Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to discuss a Dear Colleague letter which Senator Biden and I are circulating today. I expect to have the agreement of at least two other Senators to circulate this Dear Colleague letter. It is an effort to deal with the very serious problems which have been caused by the rise in the price of oil as a result of the activities of the OPEC countries. The price of imported crude oil rose from $10.92 per barrel, for the first quarter of 1999, to over $31 per barrel in this month. In the first quarter of last year gasoline prices were, on an average, 95 cents per gallon, and heating oil was 80 cents per gallon. A year later both have peaked at $1.70. On Tuesday, the day before yesterday, OPEC agreed to raise oil production over the next 3 months by up to 1.7 million barrels a day. But this is far less than what is necessary to take care of the very serious problems imposed upon Americans at the gas pump, for heating oil, diesel fuel for the truckers, and our whole society beyond the United States--foreign countries, as well--as a result of these cartels and conspiracies. This conduct is reprehensible. If it were going on in the United States, it would be a clear-cut violation of our antitrust laws. There have been declarations at the international level. The Organization for Economic Development, consisting of some 29 countries, made a declaration in March of 1998 that conspiracies in restraint of trade constitute a violation of international law. At about the same time, 11 countries from Latin America made a similar declaration that conspiracies of cartels to restrain trade violate international law. After a considerable amount of research, we are writing to the President asking him to consider two courses of litigation going to court. One course of action would be to file suit under United States antitrust laws, because these conspiracies of cartels in restraint of trade have an economic impact on the United States. There is ample authority for the Government of the United States to proceed in this way. Suits were filed by private parties in 1979 in the Central District of California. The Court of Appeals for the Ninth Circuit concluded in 1981 that it would be inappropriate for a U.S. court to pass on that subject because international law was not clearly defined at that time. But there have been significant developments in international law since that 1981 decision by the Court of Appeals for the Ninth Circuit so that, in my judgment, the opportunities would be excellent to win this case and certainly well worth the effort. The Dear Colleague letter which we are submitting has a second aspect, and that is a recommendation to the President that legal action be instituted in the International Court of Justice, perhaps for only an advisory opinion, that OPEC countries were violating international law. I was surprised to see the International Court of Justice take jurisdiction in a case involving the issue of the legality to use or threaten to use nuclear weapons in war. I had thought that such an issue would be what is called nonjusticiable law, that is, not subject to going to court. You talk about national sovereignty. You talk about nuclear weapons. Such a subject would be really beyond the scope of what the International Court of Justice would decide. But the court did take jurisdiction on that issue. The court rendered an advisory opinion it would be illegal to either use or threaten to use nuclear weapons except in self- defense. We have also seen, in the last few years, very significant developments in international law with the War Crimes Tribunal for the former Yugoslavia, where there have been indictments, prosecutions and convictions for crimes against humanity. There was also the extensive use of international law from the War Crimes Tribunal for Rwanda. In a surprising case which has captured international headlines for months, an effort has been made to try Pinochet, former leader of Chile, on the application of the courts of Spain, although the acts did not occur in Spain. Customarily under criminal law, the prosecution is brought where the acts occurred. Pinochet was in England. There was a tremendous amount of litigation there. Surprisingly, there was an extension of international law into areas where conduct is really despicable, as are the allegations related to Pinochet. Recently the former dictator from Chad was tried in the courts of Senegal on charges of torture and violation of human rights. We are looking at a rapidly expanding international picture. I believe we ought to be taking every step possible to deal with these cartels and this conspiratorial and reprehensible conduct by the OPEC nations. While they have agreed to raise production slightly, we are at their whim for action any time they see fit to cut back on production, to extract and extort enormous sums of money from consumers in the United States and consumers around the world. This is not a problem for this day only. This is a problem which plagued the United States, with the long gas lines in 1974, 26 years ago, but I remember them well. People lined up for three blocks waiting in a gas line to get some fuel. By the time you got there, the pumps sometimes were out or sometimes it was limited. There is no reason why we should have to put up with this kind of conduct because it does violate international norms and really ought to be stopped. This letter does not contain any reference to actions on a class action basis by consumers. Right now, the antitrust law calls for actions only by so-called direct purchasers. But consideration is being given by a number of Senators to an amendment to the existing antitrust laws to allow indirect purchasers; that is, somebody who buys gas at the pump. Texaco could sue OPEC, at least would have standing to sue OPEC. There would be the other considerations that would have standing as a direct purchaser. Under a case denominated Illinois v. Brick, an indirect consumer cannot sue. But I believe there would be good reason to amend our antitrust laws, limited to the field of purchases relating to oil. That is a distinction, because oil is such a critical part of our economy and such a critical part of our everyday life: for keeping our houses and offices warm, our general buildings warm, to supplying gasoline for truckers who transport necessary items for everyday life, and for the gasoline which is necessary for our automobiles. This is where we have been gouged by the OPEC conduct. Some have raised the question: What good would it do to take these cases to court; what would the remedy be? The fact is, there are considerable assets from these OPEC countries in the United States which would be subject to attachment. With respect to the suit in the International Court of Justice, there would be considerable opprobrium in being sued, hauled into court. Nobody likes to be sued, whether an individual, a company, or a country. This conduct is reprehensible and we ought to call them on it. I do believe, in the final analysis, our U.S. laws on antitrust would enable us to get a remedy. Actually, the International Court of Justice would hold out these international pirates to be nothing more than they are, really preying on the weak, those who have to buy the oil at any price. This conspiracy and restraint of trade and these cartels ought not to be allowed to go on. Mr. President, I ask unanimous consent that the full text of the letter to the President be printed in the Record, together with a copy of a Dear Colleague letter which Senator Biden and I are circulating.

Mr. SPECTER. Any Senators who may be listening to this or any staff members, I invite them to call David Brog of my office at 224-4254 or Bonnie Robin-Vergeer of Senator Biden's office at 224-5042. We would like to get a good showing and see if we can't get the President to take a really tough position against these cartels which have so disadvantaged so many Americans.

Mr. SPECTER

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

Mr. SPECTER

Mr. SPECTER. I thank the Chair. Mr. President, I have sought recognition to comment on the amendment, whose principal sponsor is the Senator from South Carolina, Mr. Hollings, which would authorize the Congress and State legislatures to limit campaign contributions and campaign expenditures. Senator Hollings and I have been the principal cosponsors of this provision since 1988. It is denominated as a constitutional amendment, but, in fact, it is not a constitutional amendment, but instead it is a provision which would alter the opinion of the Supreme Court of the United States in Buckley v. Valeo which says that money was equated with speech. I believe that to be an incorrect constitutional interpretation, as do 209 professors of law who have submitted a statement urging the overruling of Buckley v. Valeo. Since the Supreme Court of the United States is not about to do that, the only recourse is to follow the procedure today on what is denominated a constitutional amendment, but it is not a constitutional amendment because there is nothing in the first amendment which says speech is money. That is not in the first amendment. The first amendment guarantees freedom of speech, and an opinion by a majority of the Supreme Court of the United States in Buckley v. Valeo has made that interpretation. Just as in the flag-burning case, there is nothing in the first amendment which says freedom of speech includes the right to burn an American flag. But in a 5-4 decision, the Supreme Court handed down that interpretation. It is important to note, as a matter of constitutional law, what the Supreme Court says is denominated as the opinion of the Court. If any effort were to be made to change the language of the first amendment, I would strenuously oppose any such effort. But the provision to allow Congress and State legislatures to control campaign contributions and expenditures does not do that. On a purely personal note, this decision had special significance for me on January 30, 1976, the day it was handed down, because at that time I was in the middle of a campaign for the Republican nomination to the Senate for the Commonwealth of Pennsylvania. When the campaign started in the fall of 1975, the campaign finance law of 1974 governed, which limited the contributions of an individual for his own candidacy to $35,000, which was about the size of my bank account. My opponent in the campaign was Congressman John Heinz. On January 30, the Supreme Court said that any individual can spend whatever he chose, millions if he chose, and John did. That was the balance of the election. At the same time, the Supreme Court said that my brother, Morton Specter, who had the financial ability to finance my campaign--not in the Heinz style, perhaps, but adequately--was limited to $1,000 which was provided for in the law. The question, I think not illogically, came to my mind: What was the difference between John Heinz's money and Morton Specter's money? But that is what the Supreme Court said, and they said it in a very curious way. They said: In order to preserve the provisions against invalidation on vagueness grounds-- They cite the statute-- it must be construed to apply only to expenditures for communications that express in terms that advocate the election or defeat of a clearly identified candidate for Federal office. They then drop to a footnote: . . . which required language such as ``vote for,'' ``elect,'' ``support,'' ``cast your ballot for,'' ``Smith for Congress,'' ``vote against,'' ``defeat and reject.'' That has led to the very extraordinary so-called issue advertisements, which are not controllable, where they are bought by soft money. Listen to a couple of illustrative issue advertisements in the 1996 campaign for President Clinton in the summer of 1996, which ultimately tipped the scales: ``American values,'' ``do our duty to our parents,'' ``President Clinton protects Medicare,'' ``the Dole-Gingrich budget tried to cut Medicare $270 billion,'' ``protect families,'' ``President Clinton cut taxes for millions of working families,'' ``the Dole-Gingrich budget tried to raise taxes on 8 million of them,'' ``opportunity,'' ``President Clinton proposes tax breaks for tuition,'' ``the Dole- Gingrich budget tried to slash college scholarships,'' ``only President Clinton's plan meets our challenges, protects our values.'' That is curiously, insanely categorized not as an advocacy advertisement, but only an issue ad. But what quality is there in the English language which could more emphatically say: Elect President Clinton, defeat Senator Dole? That is the consequence when millions of dollars are poured into campaigns in soft money, unregulated under the decision of the Supreme Court in Buckley v. Valeo. I note one very important factor: That the consequence of this provision, denominated as an amendment, is not to put into effect any specific reforms, but only to give the Congress of the United States the authority constitutionally to do so. This does not say what corporations can do, what unions can do, what individuals can do. It says only that the constraint of Buckley v. Valeo, the opinion of Justices in a split Court, will not preclude Congress from acting on the very important item of having democracy prevail in elections. It is totally antithetical, in my opinion, to have money equated with power in a democracy. It subverts the principle of one man-one woman equals to one vote if power is equal to money and the rich can dominate the electoral process. I do not believe that Members of the House and Senate sell their votes, although there is a widespread perception of that kind of corruption. There is a problem of access which I try to deal with by holding town meetings in the 67 counties in Pennsylvania. On recent economies where the budgets of Senators are limited as to mailing, it has not been possible for me to mail all of my constituents who attended the town meetings. But I think that is a very practical answer to those who complain about access. If Senators go to the county seat to be in the proximity of their constituents and let their constituents know by a postcard that the Senator will be present at a given time, a given place to answer their questions, then I think that kind of a guarantee of access would answer a great many skeptical comments about fundraisers and the purchase of access. That is why I am proposing legislation which would permit a Senator to supplement his mailing budget for one postcard, once a year, to each constituent in each county, providing the Senator personally appears at that event. The reality is, many Senators do not undertake town meetings anymore because they are very rough, tough affairs where people come in--may the Record show a smile on the face of the Presiding Officer, the distinguished Senator from Wyoming--they are rough, tough affairs. I think the cost would probably be fairly low because I think relatively few Senators would avail themselves of that opportunity. In conclusion, let me remind my colleagues that what Senator Hollings and I are proposing does not change the language of the first amendment, but instead it substitutes our judgment for the judgment of the Court on what is an opinion of the interpretation of the Constitution's first amendment. I ask unanimous consent that a list of the 209 scholars calling for the reversal of Buckley be printed in the Record and that the bill for postal mailings also be printed in the Record.

Mr. SPECTER. I thank my distinguished colleague from South Carolina. I think brevity is ideal, and I have said what I have to say. I would not oppose a constitutional amendment to limit Senators' speeches to 10 minutes generally. But I thank my colleague from South Carolina. I thank the Chair and yield the floor.

Mr. SPECTER

Mr. SPECTER. I thank the Chair.

Mr. SPECTER. I thank my distinguished colleague from South Carolina. Mr. President, on January 30, 1976, the Supreme Court of the United States handed down a most extraordinary decision equating freedom of speech with money. That was a shock to me on the day the decision came down, and it remains a shock, because in a democracy political power ought not to be determined by who has the most money. Since 1988, for more than 12 years, Senator Hollings and I have proposed a very basic constitutional amendment which would permit Congress to regulate contributions and expenditures. There is nothing in this amendment which would limit political speech otherwise, but deals solely with the issue of contributions and expenditures. The amendment states Congress shall have the power to set reasonable limits on the amount of contributions that may be accepted by and the amount of expenditures that may be made by or in support of or in opposition to a candidate for nomination or election to or for election to Federal office. Section 2 gives similar power to the States in identical language. In 1976, the day Buckley v. Valeo was handed down, I was an announced candidate for the Republican nomination for the Senate in the State of Pennsylvania. I had entered into that contest on the basis of the 1974 Campaign Finance Act, which said that a candidate for nomination for the Senate in the State the size of Pennsylvania would be limited to spending of $35,000. My opponent in that primary contest was Congressman John Heinz. On January 30, the Supreme Court said that John Heinz could spend millions, which he did, and my brother, Morton Specter, who might have been able to finance my campaign, was limited to $1,000. I had a little bit of a hard time understanding at that point why Congressman Heinz's speech was different from Morton Specter's speech. When I came to the Congress, I pursued this issue. As I say, since 1988, Senator Hollings and I have pursued this constitutional amendment. This is the 106th Congress. It was in the 105th Congress and the 104th Congress, et cetera. I believe it is a very important amendment if we are to eliminate certain dangers, and certainly the perception of dangers, in our election system. In the 1996 Presidential campaign, the expenditures were some $400 million. In the congressional campaigns in 1996, there was almost $300 million in the Senate, and more than $477 million in the House. In the 1988 congressional campaigns, the Senate spending level remained at about the same, while the House spent about $452 million. The time that it takes Members of Congress to raise the money has been well documented. There is a perception in the land that Members of Congress--Senators and Representatives--are for sale. I think that votes are not for sale, but I believe there is no doubt of the public perception to the contrary. The amendment which has been presented is necessary because of the decision in the Buckley case, and it is improperly characterized as an amendment to the first amendment of the U.S. Constitution. In my personal view, the first amendment to the U.S. Constitution is inviolate. Those words have stood this country tremendously well, and I would fight any effort to change the language of the first amendment. But a decision by the Supreme Court of the United States in interpreting the first amendment is not inviolate. It is not Holy Writ. These judgments are handed down by individuals who are nominated and confirmed in the Senate, and they write opinions because that is their opinion as to what the first amendment means. I submit that to say speech is equivalent to money is basically outrageous. But until that is changed and our Constitution requires that in the form of a constitutional amendment, it ought more accurately to be said that it is the opinion of the Congress by a two- thirds vote backed up by the opinion of the State legislatures, three- fourths of which are necessary to have the amendment come through, that the opinion of the Supreme Court is not correct. We are debating at the same time a constitutional amendment on the flag-burning issue. Here again, it is not the Constitution which says that in the first amendment a citizen or anyone has a constitutional right to burn a flag. But five Justices said in opinions the first amendment raises that implication. Four Justices said the first amendment did not raise that implication. They are opinions. With all due respect to the men and women who occupy the chambers of the Supreme Court, with the columns lining directly up with the Senate Chamber, having participated in my tenure in eight confirmation proceedings, their opinions are not inviolate. And their opinions are subject to modification. As our Constitution is written, they have the last word unless the provisions of the Constitution are followed to have a change and an amendment. When the Constitution was formulated, the Congress was in the first article, and I think the drafters of the Constitution thought that Congress was the primary article I body. The executive branch came in in article II. The Court came in in article III. There is nothing in the Constitution which says the Supreme Court of the United States has the power to invalidate an act of Congress. There is nothing in the Constitution which says that. But the Supreme Court of the United States, in 1803, in perhaps the most famous of all Supreme Court decisions, in Brown v. Board of Education--perhaps some others--said that the Supreme Court had that authority. I believe it was a wise decision because someone has to have the last word. But their pronouncements are not statements from the tabernacles, from the Ten Commandants, or Holy Writ. They are their opinions. It is a very tough mountain to climb to have this amendment adopted because it brings together a coalition of people who articulate the sanctity of the first amendment really misstating it as the sanctity of the opinions of the Justices. Buckley v. Valeo was a split decision. Those individuals, institutions, agencies, are combined with the people who want to maintain the money chase for elective office the way it is at the present time, so there is no doubt it is a very tough proposition. Go into the Cloakrooms of both parties and you find in common parlance the people who say they are for campaign finance reform really are not but say so because it will not pass. It is like the constitutional amendment for a balanced budget that requires 67 votes. There are people who say they are going to vote for it, but until it gets to 66, nobody will cast that 67th vote, so there is a fair amount of posturing on the issue before anything can be adopted. It is important to focus on the fact that this provision, this amendment, this change in the opinions of the Justices of the Supreme Court in Buckley v. Valeo does not adopt any specific kind of change in the campaign laws. It does not say what will happen to soft money, it does not say what will happen to corporate contributions, it does not say what will happen to the union money, it does not say what will happen to money of millionaires or billionaires. As we speak, there are campaigns underway for $25 million in one State in a primary. Is a seat in the Senate something that ought to be up for sale? I think $25 million for a primary is too high. Our seats ought not to be up for sale. There is too much of a public trust here for any individual to buy a seat in the Senate or the House of Representatives. That is the practical fact of life. When the Supreme Court of the United States decided Buckley v. Valeo--and it is one of the most challenging opinions to read; it goes on for 128 pages of single-spaced opinions--the Court said at one point: We agree that in order to preserve the provision against invalidation on vagueness grounds, section 608(e)1 must be construed to apply only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for Federal office. Then they have a footnote which says: The Constitution would restrict the application to communications containing express words of advocacy of election or defeat such as ``vote for, elect, support, cast your ballot for, Smith for Congress, vote against, defeat, reject,'' et cetera. That interpretation, on what is called express advocacy, has led to extraordinary approval of political advertisements, so-called ``issue advertisements,'' not regulatable by campaign finance and which can be paid for by soft money which corporations or individuals or unions or anyone can put up in large amounts--millions of dollars. Let me read a couple of commercials from the 1996 election early on purchased with soft money, which really turned the election. This is not a Democrat issue or a Republican issue. Both sides comport themselves about the same. This is a commercial for President Clinton's reelection. American values. Do our duty to our parents. President Clinton protects Medicare. The Dole/Gingrich budget tried to cut Medicare $270 billion. Protect families. President Clinton cut taxes for millions of working families. The Dole/ Gingrich budget tried to raise taxes on eight million of them. President Clinton proposes tax breaks for tuition. The Dole/Gingrich budget tried to slash college scholarships. Only President Clinton's plan meets our challenges, protects our values. Could anybody with hearing and sanity say that is not an advertisement for President Clinton? The Supreme Court of the United States says it is not. That is an issue ad. Why? Because it doesn't say ``elect Clinton.'' It doesn't say ``defeat Dole.'' But it says President Clinton protects Medicare. It says Dole-Gingrich tried to raise taxes on 8 million citizens. Try another one: 60,000 felons and fugitives tried to buy handguns--but couldn't--because President Clinton passed the Brady bill-- five-day waits, background checks. But Dole and Gingrich voted no. One hundred thousand new police because President Clinton delivered. Dole and Gingrich? Vote no, want to repeal 'em. Strengthen school anti-drug programs. President Clinton did it. Dole and Gingrich? No, again. Their old ways don't work. President Clinton's plan. The new way. Meeting our challenges, protecting our values. Try this one on for size: Protecting families. For millions of working families, President Clinton cut taxes. The Dole-Gingrich budget tried to raise taxes on eight million. The Dole-Gingrich budget would have slashed Medicare 270 billion. Cut college scholarships. The President defended our values. Protected Medicare. And now, a tax cut of 1,500 a year for the first two years of college. Most community colleges are free. Help adults go back to school. The President's plan protects our values. That is not a commercial for President Clinton, that is an issue advertisement, so says the law of the land handed down by the Supreme Court of the United States. To say it is ridiculous or to say it is outrageous or to say it is nonsensical, to say it is stupid is an understatement. Those are the laws we are operating under now. We face very determined opposition. I heard a lot of arguments about myths and facts, arguments that the Constitution's right to freedom of speech would be changed by what Senator Hollings and I and others are proposing. That is not so. It doesn't deal with the right to freedom of speech under the Constitution. It deals with campaign contributions and campaign expenditures. When you talk about a good bit of the legislation which is pending, it is not going to do the job even if it is enacted. Better to try than not to try, but if you are dealing with soft money, it is going to be rejected under the clear-cut language of Buckley v. Valeo on what is express advocacy contrasted with what is issue advocacy. The only way to get this job done is to adopt an amendment. We call it a constitutional amendment, but it really is not a constitutional amendment. It is not a constitutional amendment because it does not seek to change the words of the Constitution. It does not seek to change the words of the first amendment. It seeks only to say the opinions of the Justices in a split Court are not correct. Those are men and women, not too dissimilar from Senator Hollings, a very distinguished lawyer who could have been on the Supreme Court if he had chosen to be on the Supreme Court. In a fact not widely known, you don't have to be a lawyer to be on the Supreme Court. Parenthetically, I tried to urge Senator Hatfield to become a Supreme Court Justice at one stage because I thought he had extraordinary qualifications, one of which was he wasn't a lawyer, but there are others who have different opinions. When you equate money with speech, Justice Stevens said in his concurring opinion in Nixon v. Shrink Missouri Government PAC: Money is property, it is not speech. It seems fundamental that in a democracy the power of a person with money is greater than the power of a person without money. The proportion of the power goes directly in line with how much money that person has. It is not good for America. Senator Hollings and I are going to be around for a while pushing this constitutional amendment. We may even push it until Senator Hollings is a senior Senator. He has only been here since 1966. He has a record of being the senior junior Senator in the history of the Senate. I say that only in a moment of light jest. We have a very distinguished senior Senator from South Carolina, Mr. Thurmond, who is the longest serving Senator in the history of the Senate. We intend to keep pushing this. The votes go up and down as the constituency of the Senate changes. We believe very strongly that we are right and that money is not speech. One day we will prevail. I yield the floor.

Mr. SPECTER

Mr. SPECTER. I decided to join my friend from Massachusetts in introducing the Hunger Relief Act after carefully reviewing the evidence of persisting hunger in Pennsylvania and the U.S., and after extensive consultations with local leaders who are working under enormous strains to meet growing needs. As chairman of the appropriations subcommittee that covers education and labor programs, I share the concern expressed by my friend from Iowa that our education, health, and workforce improvement efforts are threatened by unmet needs for nutritional assistance. I too hope that the Budget Committee responds to the needs that our hunger relief legislation addresses, by including a reserve fund of $2.5 billion over five years.

Mr. SPECTER

Mr. SPECTER. Mr. President, how much time do I have that I am yielding back?

Mr. SPECTER. I only asked for 4, but I yield back the remainder of my time. I thank my distinguished colleague, Senator Hutchinson from Arkansas.

Mr. SPECTER. Mr. President, I have sought recognition to speak about the ``Report on the Investigation of Espionage Allegations against Dr. Wen Ho Lee.'' I have circulated this 65-page report with a Dear Colleague letter today, but I think it important to speak about it on the Senate floor. The Dear Colleague letter urges Senators to support S. 2089 which is designed to reform the Foreign Intelligence Surveillance Act to avoid the mistakes which were made in the investigation of Dr. Wen Ho Lee. In the Wen Ho Lee matter, the FBI went to the Attorney General personally to ask for approval for a FISA warrant and was turned down. The Attorney General in August of 1997 assigned the matter to a subordinate who had no experience on FISA matters. The Attorney General did not check on the matter, and the FBI request was, therefore, rejected. The FBI then let the matter languish for some 16 months before taking any investigative action. At that stage, the Department of Energy meddled in the matter by giving a lie detector test to Dr. Lee, representing he had passed it when, in fact, he failed it, throwing the FBI investigation off course. The FBI then gave another polygraph on February 10 which Dr. Lee failed, but there was no action taken to remove him from the office until March 8, so that he stood with access to this very important information for some 19 months. This information was so important that, according to the testimony of Dr. Stephen Younger at the bail hearing, it could change the global strategic balance. The legislation seeks to correct these failures by requiring the Attorney General personally to review the matter when requested in writing by the Director of the FBI, and then, if the FISA application is declined, to state in writing the reasons, which will give a roadmap to the FBI as to what to do, and then for the Director of the FBI to personally supervise the investigation and to centralize the authority of the FBI to keep the meddling of the Department of Energy illustratively out of it. This report is disagreed with in some manner by the Department of Justice, and there is some disagreement by other Federal agencies and some Senators. But it sets out a narrative, and anybody who has a disagreement will have an opportunity to testify before the oversight subcommittee. This legislation has been cosponsored by Senator Torricelli, Senator Grassley, Senator Biden, Senator Thurmond, Senator Feingold, Senator Sessions, Senator Schumer, Senator Helms, and Senator Leahy. There is widespread support for the legislation even though there is some disagreement as to whether the probable cause was adequate for the FISA warrant or some of the other specific statements of fact. This report has been prepared with the exhaustive work of Mr. Dobie McArthur. It summarizes in detail what happened on the errors of the Wen Ho Lee investigation. I am circulating it, as I say, with a Dear Colleague letter to Senators. I think it is an important matter. It has been cleared by the Department of Justice and other agencies so that it does not contain any classified information. It can be found at my Senate website: www.Senate.gov/Specter. I ask unanimous consent that the Dear Colleague letter and the executive summary be printed in the Congressional Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, can I persuade my colleague to let me have 4 minutes ahead of him?

Mr. SPECTER. Reserving the right to object, is that a unanimous consent request?

Mr. SPECTER. Mr. President, if I may respond, I spoke in support of Judge Paez yesterday. I would like to speak for about 4 minutes on a matter, if I could squeeze in here?

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to highlight an important provision in the Federal Aviation Administration reauthorization conference report which provides more equitable treatment for families of passengers involved in international aviation disasters. The devastating crash of Trans World Airlines Flight 800 on July 17, 1996 took the lives of 230 individuals. Perhaps the community hardest hit by this tragedy was Montoursville, PA, which lost 16 students and 5 adult chaperones who were participating in a long-awaited Montoursville High School French Club trip to France. Last Congress it was brought to my attention by constituents, including parents of the Montoursville children lost on TWA 800, that their ability to seek redress in court was hampered by a 1920 shipping law known as the Death on the High Seas Act, which was originally intended to apply to the widows of seafarers, not the relatives of jumbo-jet passengers who have perished during international air travel. The Death on the High Seas Act states that where the death of a person is caused by wrongful act, neglect, or default occurring more than one marine league--three miles--from U.S. shores, a personal representative of a decedent can only sue for pecuniary loss sustained by the decedent's wife, child, husband, parent, or dependent relative. Therefore, the families of the victims of aviation accidents, such as TWA 800, Swissair 111 and EgyptAir 990, all of which occurred more than three miles offshore, were precluded from recovering non-pecuniary damages such as loss of society or punitive damages, no matter how great the wrongful act or neglect by an airline or airplane manufacturer. In the 105th Congress Representative McDade and I introduced legislation to remove the application of the Death on the High Seas Act from aviation incidents. Our legislation was not enacted into law, and in the 106th Congress, Representative Sherwood and I again reintroduced this measure. The House bill, H.R. 603, passed by an overwhelming margin and was incorporated into the House FAA reauthorization bill. The Senate version of the FAA bill included a provision allowing victims' families to recover non-pecuniary damages, but with a cap of $750,000, which I opposed. On October 18, 1999, I was successful in convincing 15 of my colleagues to join me in a letter to Chairman McCain urging the Senate to accept the House provision in conference. Representative Sherwood and I also worked closely with Chairman Shuster and his staff to press our case before the conferees. I am very pleased that the final provision agreed upon in the FAA reauthorization conference report accomplishes the primary goal of our free-standing legislation by extending the territorial seas of the United States from three to twelve miles for the purpose of aviation accidents after July 16, 1996. This effectively removes TWA 800--which crashed roughly ten miles offshore--from coverage under the Death on the High Seas Act. In addition, while the Death on the High Seas Act will still apply to other aviation accidents which occurred beyond twelve miles, such as Swissair 111 and EgyptAir 990, non-pecuniary damages will now be recoverable for the first time. Our success in this matter would not have been possible without the work of many, and I would particularly like to recognize the efforts of Hans Ephraimson-Abt, Frank Carven and Will and Kathy Rogers, all of whom have lost loved ones as a result of tragedy in international air travel. These individuals first brought this issue to my attention and served as able advocates. I would also like to thank Dan Renberg and Mark Carmel of my staff, who worked tirelessly on behalf of all the victims' families. Finally, I would like to thank my colleagues, Chairman Shuster, Chairman McCain, Senator Hollings and Senator Gorton for working with Representative Sherwood and myself to address this matter. This issue is not about large damage awards. It is about ensuring access to justice and clarifying the rights of families of victims of plane crashes. While nothing can ever completely take away the pain and grief felt by those who lost loved ones in these tragedies, I am hopeful that the victims' families are comforted with the knowledge that some measure of fairness has been restored and the American civil justice system is now more accessible.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the Readiness and Management Support Subcommittee of the Committee on Armed Services be authorized to meet during the session of the Senate on Tuesday, March 7, 2000 at 2 p.m., in open session to receive testimony on readiness programs in review of the defense authorization request for fiscal year 2001 and the Future Years Defense Program.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on the Judiciary Subcommittee on Technology, Terrorism and Government Information be authorized to meet to conduct a hearing on Tuesday, March 7, 2000, at 2 p.m., in SD226.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Subcommittee on Water and Power of the Senate Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Tuesday, March 7 at 2:30 p.m. to conduct an oversight hearing. The subcommittee will consider the President's proposed FY2001 budget for the Bureau of Reclamation (Department of the Interior) and the Bonneville Power Administration, the Southeastern Power Administration, the Southwestern Power Administration, and the Western Area Power Administration (Department of Energy).

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet at 9:30 a.m. on Tuesday, March 7, 2000, in open and closed sessions, to receive testimony from the unified and regional commanders on their military strategy and operational requirements in review of the defense authorization request for fiscal year 2001 and the Future Years Defense Program.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Senate Committee on Commerce, Science, and Transportation be authorized to meet during the session of the Senate on Tuesday, March 7, 2000, at 9:30 a.m. on S. 1755--Mobile Telecommunications Sourcing Act.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet in executive session during the session of the Senate on Tuesday, March 7, 2000, at 10 a.m.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet in executive session for the consideration of S.2, the Educational Opportunities Act, during the session of the Senate on March 7th, 2000.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Senate Committee on Finance be authorized to meet during the session of the Senate on Tuesday, March 7, 2000, to hear testimony regarding Agriculture Negotiations in the WTO After Seattle.

Mr. SPECTER

Mr. SPECTER. Mr. President, this afternoon the Senate takes up the nominations of Ms. Marsha Berzon and also Judge Richard A. Paez. These nominations have been pending in the Judiciary Committee for a considerable period of time. I supported both of those nominees in moving them to the floor from the Judiciary Committee. Ms. Berzon has an outstanding record academically and as a practicing lawyer. She received her bachelor's degree from Harvard and Radcliffe colleges in 1966. She received her J.D. degree, doctorate of law, from the University of California, Boalt Hall School of Law in 1973. Thereafter, she clerked for Ninth Circuit Judge James R. Browning and then for Supreme Court Justice William J. Brennan. She has been in the practice of law since 1975 and most recently, from 1978 to the present time, with the firm of Altshuler, Berzon, Nussbaum, Berzon & Rubin, where she has had a very active litigation practice. She argued four cases before the Supreme Court of the United States, which is a large number of cases for a practicing lawyer to have before the Supreme Court. That kind of appellate practice is a strong indicator of her preparation for work as an appellate court judge on the Ninth Circuit to which she has been nominated. There have been objections raised to Ms. Berzon on ideological grounds. It is my view that this kind of a challenge ought not to be a basis for defeating a nomination to the Federal court. She has opposed as a personal matter the death penalty, as many nominees do on a personal level, but has stated her willingness to follow the law in imposing the death penalty. She has been supported by many police organizations, which I ordinarily would not mention except that the challenge has been made to her qualifications based upon her opposition to the death penalty. I think it appropriate to note that she has been supported by a number of law enforcement organizations, including the National Association of Police Organizations, the California Correctional Peace Officers Association, the International Union of Police Associations, and the Los Angeles County Professional Police Officers Association. I have attended the hearings on Ms. Berzon, which have been very detailed. I recall one day the hearing was interrupted. We came to the floor to vote and later continued the hearing in one of the Appropriations Committee rooms. On the basis of that hearing and her familiarity with the law and her extensive practice, especially her appellate practice, I believe she is qualified to be confirmed for the Ninth Circuit. Accordingly, I urge my colleagues to support her. Judge Richard Paez is also on the list for confirmation. Judge Paez brings a distinguished record. He is a graduate of Brigham Young University where he received his Bachelor's degree in 1969; a graduate from Boalt Hall, University of California at Berkeley in 1972; worked for the California Rural Legal Assistance as a staff attorney from 1972 to 1974; took on work for the next 2 years for the Western Center on Law and Poverty as a staff attorney; and from 1976 to 1981 was with the Legal Aid Foundation. Those are tough jobs, not high-paying jobs. I know from my work as district attorney of Philadelphia where I saw public defenders work-- did a volunteer stint many years ago in the public defender's office--I know the pay in those positions and I know the nature of the work. It is a real contribution. From 1981 to 1994, Richard Paez was a judge on the Los Angeles municipal court, and from July of 1994 until the present time, he has been a U.S. District Judge for the Central District of California. A number of objections have been raised to Judge Paez. One, that he made a speech in 1995 where he criticized a couple of initiatives in California: Initiative 187, on benefits to illegal aliens; and a second, No. 209 on affirmative action. I don't think a judge gives up his right to freedom of speech when he is on the bench. It could be said it would be a little more prudent not to speak on matters that might come before the court. But if the matter does come before the court, there are many other judges who can undertake the litigation matter on recusal. Even if Judge Paez had not spoken up on the matters and had such strongly held views, that probably would have been an appropriate matter for recusal in any event. I don't think speaking up on those matters is a burden or inappropriate for his judicial duties. Again, it might be better not to do that, but it is not a disqualifier. Objections have been raised on two matters where he refused to dismiss a case brought against Unocal involving charges of abuse of human rights in Bosnia--a pretty tough standard to get a case dismissed on a preliminary motion. There again, not a weighty matter which would warrant disqualification. An issue was raised at him being a municipal court judge handling a case involving Operation Rescue where there was an issue of whether he stormed off the bench or simply called a recess for a cooling off period, and some issue as to how he treated people in the audience who were waving Bibles, an issue of whether he threatened to take the Bibles away. Again, I think the aggregate of these three matters are not sufficient to rise to the level of disqualification. There is one matter which concerns me and that was a plea bargain which Judge Paez handled on a case involving John Huang. I have reviewed that matter in some substantial detail on the notes of testimony, of the sentencing, and of the Government's brief filed on the downward departure and believe that the Government did not present all the evidence, all the materials which should have been presented at the John Huang sentencing. I have discussed the matter with Judge Paez by telephone. There has been a pattern on plea bargains where the Department of Justice has, in my judgment, not done the vigorous, forceful work that a prosecutor ought to do in the plea bargain. One of those cases involves Dr. Peter Lee, where there were serious charges of espionage. I went to California and talked to the Chief Judge Hatter out there about that case and found there was insufficient information presented to Judge Hatter. I mention that because it is a parallel to the case involving John Huang with Judge Paez. The Judiciary oversight subcommittee, which I chair, is looking into the Huang plea bargain, as we are looking into the Dr. Peter Lee plea bargain, as we shall look into other campaign finance matters, including the probation of Charlie Trie in the campaign finance case, and the probation of Johnny Chung in a campaign finance case. However, there were very serious matters which were not presented to Judge Paez. The essence of the complaint filed by the Department of Justice involved only $7,500 of illegal campaign contributions, and an obtuse, obscure reference in the Government's brief to a figure of $156,000 for the period covered by the conspiracy, which lasted from 1992 to 1994. What the Government did not bring forward was information disclosed by the Governmental Affairs Committee that John Huang was involved in soliciting $1.6 million which was returned by the Democratic National Committee. In that was a $250,000 contribution from a John H. Lee, a South Korean businessman, which Huang collected, knowing that Lee was a foreign national, and also the Huang solicitation for arranging for Ted Sioeng, a foreign businessman, with connections I will not describe on the Senate floor, which should have been called to Judge Paez's attention. After reviewing the records in the case, the notes of testimony at sentencing, and what was made available in the Government's memorandum, none of these matters were called to Judge Paez's attention. I have made a request of Judge Paez, as I made a request of Chief Judge Hatter in the Dr. Peter Lee case, to examine the presentence report. That is customarily a confidential matter, but Judge Paez said on a showing of cause after notification of the parties, that might be made available to the Judiciary subcommittee on oversight. I make these references to Judge Paez on this state of the record, and we are continuing to make the inquiries as to what the Government put on as to John Huang, but there is nothing on this record which suggests that Judge Paez knew of these other factors, which I think would have warranted a very different and a much more substantial sentence, just as I think had Chief Judge Hatter been informed about the details of Dr. Peter Lee, there would have been a different sentence in that espionage case. These matters are now ripe for decision by the Senate. There has been some suggestion of a further investigation on this matter, but when Judge Paez's nomination has been pending since January of 1996, and all of the factors on the record demonstrate it was the Government's failure, the failure of the Department of Justice to bring these matters to the attention of Judge Paez and on the record, he has qualifications to be confirmed. I do intend, on this state of the record, to support his confirmation.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition today to express my support for the nomination of Julio M. Fuentes to be a judge on the Third Circuit Court of Appeals. I recently had the opportunity to meet Judge Fuentes when he came before the Senate Judiciary Committee for his nomination hearing on February 22nd. At that time, I questioned the Judge on his experience and credentials for the bench and was persuaded that he will be able to meet the great challenge of serving on the Third Circuit. Judge Fuentes has had a distinguished legal career. He earned his law degree from the State University of New York in Buffalo in 1975. He then entered the practice of law in New Jersey and continued to practice for 7 years. While he was practicing, Mr. Fuentes was appointed to be a judge on the Newark Municipal Court, where he served from 1979 to 1987. In 1987, Judge Fuentes was appointed to the New Jersey Superior Court, where he has served until the present day. His 20-plus years on the state bench have given Judge Fuentes a strong judicial background that will serve him well on the Third Circuit. Many of the issues that Judge Fuentes will encounter on the federal bench, from criminal law to torts to contracts, are ones with which he will be well acquainted from his time on the state bench. Other issues before the federal courts, such as antitrust and securities cases, will be new to Judge Fuentes. But I am confident that his experience has given him the skills and temperament needed to tackle these issues. The Third Circuit is a prestigious court with a proud history. It has a tremendous volume of very high-powered litigation. I wish Judge Fuentes a long and productive career in this most important position.