to all beneficiaries, and it should be affordable to the Medicare program itself. Medicare should contribute enough toward the prescription drug premium to make it affordable and attractive for all beneficiaries and to ensure the viability of the benefit. I agree with that. No. 5, administered using private-sector entities and competitive purchasing techniques. In other words, the program is administered by using private sector entities and competitive purchasing techniques. The management of the prescription drug benefit should mirror the practices employed by private insurers. Discounts should be achieved through competition, not through price controls or regulation. I agree with that. We are five for five. No. 6, consistent with broader Medicare reform, the addition of a Medicare drug benefit should be consistent with an overall plan to strengthen and modernize Medicare. Medicare will face the same demographic strain as Social Security when the baby boomer generation retires. So it is consistent with broader Medicare reform. I agree with that. There are six principles I can support. I would ask my colleagues on the other side of the aisle to join me now with three more principles I would add: No. 1, that the plan be revenue neutral to preserve and protect the financial integrity of the Medicare trust fund. In other words, it does not cost the Government any more money. No. 2, that the plan does not raise Medicare premiums. Their plan, $51 annually to seniors; my plan, zero. So no increase in premiums. And No. 3, that full benefits be provided, not in 2009, as the administration plan proposes, but in 2001, 8 years sooner. So my three principles--revenue neutral, do not raise the premiums, provide the benefits in 2001--those three principles enhance and strengthen the other six principles put forth by my colleagues on the other side of the aisle. My plan accomplishes all three of the principles I have outlined. Let me briefly explain how it works. A senior already enrolled in Medicare Parts A and B--already enrolled in Part A, hospital, and Part B, doctor--will have the option of choosing my new voluntary prescription drug plan. It is their option. Nobody is mandated; they choose. It will cover 50 percent of their prescription drug costs toward the first $5,000 worth of prescription drugs. If they buy $4,000 worth of drugs--$2,000 for prescription drugs; $2,000 is covered. How do we do this? How do we make it work? Medicare Part A--under the old system, the current system--has a $776 deductible. Medicare Part B has a $100 deductible. In other words, if you go to the doctor, the first $100 you pay for; if you go to the hospital, the first $776 you pay for; the rest, Medicare pays. That is a total of $876 you will have to pay. My new plan would create one new deductible, combining those two deductibles of Part A and Part B into one deductible of $675, which would apply to all hospital costs, all doctor visits, and prescription drugs--50 cents on the dollar up to $5,000. And the prescription drug costs apply to the deductible, so every dollar you pay for a prescription moves you forward to meet the deductible. Once the $675 deductible is met by the Medicare recipient, Medicare then will pay 50 percent of the cost toward the first $5,000 worth of drugs the senior purchases. However, the senior could not purchase a Medigap plan that would pay for the $675 deductible. This must be paid for by the senior. But if you have a Medigap plan now as a senior, you will not need it. As a result, seniors would save about $550 under Medigap plans if they traded their current Medigap plan for my new prescription drug plan. Again, it is their option. It is voluntary. Seniors could even use their $550 in savings to pay the $675 deductible. If you are a senior out there, and you have Part A, Part B, and you are paying $675 toward the deductible, and you have Medigap insurance of $550, you now can put the $550 toward the $675 to meet your deductible. So you are going to have $550 in savings. You can put that toward the $675, and you are already two-thirds of the way there. But how do you get the cost savings? As my colleagues are aware, according to the National Bipartisan Commission on the Future of Medicare, the Federal Government pays about $1,400 more per senior if the senior owns a Medigap plan that covers their Part A and Part B deductible. This, generally, is because of our overutilization of hospital and doctor visits by the senior. The savings result because Medicare will not have to pay this $1,400 per person per year out of the trust fund. As I mentioned, all hospital, physician, and prescription drug costs would count toward this $675 deductible. Once it was met, the senior would receive regular, above-the-deductible Medicare coverage, just as you get now. Or if you worked out the numbers and decided against my plan, then you would not have to select it; it is your choice. I believe the vast majority of seniors will benefit from this plan. In fact, every senior with a Medigap plan will definitely benefit. Any senior with a prescription drug expenditure of more than $15 a month will benefit. Today, the Medicare Part A and Part B deductible totals $876, which most seniors cover by an average $1,611 Medigap insurance premium. These estimates, as well as the estimate that the bill is budget neutral, come from Mr. Guy King, formerly chief actuary for the Health Care Financing Administration under President Clinton. I received a letter just this morning from Mr. King, from which I would like to quote: Dear Senator Smith: This is in response to your letter of March 9, 2000, asking for my analysis of legislation you intend to introduce in the Senate. The proposed legislation establishes a voluntary prescription drug benefit, the Medicare Prescription Drug Plan, under the Medicare program. Under the Medicare Prescription Drug Plan, the current Part A and Part B deductibles would be replaced by a single deductible of $675 which would also be applicable to the new prescription drug benefit. The Medicare program would pay fifty percent of the cost of prescription drugs, up to a maximum of $2,500 after satisfaction of the deductible. He goes on to describe it. Quoting further: As you requested, I performed an analysis of the proposed legislation. This analysis is based on Medicare and prescription drug data I obtained from the Health Care Financing Administration. My analysis indicates that the Medicare Prescription Drug Plan, as described above, would be cost-neutral to the Medicare program if it were made available on a voluntary basis to all beneficiaries except those also covered by Medicaid. It is signed by Guy King. Let me just conclude speaking on this bill by saying, the benefits in this plan are delivered by private companies and regional entities, such as pharmaceutical benefit managers. These entities would negotiate with large drug companies and provide the drugs to Medicare seniors. Finally, according to the actuaries who reviewed the legislation, there will be no adverse selection. Both the healthy and the sick will have an incentive to choose this plan. Everybody is in. There are many different methods of providing prescription drug coverage for seniors, but I urge my colleagues--I plead with my colleagues--to look to the revenue-neutral methods that fund this benefit by the elimination of waste in the present system. I urge my colleagues to resist the temptation to raise Medicare premiums on the people who can least afford it. I have vivid memories of seniors rocking Mr. Rostenkowski's car a few years ago when he decided to raise Medicare premiums. Let's look at it more specifically. The House's fiscal year 2001 budget--this is important--sets $40 billion aside for prescription drugs. In the Senate, we are expected to do a budget that is going to set aside $20 billion. We don't need either under my plan. We don't need any more money. We don't need $20 billion. We don't need $40 billion. We don't need $2 billion. We don't need any billions. Let's use the money for debt reduction or tax credits for the uninsured rather than providing for prescription drugs, when we could use my revenue-neutral prescription plan instead. I must say, in all candor, some of the deflections I have had put in my way on this issue by some in this body are disturbing. I will not get into details. I want people to listen and look at this plan. It is a good plan. I would like to have the opportunity to be able to talk about it in more detail with some of my colleagues, because it makes no sense to take $40 billion max, anywhere from $20 billion to $40 billion, and put it into this prescription plan when we don't need to. Let's put it on the debt or let's buy something else with it that is worthwhile. We don't need it. A neutral plan that does not raise premiums, that takes effect in 2001 is a good plan. It is a good idea. We need to implement it. I urge my colleagues to take a look at this bill. I ask unanimous consent that the letter from Mr. King be printed in the Record.

Mr. SMITH of New Hampshire

Mr. SMITH of New Hampshire. Mr. President, this bill refers to a matter that is on everyone's mind. I know the Senator from Nebraska has had some concerns on this. I rise to explain what this legislation does. I think timeliness is important. This is an urgent matter. I introduced this bill along with my colleagues from Florida, Senators Mack and Graham. I am pleased to have their support in introducing the bill. I am doing it today to correct an injustice. There is an injustice being committed, as we speak, by the Attorney General and the Immigration and Naturalization Service against Elian Gonzalez. I thank Senator Mack for his leadership in sponsoring a private relief bill to grant Elian Gonzalez citizenship. A grant of citizenship to Elian Gonzalez has the practical effect of removing the Elian Gonzalez controversy from the immigration law and places the controversy in the Florida courts for a custody proceeding. This bill today does not grant Elian Gonzalez citizenship. Again, I am doing this with the full support of Senator Mack and Senator Graham. This grants what is called family permanent residency to the family of Elian Gonzalez--that would be Elian, Elian's father in Cuba, Elian's father's current wife in Cuba, Elian's father's son in Cuba or child in Cuba, Elian's two grandmothers and one grandfather, all of them--so they can now come to America, sit down as a family and resolve this matter. If they have to go to custody court, it takes it out of immigration and puts it into the custody court. This does not grant citizenship. It does not interfere in any way other than to say, let's do it in a custody matter, the same way as any other 6-year-old boy would have to do. Permanent residency status will settle the status of Elian Gonzalez under immigration and nationality law and leave the case to be resolved in the Florida State courts in a custody matter, not an immigration matter. Some ask: What is the difference between permanent residency and citizenship? Why are they doing this as opposed to citizenship? Frankly, a lot of my colleagues have expressed concern about citizenship. We want to make it palatable because of the confrontation that is beginning to brew now and may come to a head as early as tomorrow morning where we have a deadline of 9 a.m., where literally this boy could be dragged kicking and screaming from the arms of his uncle, put on a plane, and sent to Havana. Do we want to see that in America tomorrow? Do we want to see that? That is a confrontation I don't want to see. It is not called for. We don't have to let it happen. This Senate could act today, but under the rules, we may have to act on Tuesday or Wednesday, if it is delayed. Apparently, some have indicated they want to delay it. I wish to make it clear, it could be acted on if there weren't delays being called for. Permanent residency status would make Elian Gonzalez a resident alien. Resident aliens don't have the privileges of citizenship. They are not allowed to vote and can be deported for committing a crime. Their status is as a resident alien, subject to Federal laws regarding deportation provisions. A citizenship bill would grant the individual all the rights of citizenship: voting rights, no deportation, and all other rights associated with being a citizen. Do I support that? I happen to support that. I would be glad to give Elian Gonzalez citizenship. I know a majority of my colleagues do not. I am looking out not for what Bob Smith wants to do but I want to do what is right for Elian Gonzalez. I want Elian to have his day in court as any other child would have in a custody matter where relatives were trying to determine who should have custody. At 4 p.m. today, Lazaro Gonzalez, his uncle, Elian's uncle in Miami, is going to meet with representatives of the INS. They are going to ask Lazaro, in this meeting at 4 o'clock, to give up all rights to this boy, all rights to keep the boy in the country pending a possible appeal to the U.S. Supreme Court. If Lazaro Gonzalez says, ``No, I will not give up those rights,'' then as early as 9 a.m. tomorrow, Elian Gonzalez's parole status will be revoked and the boy could be sent back to Cuba without Elian's appeal being heard by the Eleventh Circuit Court of Appeals. Very seldom do we come down on the floor with an issue as urgent as this. This is an outrage. This is urgent. I have heard some people say: We don't want to vote on this thing. We should not have to vote on this. We don't want to deal with it. It is too hot to handle. We are not going to vote on this. Whatever way they vote, I am not trying to tell Senators how to vote. I am asking for a vote. I think the Senate should say to the United States of America, to Fidel Castro, and to the Cuban American community, that we don't want to see this confrontation--and frankly, to Janet Reno--at 9 a.m. tomorrow or 9 a.m. on Friday or 2 o'clock on Saturday or Sunday or next week or next month. I don't want to see on my television screen pictures of Elian Gonzalez being dragged from his home in Miami and placed on that airplane crying and screaming and kicking. I don't want to see that. Not only do I not want it to happen, I don't want to see it happen, either. It doesn't have to happen. We can stop it. But if we wait and we delay and delay, and we don't send this message to the Attorney General that we mean business, it will happen. She has backed the family into a corner. Why, I will never know, but she has. We can stop it right here. We can stop it. I want my colleagues to know that if we don't vote and this happens, then it is on our conscience. We can stop this; we have the capacity to do it. The INS and Justice Department to this day have not spoken to Elian Gonzalez. Isn't it interesting? I spoke to him. I met with him for 2 hours. Diane Sawyer has spoken to him. She spoke to him. Senator Bob Smith spoke to him. He is available. But Janet Reno can't speak to him. Do you know why? He doesn't have any rights. I say to anybody out there who has a 6-year-old child--and I have had three in my time, but they are long past 6 now, and they were pretty smart--at 6 years old, you know what is going on. Do you know what happened to this little boy? I bet it didn't happen to too many boys anywhere in the world. He saw his mother die, slip under the waves and drown. The last words that came out of her mouth to the other survivors were: Please get Elian to America. That is my dying wish. He didn't come here on a yacht. He wasn't escorted in some rich boat somewhere and brought to the shores and kidnapped. He was found drifting at sea for 3 days, surrounded by sharks. He survived, and his mother wanted him to be here. His mother had custody. She died. She can't speak for him. Do you know what? If she had lived--this is the irony--this would not be before the Senate. It would not be before the INS. They would have 13 months to work this out. He would be allowed to stay. So because his mother died, Elian is now being punished. So Diane Sawyer can talk to him, Bob Smith can talk to him, but the Attorney General can't be bothered with it because Elian has no rights. Are we in the Senate going to stand by and tolerate that? Do we want that on our conscience? I hope not. We need a vote on Senator Mack's bill for citizenship, if you wish, or on my bill on permanent residency status, if you wish. It doesn't matter to me. I want to have the vote on what we can get the most votes on so we can win, so that Elian wins, so that the process wins. This is a little boy we are talking about, who endured more than most children would ever endure collectively throughout the world. I hear all the stuff about it is a family matter. Do you know what? It is a family matter, and we make it a family matter if we pass this resolution because then the family can come here from Cuba, if they care about this little boy. No restraints, no restrictions. Just come and sit down with Elian's family here in America, with the Cuban family, and work it out. If you can't work it out, then go to custody court in Florida, where this matter should be played out. Without this vote--and I will repeat it for clarity--if we don't take a vote on this, Elian Gonzalez likely will be dragged kicking and screaming from the arms of his Uncle Lazaro and sent off to Cuba. Without this vote, that will happen, most likely. Or another alternative--perhaps worse--is violence, because people are up in arms about this, and they have a right to be. They have been very restrained. I am proud of the Cuban American community for the way they have conducted themselves in this matter. But we don't need to let this kind of confrontation happen. Do you remember Waco? Janet Reno is doing the same thing again. So we need a vote. Now, if we vote and we vote no, at least you were heard; you are on record. The American people can say, Senator Smith, or Senator so and so, this is how you voted. We heard you and you voted however you voted; we know how you felt about it. At least have the courage to cast your vote on this matter. My legislation grants Elian's family in Cuba permanent residency status. For the record, it includes Juan Miguel Gonzalez, Elian's father, for permanent residency status in America; Nelsy Carmenate, Juan Miguel's wife; Jianny Gonzalez, Juan Miguel Gonzalez's son; Mariella Quintana, Elian's paternal grandmother; Raquel Rodriguez, Elian's maternal grandmother; and Juan Gonzalez, Elian's grandfather. It grants all of them permanent residency. Does it mean that if they come to America, they have to stay? No. But it means if you care about Elian, then you have to come to America and talk to the family here. I have been told by members of Elian's extended family that Juan Miguel Gonzalez, Elian's father, had expressed an interest in coming to the U.S. a few months before Elian was supposed to arrive. The cold war is over, they say. It is over every place, I guess, but in the Senate because we want to say that Elian doesn't have any rights and we want to let Fidel Castro dictate what happens. Why would we want to let Fidel Castro determine the fate of Elian Gonzalez? Let Juan Gonzalez come here. If Castro cares, let the Gonzalez family come here. We are not going to keep them. They can stay if they want and they can go home if they want. We just want them to come and meet with the family here in Miami. I am deeply concerned about this arbitrary deadline. I repeat it again for emphasis: I am very concerned about this 9 a.m. deadline. I am very concerned that such a deadline would be imposed because it is inflammatory to remove this parole status of Elian Gonzalez. The goal in introducing this bill is to get the Justice Department and the INS out of the case and turn it over to the Florida courts and make it a case for custody, so that any 6-year-old boy--if you think of America today, there are custody cases going on right now as we speak. And to say this child doesn't have any rights--how about a child abuse case? Children are interviewed by psychiatrists and psychologists all the time under allegations of child abuse. In custody battles and divorces, they hear from children in custody battles. They are heard every day. Yet Elian can't be heard because of this decision--a regrettable decision--by the Attorney General. I am going to end with a plea to the Attorney General: Please remove the arbitrary 9 a.m. deadline. Let the courts hear Elian Gonzalez's appeal. This is America. We have courts to resolve custody issues. It is not an immigration issue. He didn't immigrate here. He didn't immigrate into this country. He didn't emigrate from Cuba. He left Cuba. He wanted to get out of there and so did his mother. His mother died, and you are punishing him because she died. The other two people who survived--and I met with them as well--are adults, and they are here for 13 months. They are here. No problem. But Elian doesn't have any rights. Find a place in the law that says there is any age limit. At what age does he have rights? Is it 6, 7, 8, 9, 13, or 14? Find it in the law, Madam Attorney General. It is not in there. We have courts to resolve these matters. Let the Eleventh Circuit Court of Appeals hear Elian's case before you attempt to send him back to Castro's open arms. Don't make the 6-year-old boy be paraded through the streets of Havana by Fidel Castro. Please, remove the arbitrary deadline. Let the Senate be heard. We will be heard, I hope, as early as Tuesday, perhaps Wednesday or Thursday--whenever we can work this through. I appreciate the cooperation of the majority leader, who has been very helpful in this matter. I am grateful for that. But there are certain things he can't control. Senators have rights to delay, and that is what is happening. Please, I say to the Attorney General, don't try to impose that deadline. Remove it and let reason prevail.

Mr. SMITH of New Hampshire. Mr. President, I now ask for the second reading and, on behalf of the minority, I object to my own request.

Mr. SMITH of New Hampshire. Mr. President, I rise for the purpose of introducing another bill that I send to the desk and ask that it be read for the first time.

Mr. SMITH of New Hampshire

Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SMITH of New Hampshire. I thank the Chair. (The remarks of Mr. Smith of New Hampshire pertaining to the introduction of S. 2314 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. SMITH of New Hampshire

Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session of the Senate on Wednesday, March 29, 2000, for hearings on the nomination of Elizabeth Michelle Andrews Smith.

Mr. SMITH of New Hampshire

Mr. SMITH of New Hampshire. Mr. President, on behalf of the leader, I ask unanimous consent that, notwithstanding rule XXII, the following Senators be recognized for debate on the pending flag desecration legislation for the designated times, and following the use for yielding back of time, the joint resolution be read the third time and a vote on passage occur, all without any intervening action or debate. Those Senators are as follows: Senator Byrd for up to 60 minutes; Senator Leahy for up to 60 minutes; Senator Hatch for 60 minutes; Senator Daschle for up to 15 minutes; Senator Lott for the final 15 minutes.

Mr. SMITH of New Hampshire

Mr. SMITH of New Hampshire. Mr. President, I rise today to introduce a bill entitled the ``Voluntary Medicare Prescription Drug Plan Act of 2000.'' This bill allows seniors to enroll in a new program under Medicare which will provide for prescription drug coverage. This is an issue about which, as you know, many seniors are very concerned. Seniors who join this plan would have a combined Part A and Part B deductible of $675, which would include all hospital, medical, and drug expenses. After the deductible is met, seniors would receive 50-percent coverage of their prescription drug costs up to $5,000. If a senior has $2,000 in expenses for prescription drugs, $1,000 of that would be paid for under this plan. I have spoken to senior groups and health care providers, both in Washington as well as in my State over the past several weeks, about this proposal. The response has been very enthusiastic. Seniors want a prescription drug benefit. Doctors and nurses understand the importance of providing coverage for seniors because of the expense of prescription drugs in this country. It would be a victory for seniors and for health care in this country if we could provide this coverage to them. I have had discussions with many of my colleagues in the Senate who are working on this very issue. We have all heard from our constituents about the importance of prescription drugs. Senators Breaux and Frist have included prescription drugs in their overall Medicare reform package. Senators Kennedy, Snowe, Wyden, Grams, and Jeffords all have proposed various plans that provide some level of prescription drug coverage in Medicare, and many others are working on separate proposals of their own. In a recent press conference, President Clinton and Senator Daschle outlined their goals for prescription drug coverage. Leaving the politics aside, the fact that elected leaders from both parties are looking at this issue of prescription drug coverage is good news for the senior citizens of America. I have talked with several of my Republican colleagues, and it is clear to me there is overwhelming support for allowing seniors to have this choice. The only question among us all is how we can responsibly structure such a program. I have heard from seniors in my State about what they are looking for in a prescription drug plan. First, they are concerned about the solvency of the Medicare program. They want a program that does not add some huge financial burden to the trust fund which will be passed on to their grandchildren. They do not want to increase the national debt, either. Yes, seniors are concerned about the national debt. Ask them the next time you speak to a seniors group. The President's proposal, as it is written, blows a $168 billion hole in the trust fund, threatening its solvency. Second, seniors do not want new premiums. My plan requires no premium hike for seniors. Zero. The President's plan requires a $51 annual premium increase. I will repeat that. Seniors do not want to blow a hole in the national debt. They do not want to inflate the debt. Yet the President's proposal adds $168 billion that is going to come out of that trust fund, threatening its solvency. And seniors do not want more premiums. My plan has no increase in premiums; the President's plan, $51--just to start--annual premium increase. The guiding principles of this plan, which may come as a shock to some of my colleagues on the other side of the aisle, are the same principles as those of the President and the distinguished minority leader for any prescription drug plan. I want to repeat the six principles the minority leader has introduced on behalf of the President. I am going to add three more to those six and make it even better. I do not know why we cannot have almost unanimous support for this piece of legislation. First of all, under the plan the Senate Democrats are committed to passing this year, there are six basic principles. I agree with them all. No. 1, it is voluntary. Medicare beneficiaries who now have dependable, affordable prescription drug coverage should have the option of keeping that coverage. No. 2, it is accessible to all beneficiaries. I agree with that. A hallmark of Medicare is that all beneficiaries, even those in rural or underserved communities, have access to dependable health care. It should be accessible to everybody. I agree with the second principle. No. 3, it is designed to provide meaningful protection and bargaining power for seniors. A Medicare drug benefit should assist seniors with the high cost of drugs and protect them against excessive, out-of- pocket expenses. I agree with that. No. 4, it should be affordable to all beneficiaries, and it should be affordable to the Medicare program itself. Medicare should contribute enough toward the prescription drug premium to make it affordable and attractive for all beneficiaries and to ensure the viability of the benefit. I agree with that. No. 5, administered using private-sector entities and competitive purchasing techniques. In other words, the program is administered by using private sector entities and competitive purchasing techniques. The management of the prescription drug benefit should mirror the practices employed by private insurers. Discounts should be achieved through competition, not through price controls or regulation. I agree with that. We are five for five. No. 6, consistent with broader Medicare reform, the addition of a Medicare drug benefit should be consistent with an overall plan to strengthen and modernize Medicare. Medicare will face the same demographic strain as Social Security when the baby boomer generation retires. So it is consistent with broader Medicare reform. I agree with that. There are six principles I can support. I would ask my colleagues on the other side of the aisle to join me now with three more principles I would add: No. 1, that the plan be revenue neutral to preserve and protect the financial integrity of the Medicare trust fund. In other words, it does not cost the Government any more money. No. 2, that the plan does not raise Medicare premiums. Their plan, $51 annually to seniors; my plan, zero. So no increase in premiums. And No. 3, that full benefits be provided, not in 2009, as the administration plan proposes, but in 2001, 8 years sooner. So my three principles--revenue neutral, do not raise the premiums, provide the benefits in 2001--those three principles enhance and strengthen the other six principles put forth by my colleagues on the other side of the aisle. My plan accomplishes all three of the principles I have outlined. Let me briefly explain how it works. A senior already enrolled in Medicare Parts A and B--already enrolled in Part A, hospital, and Part B, doctor--will have the option of choosing my new voluntary prescription drug plan. It is their option. Nobody is mandated; they choose. It will cover 50 percent of their prescription drug costs toward the first $5,000 worth of prescription drugs. If they buy $4,000 worth of drugs--$2,000 for prescription drugs; $2,000 is covered. How do we do this? How do we make it work? Medicare Part A--under the old system, the current system--has a $776 deductible. Medicare Part B has a $100 deductible. In other words, if you go to the doctor, the first $100 you pay for; if you go to the hospital, the first $776 you pay for; the rest, Medicare pays. That is a total of $876 you will have to pay. My new plan would create one new deductible, combining those two deductibles of Part A and Part B into one deductible of $675, which would apply to all hospital costs, all doctor visits, and prescription drugs--50 cents on the dollar up to $5,000. And the prescription drug costs apply to the deductible, so every dollar you pay for a prescription moves you forward to meet the deductible. Once the $675 deductible is met by the Medicare recipient, Medicare then will pay 50 percent of the cost toward the first $5,000 worth of drugs the senior purchases. However, the senior could not purchase a Medigap plan that would pay for the $675 deductible. This must be paid for by the senior. But if you have a Medigap plan now as a senior, you will not need it. As a result, seniors would save about $550 under Medigap plans if they traded their current Medigap plan for my new prescription drug plan. Again, it is their option. It is voluntary. Seniors could even use their $550 in savings to pay the $675 deductible. If you are a senior out there, and you have Part A, Part B, and you are paying $675 toward the deductible, and you have Medigap insurance of $550, you now can put the $550 toward the $675 to meet your deductible. So you are going to have $550 in savings. You can put that toward the $675, and you are already two-thirds of the way there. But how do you get the cost savings? As my colleagues are aware, according to the National Bipartisan Commission on the Future of Medicare, the Federal Government pays about $1,400 more per senior if the senior owns a Medigap plan that covers their Part A and Part B deductible. This, generally, is because of our overutilization of hospital and doctor visits by the senior. The savings result because Medicare will not have to pay this $1,400 per person per year out of the trust fund. As I mentioned, all hospital, physician, and prescription drug costs would count toward this $675 deductible. Once it was met, the senior would receive regular, above-the-deductible Medicare coverage, just as you get now. Or if you worked out the numbers and decided against my plan, then you would not have to select it; it is your choice. I believe the vast majority of seniors will benefit from this plan. In fact, every senior with a Medigap plan will definitely benefit. Any senior with a prescription drug expenditure of more than $15 a month will benefit. Today, the Medicare Part A and Part B deductible totals $876, which most seniors cover by an average $1,611 Medigap insurance premium. These estimates, as well as the estimate that the bill is budget neutral, come from Mr. Guy King, formerly chief actuary for the Health Care Financing Administration under President Clinton. I received a letter just this morning from Mr. King, from which I would like to quote: Dear Senator Smith: This is in response to your letter of March 9, 2000, asking for my analysis of legislation you intend to introduce in the Senate. The proposed legislation establishes a voluntary prescription drug benefit, the Medicare Prescription Drug Plan, under the Medicare program. Under the Medicare Prescription Drug Plan, the current Part A and Part B deductibles would be replaced by a single deductible of $675 which would also be applicable to the new prescription drug benefit. The Medicare program would pay fifty percent of the cost of prescription drugs, up to a maximum of $2,500 after satisfaction of the deductible. He goes on to describe it. Quoting further: As you requested, I performed an analysis of the proposed legislation. This analysis is based on Medicare and prescription drug data I obtained from the Health Care Financing Administration. My analysis indicates that the Medicare Prescription Drug Plan, as described above, would be cost-neutral to the Medicare program if it were made available on a voluntary basis to all beneficiaries except those also covered by Medicaid. It is signed by Guy King. Let me just conclude speaking on this bill by saying, the benefits in this plan are delivered by private companies and regional entities, such as pharmaceutical benefit managers. These entities would negotiate with large drug companies and provide the drugs to Medicare seniors. Finally, according to the actuaries who reviewed the legislation, there will be no adverse selection. Both the healthy and the sick will have an incentive to choose this plan. Everybody is in. There are many different methods of providing prescription drug coverage for seniors, but I urge my colleagues--I plead with my colleagues--to look to the revenue-neutral methods that fund this benefit by the elimination of waste in the present system. I urge my colleagues to resist the temptation to raise Medicare premiums on the people who can least afford it. I have vivid memories of seniors rocking Mr. Rostenkowski's car a few years ago when he decided to raise Medicare premiums. Let's look at it more specifically. The House's fiscal year 2001 budget--this is important--sets $40 billion aside for prescription drugs. In the Senate, we are expected to do a budget that is going to set aside $20 billion. We don't need either under my plan. We don't need any more money. We don't need $20 billion. We don't need $40 billion. We don't need $2 billion. We don't need any billions. Let's use the money for debt reduction or tax credits for the uninsured rather than providing for prescription drugs, when we could use my revenue-neutral prescription plan instead. I must say, in all candor, some of the deflections I have had put in my way on this issue by some in this body are disturbing. I will not get into details. I want people to listen and look at this plan. It is a good plan. I would like to have the opportunity to be able to talk about it in more detail with some of my colleagues, because it makes no sense to take $40 billion max, anywhere from $20 billion to $40 billion, and put it into this prescription plan when we don't need to. Let's put it on the debt or let's buy something else with it that is worthwhile. We don't need it. A neutral plan that does not raise premiums, that takes effect in 2001 is a good plan. It is a good idea. We need to implement it. I urge my colleagues to take a look at this bill. I ask unanimous consent that the letter from Mr. King be printed in the Record.

Mr. SMITH of New Hampshire

Mr. SMITH of New Hampshire. Mr. President, this is one of those issues that is very emotional. We have people on both sides who truly have the same goals. We believe alike--that those who burn the flag or desecrate the flag in any way are despicable people for whom we should have no sympathy. I say up front, before I make my remarks, that I certainly have the deepest respect for all of my colleagues who believe that we do not need a constitutional amendment, especially Senator McConnell for whom I have the greatest respect. I think we need to look very carefully at this issue. The Constitution has been amended. Actually, it has been amended 27 times-- not 17--once with the first 10 amendments, of course, and 17 times later. When it was amended, it was amended to clarify, to make clear. That is why we have an amendment process. That is why the founders put it in there. I do not think the constitutional Republic will tremble, shake, and fall because we decide to deal with an issue such as flag desecration with an amendment. That seems to be the gist of what we are hearing, perhaps in an overly legalistic argument that somehow the constitutional Republic will have acted irresponsibly to pass an amendment to the Constitution which would stop the desecration of the flag. I am an original cosponsor of the constitutional amendment introduced by Senator Hatch, S.J. Res. 14. I am proud to be a cosponsor of that amendment. The act of the desecration of the U.S. flag is an aggressive and a provocative act. It is also an act of violence against a symbol of America, our flag. Even more disturbing, it is an act of violence against our country's values and principles. The Constitution guarantees freedom. There is no question about it. It guarantees freedom of speech. But it also seeks to ensure, in the words of the Preamble, ``domestic tranquility.'' Many Americans have given their lives to protect this country as symbolized by that flag. My own family, as thousands of other families, endured the same thing. My dad died in World War II, and my family has that flag. It is a very important item in our home, as it is in Senator McConnell's home when he mentioned his father. I believe the flag deserves the constitutional protection because it is more than just a flag. It is more than just a symbol. I use the example of a $5 bill which I happen to have in my hand. If this is merely a symbol and has no other meaning, then I suppose I could ask millions of Americans to send me $5 bills and I will be happy to send them back plain pieces of paper because it is just paper. This is paper, therefore it is a symbol, and it doesn't have any meaning. So I can take all these pieces of paper and send them back to you in return for $5 bills. If anybody does choose to do this, I will be happy to provide it to some charity. I am not looking for $5 bills to be mailed to me. There is something beyond the meaning of just this piece of paper on this $5 bill, and there is something beyond the meaning of just a piece of cloth with the flag of the United States. Some people believe outlawing the desecration, which this amendment would authorize Congress to do, will lead somehow to the destruction of freedom. I disagree. Our Constitution was carefully crafted to protect our freedoms, not to diminish them. It also was crafted to promote responsibility. We are stepping on very dangerous ground when we allow reckless behavior such as flag desecration, whether burning, trampling, or whatever the desecration may be. This Constitution has served the test of time very well. It has been amended on 27 occasions. Interestingly enough, the first ten amendments, the Bill of Rights, passed shortly after the Constitution itself was passed. Why? Because they wanted to clarify. They didn't want anybody to misunderstand that we needed to have certain basic freedoms such as the freedom of speech, freedom of religion; the second amendment, the right to keep and bear arms, and so forth. Oftentimes in the debates on the floor of the Senate many of my colleagues pick and choose which amendments they choose to support and which they choose to ignore. It is all the Constitution. Under our discussion, I don't think the Supreme Court has more power than the people. If we were to vote today or tomorrow or the next day on this constitutional amendment on flag desecration, it goes to the people. It goes to the State legislatures. We are not making a final judgment. This is a constitutional process. It was very carefully laid out by the founders so that amendments would be very difficult to pass. If the American people support Congress if it passes, then we will have an amendment to the Constitution, No. 28. If they don't, it will not happen. All we are asking is the opportunity to let the people make the decision. Amending the Constitution is serious, but a simple statute is not enough. We tried that and the Court struck down the statute. A little bit of history on the legal history of flag burning is relevant. Over the years, Congress and the States have recognized the devotion our diverse people have for the flag and they have enacted statutes over the years that both promote respect for the flag and protect the flag from desecration. In the Texas v. Johnson case in 1989, by 5-4 vote, referred to earlier in the debate, the Supreme Court overturned a conviction of Gregory Lee Johnson who desecrated an American flag. Johnson burned an American flag at the 1984 Republican National Convention. A fellow protester had taken a flag from a flagpole and had given the flag to Johnson. At Dallas City Hall, Johnson unfurled the flag, poured kerosene on it and burned it. That is not speech, I say in all humbleness, candor, and with respect to my colleagues. That is not speech. That is an action. That is a direct action of desecrating the symbol of America. While the flag burned, protesters chanted ``America, the red white and blue, we spit on you.'' A few moments ago, my colleague from Utah, Senator Bennett, was saying he didn't know whether we would be able to determine whether or not somebody who takes the flag with respect and disposes of it the way we are supposed to dispose of it under law --burning it in a respectful way--whether there would be any confusion. I do not think there is any confusion between that act and what I just referred to, ``America, the red white and blue, we spit on you,'' when the flag was torn down from a flagpole and kerosene was poured on it. I don't know why anybody would be confused by that. Johnson was convicted of desecration of a venerated object, in violation of section 42.09 of the Texas Penal Code which, among other things, made illegal the intentional or knowing desecration of a national flag. The Court held the government's interest did not outweigh the interest of the flag burner. The act was not oral or written political speech; it was conduct. It was conduct, not speech. There is a difference. Justice Rehnquist, for himself and Justices White and O'Connor, stated in dissent: For more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning in the way respondent Johnson did here. The constitutional amendment would enable Congress to punish the next flag burner or the next flag desecrator. In 1989, Congress enacted a fairly neutral statute, the Flag Protection Act of 1989, with an exception for the disposal of worn or soiled flags as a response to the Johnson decision. Based on the new rule announced in Johnson, the Supreme Court struck down the statute by a 5-4 vote in United States v. Eichman in 1990. S.J. Res. 14 would restore the traditional balance to the Court's first amendment interpretation. That is all it does. Only a constitutional amendment can restore the traditional balance between a society's interest and the actor's interest concerning the flag. The first amendment prohibits abridgement of freedom of speech. There is always a balancing of society's interest with the individual's interest in expression. A few examples have been used many times on the floor in debate. Here is a good example: Can you yell ``fire'' in a crowded theater? Could anyone yell something out now? You would be removed if you were in the galleries making a loud comment that disrupted the proceedings. You would be removed. There are limits on speech. It is simply incorrect to say there are no limits to free speech. There are limits to free speech, and it has been held as being constitutional. ``Fire'' in a crowded theater was held to be unconstitutional in Schenk v. U.S. in 1919. There is no constitutional right to disclose State secrets. Some have gotten away with it, but we don't have the constitutional right to go out to the media and announce all the national secrets that we have access to as Senators, along with many individuals who work for the U.S. Government who have access to U.S. secrets. They don't go out and hold press conferences, nor do they tell our enemies what those secrets are. There is not a constitutional right to disclose those secrets. There is no constitutional right to defame or libel a person's character. That was upheld in Gertz v. Welch. There is no constitutional right to engage in partisan political activity in working for the Federal Government. There is no constitutional right to commercially promote promiscuous activity by minors. The American flag has not been given that protection by the Supreme Court. Congress has a compelling interest in protecting the flag. Congress needs to preserve the values embodied by the flag--liberty, equality, freedom, and justice for all. The flag enhances national unity and our bond to one another in our aspiration for national unity. If we read history about the fall of the Roman Empire, it is when Rome lost the glue that held it together, when they became too big, they became so splintered and there was no unity, no cohesion, that they lost their symbol of what the Roman Empire meant. When we lose the symbol of what we are about, we will lose this country. The flag enhances national unity. It enhances the bond. Even if we are wrong, even if we do not need the amendment--and I do not make that case--even if perhaps Senator McConnell and others are correct that we do not need this amendment, so what? We err on the side of caution. We survived an amendment on prohibition, and we survived an amendment to repeal prohibition. The Constitution and the constitutional Republic did not fall and die as a result of those amendments which were controversial, to say the least. So good amendments and bad amendments occur, and the Constitution survives because that is the way it is supposed to be. Let's err on the side of caution. Let's err on the side of caution. It sends a good message to everyone--to young and old, those who fought and died, those who survived, and those young people in first, second, and third grade classes, and all through our schools all across America, that the flag is more than just a symbol. It represents that cohesion, that bond, that special thing that makes us Americans. We can carry it into battle. We can have it standing behind the Presiding Officer. We salute it every morning, as Senator McConnell said, before we start our proceedings. If we can salute it, we can protect it. What is wrong with that? I repeat for emphasis, err on the side of caution. It is not going to cause the destruction of America because we reinforce something we believe in by amending the Constitution. James Madison stated that desecration of the flag is ``a dire invasion of sovereignty.'' Thomas Jefferson considered violation of the flag worthy of a ``systematic and severe course of punishment.'' S.J. Res. 14 would remove the Government sanction of flag desecration and flag burning. The Judiciary Committee found in hearings that there have been between 40 and several hundred acts of flag desecration over the past decade. Our Supreme Court has granted the flag burner a sanction under the first amendment to engage in the conduct of burning an American flag. Forty-nine State legislatures and most of the American people want an amendment to protect the American flag. All we are doing, if we can get the requisite number of votes, is to pass an amendment on to the people and the legislatures to make a final decision. Our heritage, sovereignty, and values are uniquely represented by this flag. The flag of the United States of America has long unified our countrymen during times of great strife, upheaval, and during the more common times of prosperity and pride. It inspired men and women to win our independence in the Revolutionary War. Over the years, it has represented to a people of all nations freedom and all the values that has made America the envy of the world. I say to my colleagues, regardless of the technical/legal aspect of this, as to whether or not it is legal, whether or not it is constitutional, whether it is necessary or not, what is the message we send to the world? They will not understand that the Congress of the United States, the Senate, refused to pass an amendment to protect the flag. It will be misperceived, in my view. It is an inspiration. It has been praised in song and in verse. It has been honored with a day of its own--Flag Day--and its own code of etiquette on how to store it, how to salute it, and what to do with it. It has been given allegiance by our schoolchildren and given honor by the Supreme Court. The Supreme Court recognizes ``love both of common country and of State will diminish in proportion as respect for the flag is weakened.'' That was a Nebraska case in 1907. How can one say it any better than that? Unfortunately, more recent court decisions have struck down State and Federal statutes banning the desecration of Old Glory. So we debate again. We have done this before. We are going to do it again. We debate a constitutional amendment. We should remember the important relationship over the years the American flag has had with American history, with American freedoms and, indeed, the American conscience. On June 14, 1777, the Marine Committee of the Second Continental Congress adopted a resolution that read: Resolved, that the flag of the United States be 13 stripes, alternate red and white, that the union be 13 stars, white in a blue field representing a new constellation. Red for hardiness and courage; white for purity and innocence; and blue for vigilance, perseverance, and justice. George Washington described the flag in much the same way: We take the stars from heaven and the red from our mother country, separating it by white stripes, thus showing that we have separated from her; and the white stripes shall go down to posterity representing liberty. This new flag made one of its first appearances 2 months later at the Battle of Bennington. On August 16, 1777, the American soldiers faced the dreaded Hessian mercenaries. While the two forces clashed, American General John Stark rallied his troops by saying: My men, yonder are the Hessians. They were bought for 7 pounds and 10 pence a man. Are you worth more? Prove it. Tonight the American flag floats from yonder hill or Molly Stark sleeps a widow. The brave Americans triumphed under their new flag at the Battle of Bennington, and the new stars and stripes floated from the hill which the Hessians once possessed. It was the first time that liberty and freedom was advanced under the flag and, as we all know, it was most certainly not the last. I can go on and on. Of course, we all know the story of the ``Star- Spangled Banner.'' How in 1814, Francis Scott Key, a Washington attorney, boarded a British warship in the Chesapeake Bay to negotiate the release of a prisoner taken when British forces burned the Capitol in August. While aboard the ship, the British fleet turned its attention to Baltimore, and that is where Key witnessed the bombardment of Fort McHenry on September 13, 1814. It continued most of the day and night, until the British abandoned their failed attack and withdrew. Shortly after dawn on the 14th, the morning fog parted and Key saw the flag had survived its night of 1,800 13-inch bombshells and rockets. Its ``broad stripes and bright stars,'' he said, were still ``gallantly streaming.'' Although the forces at Fort McHenry were like sitting ducks under the merciless British assault, they withstood the volleys and emerged victorious once again under the besieged but still-standing American flag. Key was inspired by this. It was not a piece of canvas that inspired Key to write these things. It was not a piece of cloth. It was more than that. It was a flag. There is a difference. It is the same reason the $5 bill is not a piece of paper. It has meaning. The flag has meaning. In 1931, Congress made the ``Star-Spangled Banner'' the official national anthem of the United States. We owe our flag, once again under siege, constitutional protection. In May 1861, just before the Civil War that would tear our Nation apart, Henry Ward Beecher gave a speech on ``The National Flag.'' It is worth mentioning a few of the things he said in that 1861 speech, bearing in mind that our Nation was about to be torn asunder in a war that almost destroyed us: A thoughtful mind, when it sees a nation's flag, sees not the flag, but the nation itself. . . . Wherever [our flag has] streamed abroad men saw day break bursting on their eyes. For the American flag has been a symbol of Liberty, and men rejoiced in it. . . . If one, then, asks me the meaning of our flag, I say to him, it means just what Concord and Lexington meant, what Bunker Hill meant; it means the whole glorious Revolutionary War. . . . . . . [it means] the right of men to their own selves and to their liberties. . . . . . . our flag means, then, all that our fathers meant in the Revolutionary War; all that the Declaration of Independence meant; it means all that the Constitution of our people, organizing for justice, for liberty, and for happiness, meant. Whatever that meant, that is what the flag meant. . . . our flag carries American ideas, American history and American feelings. . . . Again, my colleagues, err on the side of caution. If you think we do not need the amendment to protect it, we will not rock the Republic that much if we would just make that statement with the amendment. Henry Ward said: Every color [of our flag] means liberty; every thread means liberty; every form of star and beam or stripe of light means liberty; not lawlessness, not license; but organized institutional liberty--liberty through law, and laws for liberty! I could not agree more. Because the highest court in the land will not preserve the liberty represented by our flag from lawlessness and license, we must protect it with a constitutional amendment. One of the most inspirational and emotional places to visit in Washington, DC, I say for those who are here who may be listening--you have all kinds of things out there that you can visit, from the Treasury Building, to the White House, to the Washington Monument, to the Lincoln Memorial, to the Jefferson Memorial. They are all wonderful. I have been to them all. Let me add one to the list you ought to see before you leave: The raising of the flag on Iwo Jima; the Iwo Jima Memorial right here in Washington--an image that signifies the steep price of freedom. On February 19, just last month, we remembered the 55th anniversary of that bloody battle. Six thousand Americans gave their lives on Iwo Jima. What were they fighting for? Most of them probably did not know where Iwo Jima was when they went into the service. After 4 days, some Marines finally made it to the top of Mount Suribachi. They tried twice to plug a wooden flag pole into the ground. Both times it broke. The third time, they wrapped the flag to a metal pole. Later during the battle, the second flag was ordered raised when commanders on the beach could not easily recognize the first one, which was considerably smaller. A photographer captured the moment, which has become the U.S. Marine Memorial outside Arlington at the National Cemetery. Marines later said they could see the flag from a quarter of a mile away, and it gave them the courage and inspiration to overcome their exhaustion and fear to keep fighting. It is amazing. It is not just a flag; it is more than a piece of cloth. Ask those guys who were at Iwo Jima. Go see that memorial, and see how you feel about an amendment after you see that monument. It goes on. We could talk all day--``Buzz'' Aldrin, when he planted the flag on the moon. The only good thing about it, I guess, is there is no oxygen on the moon so no one could burn it there. Maybe we ought to put a few more up there. Obviously, there have been many treasured moments in American history intertwined with our flag. History shows our laws have reflected the values represented by our flag and our Government's interest in preserving it. In 1634, Massachusetts colonists prosecuted, tried, and convicted a person who defaced the Massachusetts State flag. The court concluded that defacing the flag was an act of rebellion. This case, called the ``Endicott's Case,'' reflects the traditional balance between the interests of society in preserving the flag and freedom of expression. We have early examples of why we can make a strong and powerful case for a constitutional amendment. The colonists saw the need to punish the act, flag desecration, that violated Government sovereignty. The framers of our Constitution, through their words and actions, clearly showed the importance of protecting the flag as essential to American sovereignty. James Madison, in 1800, an expert certainly of the Constitution, if there ever was one--he wrote it--denounced the hauling down of the American flag from the ship the George Washington as a ``dire invasion of [American] sovereignty.'' In 1802, Madison pronounced an act of flag defacement in the streets of Philadelphia to be a violation of law. We sometimes overanalyze and overdebate what the founders meant. I am amazed by the people in the 20th, now in the 21st century, who know what the founders meant. They know all about what they meant. Even though they said something different, they still know what they meant, which is the exact opposite of what they said. It seems to me we should go back and look at what the founders said. Madison wrote the Constitution. I think he had a little understanding about what he meant. If he said something, then it ought to be pretty good support to say: You know, he might have meant what he said. He said it. He said that an act of flag defacement in the streets of Philadelphia was a violation of law. In 1807, when a British ship fired upon and ordered the lowering of an American ship's flag, Madison told the British Ambassador that ``the attack on the [ship] was a . . . flagrant insult to the flag and the sovereignty of the United States.'' As the author of the first amendment, Madison knew what freedom of speech was. However, his repeated stands for the integrity of the flag show that he believed that there had been no intent to withdraw the traditional physical protection from the flag. Thomas Jefferson also believed in the sovereignty and the integrity of the flag. While he was Washington's Secretary of State, there were many foreign wars and naval blockades. The American flag was a neutral flag during this time, and other countries wanted to fly it. Jefferson instructed American consuls to punish ``usurpation of our flag.'' To prevent the invasion of the sovereignty of the flag, Jefferson did not think that the first amendment was an obstacle to a ``systematic and severe'' punishment for people who violated the flag. Both Madison and Jefferson considered protecting the flag and punishing its abusers very important. There are all kinds of examples in American history from our greatest founders, and all kinds of resources to draw from in support of this amendment. They believed that sovereign treatment for the flag was not inconsistent with protecting free speech. They consistently demonstrated that they wanted to protect commerce, citizenship, and neutrality rights through the protection of the flag. They did not mean to suppress ideas or views or free speech. That was not what they were about. They just wanted to protect the Government's interests in protecting the sovereignty of the Nation as personified in the flag. Freedom of speech protects that, not conduct. There is a difference. William Rehnquist said: The uniquely deep awe and respect for our flag felt by virtually all of us are bundled off under the rubric of ``designated symbols'' that the First Amendment prohibits the government from ``establishing.'' But the government has not ``established'' this feeling; 200 years of history have done that. The government is simply recognizing as a fact the profound regard for the American flag created by that history when it enacts statutes prohibiting the disrespectful public burning of the flag. We have seen the Supreme Court defy the ``deep awe and respect'' that the American people, through their elected representatives, have for that flag. The Supreme Court further denied the American people any voice in protecting the integrity of the flag in the RAV v. City of St. Paul case in 1992. In that decision, the Court ruled it will no longer balance society's interest in protecting the flag against an individual's interest in desecrating it. The Court's recent decisions have led us down this path. In order to preserve the values embodied by our flag, in order to enhance national unity, and in order to protect our national sovereignty, we, the people's representatives, have to take the first step here to amend the Constitution. It is going to be a slow and difficult process, as the Founding Fathers intended. They wanted it to be slow and difficult. It was not supposed to be easy. We should have this debate. We should rise up and take each other on directly. We should have a vote, and we should be recorded. If it prevails with the 67 votes necessary, it will move forward for the people and the legislatures. It is a necessary process in order to remove the Government's seal of approval of flag burning and desecration. Mr. President, I suggest the absence of a quorum and ask unanimous consent that the time be equally deducted from both sides.

Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SMITH of New Hampshire. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SMITH of New Hampshire. Madam President, how much time do I have remaining?

Mr. SMITH of New Hampshire. I thank the Chair and yield myself 15 minutes. Turning to the substance of the McConnell amendment, I find that it fails to protect the flag or the people who revere it. This is a very narrow proposal. In order to be prosecuted under the statute Senator McConnell has proposed, one must: No. 1, intentionally destroy or damage the flag with an intent to incite or produce imminent violence or breach of the peace; No. 2, one must steal and intentionally destroy a flag belonging to the United States; or, No. 3, one must steal or intentionally destroy someone else's flag on Federal property. Now if you come to the conclusion that I have--and I think we all have on both sides--that flag desecration is wrong, why limit the desecration to those instances I just cited? Why make it legal to burn a flag in front of a crowd that loves flag desecration or on television or at some safe distance and yet make it illegal to burn a flag in front of people who would be upset? That is what is happening here. Let me repeat that. Why make it legal to burn a flag in front of a crowd that loves flag desecration and yet make it illegal to burn a flag in front of people who would be upset? That is pretty much what we have here. Why make it illegal to burn a post office flag but not a flag belonging to the hospital across the street? Why make it illegal for a lone camper to burn a flag at a campfire in Yellowstone Park when it is legal to burn a flag before hundreds of children at a public school? To anybody who is interested in protecting the flag from desecration, how does this make sense? It is not common sense. There are other problems with this statute as proposed. First, the Supreme Court is likely to hold that the amendment's attempt to prohibit flag burning that may breach the peace is unconstitutional. In Texas v. Johnson, the State of Texas defended its flag desecration statute on the ground that it was necessary to prevent breaches of the peace, and the Court rejected the argument because there was no showing that a disturbance of the peace was a likely response to Johnson's conduct regardless of Johnson's intent. So in order to qualify for the breach of the peace exception under Brandenberg v. Ohio, the Court said the flag burning must both be directed to inciting or protecting imminent lawless action and is likely to incite or produce such action. Since the McConnell amendment fails to require any showing that the destruction of a flag objectively is likely to incite or produce the breach of peace, the Court will strike it down as unconstitutional. This is a lot of legalese--legal gobbledygook, I might call it. This is what the lawyers like to do. But this is more than a legal issue. Your speech cannot be suppressed because it might breach the peace, even if you believe you are breaching the peace. You must have both intent and the objective likelihood that others nearby will be compelled to violent action because of your speech. So in this regard, I note that the Court, in Johnson, found that the flag burning did not threaten to breach the peace, nor was there any finding that Johnson intended to breach the peace. The Court also found that no reasonable onlooker would have considered the flag burning to be an invitation to a fight. In other words, the Court held that flag burning did not constitute fighting words. As a result, the McConnell amendment would not even apply to the flag burning in Johnson. Even if the McConnell statute satisfied the breach of peace exception to the first amendment, the other sections of the proposed statute wouldn't. The Johnson and Eichman cases seem to require that the same general analysis apply. Could the Government say that all racist fighting words are illegal on Government property but that others are not in some other location? Of course not. The Court has said that this amounts to impermissible content-based discrimination. But that is the effect of the amendment Senator McConnell offers because it only criminalizes stealing and destroying a flag rather than all Government property and because it only criminalizes the burning of a flag stolen from another on Government property rather than all other property that could be stolen and destroyed. A lot of legal language, but it is important because this is what we would be dealing with if the statute Senator McConnell proposes were to pass as opposed to the amendment. Even if these portions of the McConnell amendment could survive constitutional scrutiny, which I doubt they could, they are no substitute for real flag protection. The McConnell statute would not have punished Gregory Johnson's notorious flag burning. When he took it down from that pole, burned it, and spat on it, he didn't steal the flag from the United States; so he wouldn't be punished. It was stolen from a bank building; therefore the statute would not apply. Johnson didn't burn his stolen flag on Federal property; he burned it in front of city hall; therefore the bill would not apply. If the amendment would not punish Johnson, who would it punish? We need to be reasonable. We would look foolish to take this kind of legalistic approach rather than the substance of what Madison and Jefferson and Washington and so many others so eloquently put many years ago when they wrote this Constitution. Now, some say it is better than an amendment because they want to preserve the first amendment rights. But if we are going to punish flag destruction on Federal property during a political rally, if we are going to say that is not an infringement of free speech when the flag is stolen, then why does the first amendment protect desecrating the flag under the same circumstance? The ownership of the flag is not relevant to the first amendment analysis. It is not the ownership of the flag that matters, it is the flag. It is what it symbolizes. It is the act that matters. It seems to me that the statute by my friend from Kentucky is perfectly consistent without allowing flag desecration on city or State property regardless of whose flag it is. Once you make it a Federal crime to burn a flag, you are reaching communicative conduct the Supreme Court says is constitutionally protected. If you are prepared to punish flag desecration based on the theft of the flag and the location of the desecration as consistent with the first amendment, you cannot logically argue that punishing the desecration of one's own flag on that same property or other property is inconsistent with the first amendment. I think any Senator who can vote for this statute, frankly, can vote for an amendment that authorizes broader protection of our flag. We need to stop splitting hairs here and understand what we are talking about, understand the incitive act that we are talking about in the desecration of that flag and what it means to the fabric and fiber of our Nation. While the Federal connection to property may give you jurisdiction for a Federal statute, it simply does not change the first amendment analysis. Why would anyone vote for an ineffective statute? It is a weak way to say we don't want an amendment. It is not a good alternative. I would almost prefer that you voted no on the basis of it being unconstitutional in your mind than to offer this amendment. But adoption of the McConnell amendment will amount to the government's unintended declaration of open season on all American flags. It says: Do what you want to the flag--whatever you want--but don't start a riot, whatever you do. Don't steal it from the government; steal it from a bank, and whatever you do, don't burn it on government property. Otherwise, have a good time, burn away, desecrate away. Pick and choose where you want to burn, where you want to desecrate, and you will be fine. Now, really, does that make sense as an alternative to the amendment? We can do better than that. The proposed constitutional amendment allows us to do better than that. By giving Congress the power to enact a sensible flag protection statute, the flag amendment will allow for meaningful flag protection that doesn't make silly, legalistic distinctions. So let's have the courage of our convictions to say, yes, we need the constitutional amendment because without it, the flag can be desecrated, and this will have a harmful affect on our country and on its fabric, if you will. Or say, no, we don't need the amendment, it will have no impact, it doesn't matter, and let it go at that. I urge my colleagues who support protection for the flag to vote no on the McConnell amendment and to vote yes on the constitutional amendment. I suggest the absence of a quorum.