Fred Thompson

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I rise in opposition to S. 96, the Year 2000 liability legislation. The problems caused by faulty computer software on January 1, 2000 may be severe, and some legislation addressing that problem may be warranted. Although I had concerns about S. 96 as it was originally offered, I supported invoking cloture on the bill because I wanted to see the compromise process continue so as to possibly improve the legislation. But even the modified bill would cause the litigation nightmare that it ostensibly seeks to avoid. Were this bill to become law, both State and Federal courts would be required to resolve disputes resulting from Year 2000 failures not under familiar legal standards developed over 200 years, but by applying new legal terms and definitions, or terms never before applied to this context. As a result, vast amounts of litigation will be required to establish the meaning of those terms, and various State and Federal courts are certain to adopt different views of the same language. For instance, the bill applies to injuries that result ``directly or indirectly from an actual or potential Y2K failure.'' Because it would be in the interest of defendants to apply the liability shields contained in this bill as widely as possible, many types of cases certainly will be characterized as ``result[ing] directly or indirectly from an actual or potential Y2K failure.'' Pre-trial motions, trial court rulings, appellate court decisions, and ultimately, appellate court rulings to resolve conflicting appellate court rulings will be necessary before the scope of cases actually covered by the bill is finally determined. Courts will consume years determining the meaning of other operative terms, such as ``material defect,'' or deciding precisely what factors are relevant in assessing ``the nature of the conduct.'' Although punitive damages have been a staple of the common law, this bill would impose a punitive damages regime never before adopted in any jurisdiction. While some States have adopted caps on punitive damages for noneconomic damages in personal injury cases, this bill represents the first time that a law would cap punitive damages with respect to property damage. No one has offered a compelling reason for this course. And no one can predict what the consequence will be of a blanket Federal rule on this subject in the absence of any State experiences with this approach. The bill's effects on the procedures for resolving cases are equally serious. It would permit a defendant to respond to a complaint by indicating a willingness to engage in alternative dispute resolution. But the bill makes no provision for the actual availability of alternative dispute resolution in federal courts that lack them, nor does it ensure the use of State ADR procedures. And federal law would control the pleading requirements even of State law causes of action brought in state courts. Additionally, I am concerned about the effect this bill would have on small businesses. Unless a small business is in the computer business, its exclusive role in Year 2000 litigation will be as a plaintiff, not a defendant. But this bill provides benefits only to defendants, benefits that would be of no use to most small businesses. At the same time, it denies otherwise available legal rights to small business plaintiffs. Apart from restricting their right to recover punitive damages, small businesses who currently could bring an action against a landlord who fails to provide working elevators so that customers and employees can reach their offices would not be able under this bill to sue the landlord if he for failed to take action now to make sure that those elevators will work on January 1, 2000. The landlord's relief from liability will both increase the chances that a small business' elevator will not work and decrease the recovery that the small business can obtain if in fact the elevator does not work. Similarly, a small business that bought a computer that did not work now has the right to obtain consequential damages from that failure. If the business had to shut down because of the failure, the business owner could recover the lost profits for the period that the defective computer caused the shutdown. But under this legislation, all that the business owner who files a tort and contract lawsuit could obtain is recovery for damage to the computer itself. No compensation would be permitted for real injuries that the owner faces. There is no reason to impose this hardship on a small business that bought a product that it had every reason to believe would work. There is no reason to increase the protection of the company that did not take the appropriate steps to ensure Y2K compliance as against the workers who will be laid off because the small business cannot continue to operate. Even though the bill does preempt state law in a number of areas, federal action might be appropriate to address a unique event such as the Year 2000 problem. There could in fact be a large volume of litigation that could overwhelm courts. But this bill is not an effective means of addressing that possible calamity. Reducing in advance the exposure of people who made non-Y2K compliant products will reduce neither the scope of the computer malfunctions nor the number of lawsuits. Restrictions only on the ability of plaintiffs, such as individuals and small businesses, to recover damages, no matter how meritorious their cases, is not warranted. S. 96 will create many new issues to litigate, increase the likelihood that the Year 2000 problem will be great rather than small, and harm the ability of innocent persons to recover that which their states legally entitle them to retain. These are not desirable objectives, and for these reasons I oppose this bill.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, today I rise to introduce the ``Federalism Accountability Act,'' a bill to promote and preserve principles of federalism. Federalism raises two fundamental questions that policy makers should answer: What should government be doing? And what level of government should do it? Everything else flows from them. That's why federalism is at the heart of our Democracy. The Founders created a dual system of governance for America, dividing power between the Federal Government and the States. The Tenth Amendment makes clear that States retain all governmental power not granted to the Federal Government by the Constitution. The Founders intended that the State and Federal governments would check each other's encroachment on individual rights. As Alexander Hamilton stated in the Federalist Papers, No. 28: Power being almost always the rival of power, the general government will at times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. The structure of our constitutional system assumes that the states will maintain a sovereign status independent of the national government. At the same time, the Supremacy Clause states that Federal laws made pursuant to the Constitution shall be the supreme law of the land. The ``Federalism Accountability Act'' is intended to require careful thought and accountability when we reconcile the competing principles embodied in the Tenth Amendment and the Supremacy Clause. Congress and the Executive Branch should not lightly exercise the powers conferred by the Supremacy Clause without also shouldering responsibility. As the Supreme Court has been signaling in recent decisions, where the authority exists, the democratic branches of the Federal Government should make the primary decisions whether or not to limit state power, and they ought to exercise this power unambiguously. We need to face the fact that Congress and the Executive Branch too often have acted as if they have a general police power to engage in any issue, no matter how local. Both Congress and the Executive Branch have neglected to consider prudential and constitutional limits on their powers. We should not forget that even where the Federal Government has the constitutional authority to act, state governments may be better suited to address certain matters. Congress has a habit of preempting State and local law on a large scale, with little thought to the consequences. Congress and the White House are ever eager to pass federal criminal laws to appear responsive to highly publicized events. We are now finding that this often is not only unnecessary and unwise, but it also has harmful implications for crime control. Too often, federalism principles have been ignored. The General Accounting Office reported to our Committee that there has been gross noncompliance by the agencies with the executive order on federalism that has been law since it was issued by President Reagan in 1987. In a review of over 11,000 Federal rules recently issued during a 3-year period, GAO found that the agencies had prepared only 5 federalism assessments under the federalism order. It is time for legislation to ensure that the agencies take such requirements more seriously. To be sure, we have made some inroads on federalism. The Supreme Court has recently revived federalist doctrines. Congress passed the Unfunded Mandates Reform Act to help discourage the wholesale passage of new legislative unfunded mandates. Congress also gave the States the Safe Drinking Water Act, reduced agency micro-management, and provided block grants in welfare, transportation, drug prevention, and--just recently--education flexibility. Much of the innovation that has improved the country began at the State and local level. But unless we really understand that federalism is the foundation of our governmental system, these bright achievements will fade. As we cross into the 21st century, federalism must constantly illuminate our path. Our governmental structure is based on an optimistic belief in the power of people and their communities. I share that view. It is my hope that the Federalism Accountability Act give a greater voice to State and local governments and the people they serve and reinvigorate the debate on federalism. The ``Federalism Accountability Act'' will promote restraint in the exercise of federal power. It establishes a rule of construction requiring an explicit statement of congressional or agency intent to preempt. Congress would be required to make explicit statements on the extent to which bills or joint resolutions are intended to preempt State or local law, and if so, an explanation of the reasons for such preemption. Agencies would designate a federalism officer to implement the requirements of this legislation and to serve as a liaison to State and local officials. Early in the process of developing rules, Federal agencies would be required to notify, consult with, and provide an opportunity for meaningful participation by public officials of State and local governments. The agency would prepare a federalism assessment for rules that have federalism impacts. Each federalism assessment would include an analysis of: whether, why, and to what degree the Federal rule preempts state law; other significant impacts on State and local governments; measures taken by the agency, including the consideration of regulatory alternatives, to minimize the impact on State and local governments; and the extent of the agency's prior consultation with public officials, the nature of their concerns, and the extent to which those concerns have been met. The legislation also will require the Congressional Budget Office, with the help of the Office of Management and Budget and the Congressional Research Service, to compile a report on preemptions by Federal rules, court decisions, and legislation. I hope this report will lead to an informed debate on the appropriate use of preemption to reach policy goals. Finally, the legislation amends two existing laws to promote federalism. First, it amends the Government Performance and Results Act of 1993 to clarify that performance measures for State-administered grant programs are to be determined in cooperation with public officials. Second, it amends the Unfunded Mandates Reform Act of 1995 to clarify that major new requirements imposed on States under entitlement authority are to be scored by CBO as unfunded mandates. It also requires that where Congress has capped the Federal share of an entitlement program, then the Committee report and the accompanying CBO report must analyze whether the legislation includes new flexibility or whether there is existing flexibility to offset additional costs. Mr. President, this legislation was developed with representatives of the ``Big 7'' organizations representing State and local government, including the National Governors' Association, the National Conference of State Legislatures, the Council of State Governments, the National League of Cities, the National Association of Counties, the U.S. Conference of Mayors, and the International City/County Management Association. I am pleased that this legislation is supported by Senators Levin, Voinovich, Robb, Cochran, Lincoln, Enzi, Breaux, Roth, and Bayh. I urge my colleagues to support this much-needed legislation. I ask unanimous consent that the bill be printed in the Record.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, today I rise to introduce the ``Federalism Accountability Act,'' a bill to promote and preserve principles of federalism. Federalism raises two fundamental questions that policy makers should answer: What should government be doing? And what level of government should do it? Everything else flows from them. That's why federalism is at the heart of our Democracy. The Founders created a dual system of governance for America, dividing power between the Federal Government and the States. The Tenth Amendment makes clear that States retain all governmental power not granted to the Federal Government by the Constitution. The Founders intended that the State and Federal governments would check each other's encroachment on individual rights. As Alexander Hamilton stated in the Federalist Papers, No. 28: Power being almost always the rival of power, the general government will at times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. The structure of our constitutional system assumes that the states will maintain a sovereign status independent of the national government. At the same time, the Supremacy Clause states that Federal laws made pursuant to the Constitution shall be the supreme law of the land. The ``Federalism Accountability Act'' is intended to require careful thought and accountability when we reconcile the competing principles embodied in the Tenth Amendment and the Supremacy Clause. Congress and the Executive Branch should not lightly exercise the powers conferred by the Supremacy Clause without also shouldering responsibility. As the Supreme Court has been signaling in recent decisions, where the authority exists, the democratic branches of the Federal Government should make the primary decisions whether or not to limit state power, and they ought to exercise this power unambiguously. We need to face the fact that Congress and the Executive Branch too often have acted as if they have a general police power to engage in any issue, no matter how local. Both Congress and the Executive Branch have neglected to consider prudential and constitutional limits on their powers. We should not forget that even where the Federal Government has the constitutional authority to act, state governments may be better suited to address certain matters. Congress has a habit of preempting State and local law on a large scale, with little thought to the consequences. Congress and the White House are ever eager to pass federal criminal laws to appear responsive to highly publicized events. We are now finding that this often is not only unnecessary and unwise, but it also has harmful implications for crime control. Too often, federalism principles have been ignored. The General Accounting Office reported to our Committee that there has been gross noncompliance by the agencies with the executive order on federalism that has been law since it was issued by President Reagan in 1987. In a review of over 11,000 Federal rules recently issued during a 3-year period, GAO found that the agencies had prepared only 5 federalism assessments under the federalism order. It is time for legislation to ensure that the agencies take such requirements more seriously. To be sure, we have made some inroads on federalism. The Supreme Court has recently revived federalist doctrines. Congress passed the Unfunded Mandates Reform Act to help discourage the wholesale passage of new legislative unfunded mandates. Congress also gave the States the Safe Drinking Water Act, reduced agency micro-management, and provided block grants in welfare, transportation, drug prevention, and--just recently--education flexibility. Much of the innovation that has improved the country began at the State and local level. But unless we really understand that federalism is the foundation of our governmental system, these bright achievements will fade. As we cross into the 21st century, federalism must constantly illuminate our path. Our governmental structure is based on an optimistic belief in the power of people and their communities. I share that view. It is my hope that the Federalism Accountability Act give a greater voice to State and local governments and the people they serve and reinvigorate the debate on federalism. The ``Federalism Accountability Act'' will promote restraint in the exercise of federal power. It establishes a rule of construction requiring an explicit statement of congressional or agency intent to preempt. Congress would be required to make explicit statements on the extent to which bills or joint resolutions are intended to preempt State or local law, and if so, an explanation of the reasons for such preemption. Agencies would designate a federalism officer to implement the requirements of this legislation and to serve as a liaison to State and local officials. Early in the process of developing rules, Federal agencies would be required to notify, consult with, and provide an opportunity for meaningful participation by public officials of State and local governments. The agency would prepare a federalism assessment for rules that have federalism impacts. Each federalism assessment would include an analysis of: whether, why, and to what degree the Federal rule preempts state law; other significant impacts on State and local governments; measures taken by the agency, including the consideration of regulatory alternatives, to minimize the impact on State and local governments; and the extent of the agency's prior consultation with public officials, the nature of their concerns, and the extent to which those concerns have been met. The legislation also will require the Congressional Budget Office, with the help of the Office of Management and Budget and the Congressional Research Service, to compile a report on preemptions by Federal rules, court decisions, and legislation. I hope this report will lead to an informed debate on the appropriate use of preemption to reach policy goals. Finally, the legislation amends two existing laws to promote federalism. First, it amends the Government Performance and Results Act of 1993 to clarify that performance measures for State-administered grant programs are to be determined in cooperation with public officials. Second, it amends the Unfunded Mandates Reform Act of 1995 to clarify that major new requirements imposed on States under entitlement authority are to be scored by CBO as unfunded mandates. It also requires that where Congress has capped the Federal share of an entitlement program, then the Committee report and the accompanying CBO report must analyze whether the legislation includes new flexibility or whether there is existing flexibility to offset additional costs. Mr. President, this legislation was developed with representatives of the ``Big 7'' organizations representing State and local government, including the National Governors' Association, the National Conference of State Legislatures, the Council of State Governments, the National League of Cities, the National Association of Counties, the U.S. Conference of Mayors, and the International City/County Management Association. I am pleased that this legislation is supported by Senators Levin, Voinovich, Robb, Cochran, Lincoln, Enzi, Breaux, Roth, and Bayh. I urge my colleagues to support this much-needed legislation. I ask unanimous consent that the bill be printed in the Record.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I offer this amendment on behalf of myself as chairman of the Governmental Affairs Committee and Senator Lieberman, the Committee's ranking minority member, and Senators Warner and Levin, the chairman and ranking minority member of the Armed Services Committee. Senator Lieberman and I thank the Armed Services chairman and ranking member for their cooperation and assistance in preparing this amendment which will benefit not only the procurement process within the Department of Defense, but other agencies across the Federal government as well. The amendment which we offer today began as a request from the Administration and others to include additional procurement-related reforms to those enacted over the past several years and those already included in S. 1059. Our amendment includes five provisions, as follows: (1) Streamlined Applicability of Cost Accounting Standards; (2) Task Order and Delivery Order Contracts; (3) Clarification to the Definition of Commercial Items; (4) Two-year Extension of Commercial Items Test Program; and (5) Extension of Interim Reporting Rule on Contracts with Small Business. I ask unanimous consent that a joint statement of sponsors explaining the amendment be placed in the Record immediately following my statement. This statement represents the consensus view of the sponsors as to the meaning and intent of the amendment.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I am saddened by the tragic circumstances that have motivated my distinguished colleague from Pennsylvania to offer his amendment. It is understandable that concerned citizens hope to avoid crime committed by people who are released from prison. And I might favor states increasing the length of sentences of violent offenders. But that choice should be that of the states, and not one essentially forced on states by the Federal Government for fear of losing their criminal assistance funds. That view by itself leads me to oppose this amendment, although the particular way in which this amendment will operate causes me particular concern. States are not mere appendages of the federal government to be called upon to do the Federal Government's bidding every time we think we've got a good idea. State sentencing for state crime is a state matter. The amendment provides that in any case in which a person is convicted of murder, rape, or a dangerous sexual offense as defined by state law, and that person previously has been convicted of that offense in another state, the state of the prior conviction will have deducted from the federal criminal justice funds it receives, and transferred to the state where the subsequent offense occurred, the cost of the apprehension, prosecution, and incarceration of the offender, unless the original state has: (1) adopted the federal truth in sentencing guidelines; (2) imposed a sentence on persons for these offenses that is at least 10 percent above the average term of imprisonment for that offense that is imposed in all states; and (3) made the particular offender serve at least 85 percent of his sentence. Mr. President, my opposition to this provision is based primarily on federalism. States should be free to adopt the sentences that they choose. They should also be able to adopt the parole policies of their choice. States that impose short sentences or lenient parole policies will bear most of the cost themselves if released criminals commit future offenses. Under this amendment, states must adopt the federal sentencing guidelines if they wish to be certain to avoid losing federal funds. The states will have their sentencing policies for these offenses not drafted by their state legislators in their state capitals, nor even by Congress. State judges will lose the ability to exercise whatever discretion in sentencing their states permit. Instead, the unelected bureaucrats of the United States Sentencing Commission will set the sentences for state criminals who commit these offenses. I have no criticism of these individuals pursuing the task that Congress has given them, particularly since their work is subject to congressional review. But they were not and should not be given the power to set state sentences, unanswerable to the states who will be forced to silently acquiesce to their efforts. In addition, a state seeking to retain its federal funding by complying with the three conditions of this amendment would incur much greater expense than any loss of funds it would sustain if it were not to comply with the conditions. States who seek to sentence at more than 110 percent of the average will be required to spend huge sums on new prisons to hold these offenders. In addition to construction costs, there will be additional costs of personnel and other operating expenses. Such long sentences will also mean that the states will incur huge medical expenses for older prisoners, for fear of losing federal funds if they were released and committed new offenses. If a state wanted to incur these costs without this amendment, it could do so, but this bill will for all practical purposes force states to do so without funding any of the resulting costs. In addition, states sentencing for such a long duration may not be sentencing wisely. Some offenders deserve parole. Not all offenders are incorrigible. Some offenders can be helped by religion or counseling to lead law abiding lives, returning to their families, safely living among the community, avoiding the need for states to incur costly prison expenses, and actually becoming productive, taxpaying citizens. This amendment essentially deprives a state of that choice, and may result in the unjustified continuation of imprisonment of certain persons, harming that person, his family, the community, and taxpayers generally. The 110 percent of the national average sentence requirement is troubling for other reasons as well. By definition, half the states will be below average, and even a larger number will not sentence for 110 percent or more of the national average. That will mean that most states will not be able to avoid the risk of losing their federal funds, no matter how hard they try to comply with the amendment's conditions. And since the average is not static, a state that is above 110 percent in one year may not be at that level the following year. As a result, the amendment would result in states continuously increasing their sentences in what will probably be a vain effort to be one of the above average states. And how will the average be calculated? Is a 99 year sentence longer or shorter than a life sentence? Is a death sentence imposed after 5 years longer or shorter than a life sentence without parole? I suppose states will have an incentive under this bill to adopt not only a death penalty, but to sentence the defendant to 1000 years besides. It is not Washington's business whether or not a state has a death penalty for state crimes. That decision should be made by the people of a state and no one else, consistent with constitutional requirements. Apart from opposing this amendment on federalism grounds, I also note the existence of significant drafting problems that will result in what I am sure the sponsors would consider to be unintended consequences. For instance, the amendment defines ``murder'' and ``rape'' by reference to state law. But some states will never be in a situation in which a person convicted of murder has been released from serving a murder sentence or rape sentence in their state. For instance, Vermont has no crime of rape, but only sexual assault. No one can be convicted of rape who was convicted of rape previously in Vermont. Wisconsin has no rape or murder statutes, but simply intentional homicide and sexual assault. One can well imagine that if this amendment passes, states will manipulate the label placed on various conduct so that it can make sure to convict persons for ``murder'' or ``rape'' however defined under another state's law--and in such a way as now not remotely considered to constitute these crimes--while convicting persons in their own state for ``intentional homicide'' or ``sexual assault.'' That kind of manipulation will produce virtual anarchy. While the House companion bill avoids this particular problem because it defines these offenses without regard to state law, I note that the House bill is equally objectionable in its own way, since the crimes that it covers are broader than the Senate bill, extending to crimes that few would consider exceptionally serious, and thus causing greater expense to the states than the Senate bill if loss of funds is to be avoided. Moreover, under the House bill, unlike this amendment, a state is never free from the risk of losing funding, since it will be liable for a released offender's offense for the rest of his life, regardless of the length of his sentence or actual imprisonment before release. We have eliminated parole at the federal level. But there are many fewer federal than state parolees. If a state would rather spend money on education or effective prevention programs than on very long sentences, it should be able to do so without federal interference. Some prisoners may deserve parole. Others may not. And so long as there is parole, as in every other human endeavor, mistakes will occasionally be made, sometimes with serious consequences. The people who make those decisions and the state lawmakers--not federal lawmakers--should continue to set parole policy, and they should continue to be held accountable by the people of their states for those decisions. The track record of Congress in knowing just how crime should be punished should give pause to anyone who thinks states and the American people would necessarily benefit more from a congressionally mandated approach to this issue than from experimentation among the states. Mr. President, I sympathize with those who are the victims of crimes caused by parolees. I understand the sincere motives of my colleagues who support this legislation. But I strongly believe that it is misguided and runs counter to our system of federalism. It will cost states billions of dollars without any guarantee of retaining full federal funding. It may prevent sensible parole policies in particular cases. I have also pointed out a number of practical problems with the amendment's drafting. For all of these reasons, I oppose the amendment.

Mr. THOMPSON

Mr. THOMPSON. I thank the Chair. I thank the Senator from Utah and I congratulate him for his long work in this area. While I cannot support this legislation, it is certainly better than much I have seen in this area. I know he and Senators Sessions, Biden, and others, have spent a lot of time on this. I congratulate them for it. Mr. President, I rise not to debate any particular amendment. There has been a lot of good discussion as to the grants, the programs, and as to the various amendments and details of what we should do and how much money we should spend on various programs. I rise not to address that because I have a significant problem with the entire concept. I believe that our approach with regard to youth violence here is misguided. First, I will address basically what this bill does. Among other things, it makes it easier to prosecute juveniles in Federal criminal court. We have from 100 to 200 prosecutions a year of juveniles in Federal court. It is a minuscule part of our criminal justice system. In 1998, there were 58,000 Federal criminal cases filed involving 79,000 defendants. As I say, there were only 100 or 200 juvenile Federal crime cases among that group. This bill would make it easier to bring what has traditionally been a State matter into the Federal system. It makes it easier to try a juvenile as an adult. It would allow juveniles as young as 14 years of age to be tried as an adult for violent crimes and drug offenses--drug offenses, again, that are of the street crime category, where we have laws on the books in every State of the Union. It makes more local street crime Federal offenses-- recruiting gang members and things of that nature. It allows the Attorney General to send in a Federal task force if she deems it necessary. Then there is an array of programs and grants that this bill sets forth: Educational programs, educational grants for dropout prevention, school violence, restitution, child abuse, probation enhancement, mentoring programs, drug abuse, gang prevention, gun prevention, job training, afterschool activities, family strengthening, evaluation programs. Then this bill requires in a few instances, and in a few instances encourages, States to do certain other things if they want to participate and get this grant money and program money. It encourages boot camps, sentencing of juveniles who are as young as 10 years old as adults, encourages graduated sanctions, and encourages States to set up various kinds of programs for victims of juvenile crime. That is required if the States want this money. It requires communities to establish coalitions to replicate other communities. In other words, it requires coalitions of groups of law enforcement officers to get together and do some of the things that have been done in other communities where they apparently have had good results. Then we have seen research amendments with regard to crime in schools, establishing of hotlines, and increasing the penalties for various things. We have extended, by amendment, the 1994 crime bill that will spend about $31 billion over the next 5 years. This bill does all of these things. Mr. President, it is a tremendous conglomeration of grants and programs and mandates, whereby we spend additional billions of dollars on matters that are being, or should be, covered by State and local laws, or that should be handled by local governments--such things that would be anticrime measures, tough on crime measures; or we are dealing with areas in which we really don't know what we are doing, with all due respect, as a Federal Government. With that, I am referring to basically prevention programs. Basically, what we try to do is either get tough on crime programs, increasing penalties, and federalizing additional offenses, on the one hand, or coming in with prevention programs designed to reach young people before they get in trouble. Both are laudable goals. But not too long ago, I chaired the Youth Violence Juvenile Justice Subcommittee of the Judiciary Committee. We had extensive hearings. It is a subject that we are all concerned about. We are looking for solutions. I came away with the distinct feeling and impression that we need to concentrate more on research and evaluation of the underlying problems of juvenile violence. There is no question but that these are deep- rooted, social, complex problems about which we know very little. I believe there is one thing the Federal Government does probably better than anybody else, and that is research and evaluation. We have the resources and we can get the capability and we can make the long- term commitment if we desire to come up with evaluation programs over a period of time to really determine what kind of programs work. We spend all of this money, we put forth all of these programs, and we really have no idea what is working. We have 132 Federal criminal juvenile justice programs on the books today. I daresay we have very little idea what is really working and what is not working. We have another tragedy, so we double the money with regard, in many instances, to the same programs we have already. Professor Alfred Blumstein was a witness before our committee. He is a professor at Carnegie-Mellon University. He talked about the research and evaluation that was needed. You could not listen to him without coming away with a certain feeling of humility about how little we know regarding this matter. He said: The last 25 years has seen a considerable accumulation of research findings and insights that were not available earlier. Those research findings, however, reflect only a tiny portion of what we need to know to make effective policy and operational decisions in each of the many areas relating to juvenile violence. He said: There have been some evaluations of various kinds of rehabilitation programs, and these are encouraging, but we have very little in the way of evaluation of prevention programs. This is partly because so little has been done, but also because it is very difficult to measure the effects of programs whose effects may not be observed for a decade or more. In other words, what he is saying is, in order to have an evaluation of a research program worth its salt, we need to set it up for a decade or more. He goes on to say: . . . Thus, while it is clear that much important research has been conducted over the past decade, it is also clear that we are still at an extremely primitive stage of knowledge regarding violence, especially for directing focused action, and that much more still needs to be done. He says: . . . we need much more and better information on the development and the nature of criminal careers . . . He goes on and on and says: . . . The major growth in juvenile violence is not only of concern itself, but it is symptomatic of many key aspects of juvenile development that need major attention. The knowledge base to address these issues is remarkably thin in terms of knowing how best to intervene in these developmental processes. So, Mr. President, instead of passing additional laws, additional get-tough-on-crime measures, instead of establishing a Federal entity that is sufficiently funded where there is a commitment over many, many years, instead of focusing on research and evaluation before we go about implementing these policies, we are now coming up with the same old responses that we have had in the past. In this bill, there is some research and evaluation provisions that I think are very good; in fact, some of the things we worked on in times past when I was on the Judiciary Committee. But it is minuscule in comparison to what we need. Research and evaluation programs are scattered out among the States, a little bit here and there. We need a long-term Federal commitment in the one area where the Federal Government does it best--for research and evaluation of programs. We can see what works--which of these 132 Federal programs are working-- and then be a clearinghouse for State and local governments so they can get the benefit of that knowledge, and they can go back and implement their own programs, instead of us instituting all of these grants and all of these programs directing States to do some things, and encouraging States to do other things, thinking that we have answers that we do not have. We are getting the cart before the horse because of the tragic circumstances we are faced with. We know now that some of these programs are very questionable in terms of results. The DARE program, the GREAT program, some of the mentoring programs-- we simply know that in some cases there is absolutely no objective data that indicates they are doing any good, and in some cases there is expert testimony that in fact they are doing some bad things. We cannot sit up here and have things occur to us that sound good to us and assume they are going to work out in real life. That is how we got the airbags that killed children. That is how we got the program of asbestos removal that we now know was the wrong way to go about that problem. We need to have a little humility as we approach this problem. We encourage things. There are some amendments, such as counseling programs for juvenile violence in schools, and so forth. I understand they have a gymnasium full of counselors out there in Colorado now that people are not using. We encourage boot camps for juveniles as adults when we know now that in some cases juveniles treated as juveniles will get more than they do being treated as adults. We want to pass additional gun laws. Every State in the Union has laws against children taking guns to school. We came in and overlaid that with Federal law that made it a Federal offense for kids to take guns to school. Now we have State laws and a Federal law. Now we have had a tragedy. And goodness knows what the next batch of laws will be that portend to address this. When I see statements made that by this bill we are giving our children back their childhood, or we are empowering parents to be decent parents, it concerns me that we may really believe that, because we do not have that ability, we do not have that power, we do not have that knowledge, or know-how. What is the underlying philosophy for Federal involvement in this area, or Federal control in some cases? Is it expertise? Do we have more expertise on the Senate floor than out among the State and local people who deal with this problem every day? I doubt it, because we keep coming up with the same old programs and adding one every once in a while. We have the waterfront covered as far as programs are concerned. I can't think of a program that has not been covered or funded in some way. Is it because we have the money? Well, yes. We do have the money, because more and more we are depriving States and local governments of their sources of revenue, bringing it to Washington, then doling it back to them and telling them how to spend it, as if we knew. In this bill we have $450 million for juvenile accountability block grants, $75 million for juvenile criminal history upgrades, $200 million for challenge grants, $200 million for JJDPA prevention grants, $40 million for the National Institute for Juvenile Crime Control and Prevention, of which $20 million would go to evaluation research, $20 million for gang programs, $20 million for the demonstration programs, $15 million for mentoring programs. I defy anyone to point out to me which one of these programs is working or not working of the ones that we already have on the books that basically track these same kinds of efforts. Is the federalization of this matter because the problem is bigger and, therefore, we have to address it? I don't think that is the case. We continue to federalize matters that are so insignificant that we don't even prosecute them once they get on the books. We now have Federal laws with regard to animal enterprise terrorism, theft of livestock, and odometer tampering. There has been a total of four prosecutions nationwide for all three of those acts. Now we have a horrendous incident out in Colorado, which disturbs all of us. But the fact of the matter is that less than 1 percent of youth homicides occur in schools. Deaths by homicide is the second leading cause of deaths among children, second to accidents. And much of that has to do with driving while intoxicated and things of that nature. Mr. President, the 10th amendment was put in the Constitution for a reason. The Federal Government ought to do the things the Federal Government is good at and leave the States alone to do the things the Constitution gives them under the Constitution. There is no plenary Federal law enforcement power under the Constitution. We think we have a good result up here with a program in Boston, or wherever, so that we want to authorize the Attorney General to go in and put that program in other places. If it were a good program, logic would extend it to every place in the country, which means a Federal police power. And we do not want that. We held federalism hearings the other day. We had a consensus from Democrats and Republicans, liberals and conservatives, law enforcement officers and defense lawyers. And they are all concerned about the trend toward federalizing what essentially have been State and local matters for more than 200 years. There were 1,000 bills introduced in the 105th Congress. A lot of them had to do with juvenile crimes. No one knows actually how many Federal crimes are on the books now; the statutes are so complicated. Some people say 3,000. But with the administrative regulations, and so forth, there are thousands and thousands of statutes and regulations that have criminal consequences. That is the wrong direction. The Federal Government should cover things in the Federal criminal law that have to do with Federal people or property, and interstate transactions that are truly interstate. Local corruption conflicts, litigation of civil rights, and things of that nature; that is, the law enforcement side of the equation, that is the equation that the State and local governments have the responsibility for. If we take that away from them, either in one fell swoop or gradually, they will do a worse job of it in the future instead of a better job. On the prevention side, especially with regard to juveniles, let us have a little modesty and acknowledge that we do not know the answers to these problems. Some of them we will never know. They are complex. They are inherent societal problems that we did not get into overnight; we will not get out of them overnight. But I would suggest again that instead of spending these billions of dollars--literally billions of dollars on top of billions of dollars-- on programs about which we have no idea of their efficacy, what is working and what is not working, let's scale that way back and put some money up here for some long-term research and evaluation for over a decade or so, so we can really tell what works. Let us be a clearinghouse and an example then for the States. We don't have to dole out the money to them or suggest that they do this program or that program when we don't know what we are doing. They can see what works and what doesn't work. On the grounds of the Federal Government properly doing what it should be doing, letting the States do their traditional job under the Constitution, and, second, on the grounds of a little bit of modesty in terms of crime prevention--and that is where it is as far as these juveniles are concerned, on the prevention side--we have to get to these kids earlier. But the fact of the matter is, we are scattered to the four winds, throwing billions of dollars at a problem without knowing what the solution is. There is only one way that I see we can go, and that is more research for Federal evaluation and research, and in the meantime let's hold our horses and not respond to the headlines--the most difficult thing in the world to do. But by getting out front and pretending we can do things we can't do, we are setting the cause back; we are not advancing it. I yield the floor. Several Senators addressed the Chair.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, on its face, this resolution is hard to challenge. Of course, we want to do whatever it takes to win a conflict we are engaged in. However, voting for this Resolution, while appealing to my instincts, would go against what I believe to be my obligation. This Resolution is essentially a Declaration of War--a Declaration of War that the President hasn't even requested. It would give to the President a blank check for an indefinite period of time, regardless of any changes in circumstances. It does not even require that we act in concert with our NATO allies. Congress' Constitutional authority to declare war presupposes that the President will support such action. In each of the five wars for which Congress has passed Declarations of War, none have come without a specific presidential request. This resolution today, however, would grant the President authority he has not sought, based on the War Powers Resolution he does not recognize, to fight a ground war he has promised he will not undertake. If the Commander in Chief decides that we need ground troops in Yugoslavia, then he should come to the Congress and request them. At that time, the Congress would have the opportunity to ask certain questions, such as: what are our vital national interests here? what are our military and political objectives? do we propose to take Belgrade or parts or all of Kosovo? how do we propose to get our troops into the battle area? how many troops will it take? how many casualties do we expect? what will be the make up of the NATO ground forces? e.g., how many U.S. troops? how long will it take us to achieve our objectives? how thinly spread will we be left in other places in the world where we have military commitments? what is the overall commitment level of our NATO allies, both with regard to such an operation and with regard to its aftermath? When and if that time comes, I will ask these questions and others and listen carefully to the answers. I will give it careful consideration and cast my vote depending upon the circumstances that exist at that time. If we pass this Resolution now, however, I fear that these important questions will never be answered. When Congress was first consulted with regard to the air campaign in Yugoslavia, it was done almost as an afterthought, after the Administration had already made its decision to begin bombing. Many of us felt at the time what we should all now know with certainty--that Administration officials had not adequately considered all of the ramifications of what they were doing. On the heels of that experience, should Congress now, when the stakes have been raised much higher, authorize and even pressure the Administration to fight a ground war that they are clearly not prepared to fight? Does the Senate not want answers to why and how a ground campaign would work--the kind of answers that we should have demanded before the Senate voted to approve the air campaign? And with regard to the timing of this resolution, some now suggest that more time should be devoted to debating this issue and I agree. However, this argument is being made a little late. It would have been more helpful if we had had a more extended discussion of this issue at a time when it might have had more relevance--before the final decision for the bombing campaign was made. At that time, the President should have explained to the Congress and the American people why going to war in the Balkans was in our national interest. We should have demanded it. However, he didn't and the Senate, after a debate under a 30 minute time agreement, gave pro forma approval to a decision that had already been made. And now in the middle of a bombing campaign that the President still says will achieve our objectives, we are asked to cast another vote that will have no effect. So be it. But I would hope that in the future we would take up these matters earlier in the process and not let the President present them to us as a fait accompli. Perhaps then the two branches of government could come together with some unity of purpose and we could all go to the American people with a clear message about our intent and about our interests. What we are witnessing now in the disunity of the Congress and among the American people is the result of our failure to do that.

Mr. THOMPSON

Mr. THOMPSON. Mr President, I am pleased to join Senator Levin and a bipartisan group of our colleagues in introducing legislation to promote smarter regulation by the federal government. The Regulatory Improvement Act is an effort by many of us who want to improve the quality of government to find a common solution. I am pleased that we are introducing this bill with Senators Voinovich, Robb Abraham, Rockefeller, Roth, Daschle, Stevens, Moynihan, Cochran, Breaux, Frist, Lincoln, Enzi, Grams, and Grassley. The supporters of this bill represent a real diversity of political viewpoints, but we share the same goals. We want an effective government that protects public health, well-being and the environment. We want our government to achieve those goals in the most sensible and efficient way possible. We want to do the best we can with what we've got, and to do more good at less cost if possible. The Regulatory Improvement Act will help us do that. The Regulatory Improvement Act is based on a simple premise: people have a right to know how and why government agencies make their most important and expensive regulatory decisions. This legislation also will improve the quality of government decision making--which will lead to a more effective Federal government. And it will make government more accountable to the people it serves. The Regulatory Improvement Act will require the Federal government to make better use of modern decisionmaking tools (such as risk assessment and benefit-cost analysis), which are currently under-used. Right now, these tools are simply options--options that aren't used as much or as well as they should be. Under this legislation, agencies will carefully consider and disclose the benefits and costs of different regulatory alternatives and seek out the smartest, most flexible solutions. This legislation also will help the Federal government set smarter priorities--to better focus money and other resources on the most serious problems. This legislation not only gives people the right to know; it gives them the right to see--to see how the government works, or how it doesn't. And by providing people with information the government uses to make decisions, it gives people a real opportunity to influence those decisions. The bill empowers people and their State and local officials to provide input into the Federal rulemaking system. It will make the Federal government more mindful of how unfunded mandates can burden communities and interfere with local priorities. That is why our governors, mayors, state legislators, and county officials support the Regulatory Improvement Act. We have worked hard to build a solid foundation for smarter regulatory decisionmaking. Last March, the Governmental Affairs Committee favorably reported the Regulatory Improvement Act, then S. 981, by a 10-5 vote. At the time of the markup, the Administration sent a letter to me and Senator Levin expressing a number of concerns with the bill. We worked to resolve those concerns, which largely involved adding clarifying language to the bill. In addition, some sections of the bill were modified, and a couple were dropped. On July 15, Jack Lew, the Director of OMB, sent us a letter on behalf of the Administration. The letter states that the President supports the legislation. I am pleased that the White House recognizes the importance of the legislation to deliver the effective and efficient regulatory system that the American people expect and deserve. This legislation will add transparency to the current rulemaking process, raise the quality of regulatory analyses so smarter decisions can be made, and help expedite important safeguards--to reduce risks and save lives. It will help us get more of the good things sensible regulation can deliver. That's why the Regulatory Improvement Act has broad bipartisan support and is endorsed by state and local officials, government reformers and scholars, small business owners, farmers, corporate leaders, and school board members. I look forward to working with my colleagues to pass this much-needed legislation. Mr. President, I ask unanimous consent that letters of support from the National Governors' Association, the National League of Cities, the Council of State Governments, the National Conference of State Legislatures, the U.S. Conference of Mayors, and the National Association of Counties be printed in the Record.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, we at the Governmental Affairs Committee are, indeed, conducting hearings with regard to the independent counsel. The criticisms of the Independent Counsel Act have been many and well known for many, many years. The Act was passed in 1978. I was one of the ones who was critical of the idea that you could set somebody up totally separate and outside the process and not accountable in the very beginning. A lot of my friends now who criticize the Act, of course, thought it was a very good idea back when the independent counsel were investigating the other party. All of the criticisms about Mr. Starr, of course, were applicable to Mr. Walsh's investigation, which went on longer, cost more than Mr. Starr's investigation back during previous administrations. We should not look at this in terms of who is investigating whom. As I say, I have been critical of it all along. I still am. But the question is, Where is the power going to reside if you have a real conflict of interest? If you have a President of the United States who has been accused of serious misconduct, can his appointee, the Attorney General, investigate that with any credibility? I think for most of the Attorneys General we have had throughout our history, the answer is, yes, they have been people of great integrity. But what about the perception? Is that a good idea? So if we do not have an independent counsel, we give it back to the employee of the President to investigate the President? That is an inherent conflict of interest. Attorney General Reno herself, the Department, the administration back in 1993, all agreed that was a bad idea, and they were for the independent counsel. Now, recent events, and Mr. Starr's criticism, has caused them to reverse on a dime and say that they have discovered structural defects in the statute. The statute has been basically the same since 1978. They are just now discovering those structural defects in the statute. It looks an awful lot like the question of, Whose ox is being gored? But we are trying to stay away from too much of that. I have been critical, of course, of this Justice Department in not appointing an independent counsel in the case that I feel calls out for it the most. We have a classic case with regard to the campaign financing scandal--one of the largest scandals we have ever had in this country--a classic case for why the independent counsel law was passed. Yet all these others have been appointed, but when it comes to the big guy, we do not have an appointment in that particular case. But, that aside, we are trying to examine all sides of this: Should we continue the law? Should we not continue the law? And if we continue the law, should we modify it? All those are possibilities. All those are on the table. And we do not know what the result is going to be yet. So along comes this amendment that is on the floor now--a terribly bad idea. Regardless of whether you are for the independent counsel statute or against the independent counsel statute, the idea that Congress should step in, either now, 3 months from now, or 6 months from now, and call to a halt investigations that have been going on for a year--not just Mr. Starr's investigations but other independent counsel--and say, ``Congress knows best; we're going to get into the middle of these criminal investigations, and although we set up the independent counsel law that was passed in this U.S. Congress--they were duly appointed--we're going to call a halt to them because we don't like the people who are being investigated; we don't like the amount of money that you're spending,'' or all those newfound criticisms that we have been silent on up until now since 1978, is an extraordinarily bad idea. The Congress has already determined that even if the independent counsel law lapses, these investigations that are ongoing should continue. The Attorney General can ask the three-judge panel to call a halt to an investigation if she believes that it is justified. She has not done that. In fact, the Attorney General does not support this amendment. This amendment would say: Let's call a halt to all of it and give it back to the Attorney General. I asked the Attorney General yesterday, in Governmental Affairs, just one question: ``As a matter of policy, do you think it would be wise for Congress to terminate current ongoing investigations, regardless of what happens after that?'' Attorney General Reno's response: ``I think since these investigations are underway, they should probably be concluded under the current framework.'' So she doesn't support this amendment, an extraordinarily bad idea. So it goes back to the Attorney General under this amendment, as I say, not just Mr. Starr's investigation, but the investigation with regard to Mr. Cisneros, for example, others, the Webb Hubbell investigation. All of that would be brought to an end and sent back to the Attorney General. And she has two choices: She can either keep it and dispose of it herself, at a time when that Department probably has less credibility than it has had in many, many years; or she can launch a new investigation and call for a new special counsel to come in-- extraordinarily expensive, wasteful, nonsensical, Mr. President; a very, very bad idea, whether or not you are for or against the extension of the Independent Counsel Act. Congress should not be interjecting itself to terminate investigations at midstream when there is also a mechanism, if it is justified, for that to be done. So I sincerely hope that my colleagues will join me in opposing this amendment. I yield the floor.

Mr. THOMPSON. Mr. President, the Senate has previously determined if, in fact, the Independent Counsel Act is allowed to expire, investigations that are currently underway will be ongoing. Why did the Senate decide that? The obvious reason is it is a bad idea for the Congress to be terminating investigations in midstream and sending them back to Justice. This amendment would reverse that previous determination that this body has made. They would send it back to Justice with choices: They would either have to shut down the investigation, make the determination themselves, which would be terrible in terms of appearance, or they would have to continue the investigation and bring somebody else in to do it, which would be terrible in terms of efficiency. I asked Attorney General Reno in the Governmental Affairs Committee what she thought about it. She said, ``I think, since these investigations are underway, they should probably be concluded under the current framework.'' I suggest this is a very bad idea and should be defeated.

Mr. THOMPSON

Mr. THOMPSON. I thank the chair. My friend from North Dakota points out that there are, indeed, other threats to this Nation besides those that pose a threat that this bill is designed to prevent. There are, indeed, other threats. He points out that our missile defense system may not stop all of the threats that are out there, and he, of course, is correct with regard to that, also. I do not believe that is sufficient grounds for opposing a missile defense system for this country. We have become aware, much more than we would like, recently of the new threats, the new world that we live in, the new threats that are posed not only from old sources but from many, many new sources, some of which we may not be fully aware of and what their capabilities might be, which apparently have missed the estimates of our own intelligence community, in many instances. I agree with my friend concerning the Nunn-Lugar program. I have also visited Russia and have seen that program in operation and the many good things that it is doing and its related programs. We have a nuclear cities program over there where we are trying to turn some of their nuclear cities and help them turn their enterprises in other directions. We have assisted with regard to their scientists hopefully so that they will not leave the country and go to places and spread technology in places that would be detrimental to us. We have, indeed, destroyed some of the nuclear stockpile, but I think it is important to note that we are essentially still dipping in the ocean as far as that is concerned. We are just getting started in that regard. They have many, many more tons of nuclear materials and many, many missiles that we have not touched yet, even if we are aware of their existence. We should not in any case believe that we have begun to seriously eat into the Soviet Union's nuclear capabilities. We are trying to do that. Those programs must be maintained. It is going to take a period of time before we can make any progress in that regard. We have spent hundreds of millions of dollars in Russia in order to maintain these programs. Our taxpayers have made a decision that it is worthwhile that we go over there and try to make friends with the Russians and try to help them make this transition. We have put our cash on the barrel head to the tune of hundreds of millions of dollars. That money is sorely needed in Russia right now, and hopefully it will be put to good use. At the same time that we are doing this, our intelligence community and our Government still have serious concerns about proliferation activities of the Russians. When you consider the threats around the world and the so-called rogue nations and the outlaw nations and the dangers they present, oftentimes if you trace back to where they are getting their capabilities, you will go back to Russia, you will go back to China. It is a serious, serious problem. If what we are saying today is that if the United States protects itself with a missile defense program, not only is Russia going to continue to proliferate but it is going to refuse the hundreds of millions of dollars that we propose to put in there, then so be it. I think we still have to go forward in the best interests of our country. Make no mistake; we do not want to abrogate understandings lightly. Everyone knows the circumstances have totally changed. Our deal with the U.S.S.R. no longer exists. We have shown our friendship. The Soviet Union for years and years said, ``We have to counter the United States of America, because they have all these hostile intentions and they have these aggressive tendencies.'' We have shown that not to be the case. We have reached out a hand of friendship, but we cannot, in turn, be threatened with closing us out, especially when they are still too often spreading nuclear technology and capability and missile capability around the world at a time when we are considering whether or not we want to have a missile defense system to protect ourselves against whomever might be hostile to us in the future. Clearly, that is not Russia today. But it is a dangerous world out there in many, many more respects than when the old Soviet Union posed its threat. Many of my colleagues have already recited the growing missile and weapons of mass destruction threats which America faces from many hostile and potentially hostile countries, and I will not take the time to recite them again. Most of these threats in fact were well known when we voted on missile defense last September. What is new since the last time we debated missile defense is the news that China has obtained the design for our most modern nuclear weapon, the W-88 warhead. This technology permits the development of massively destructive nuclear warheads at a fraction of the size previously possible. Acquiring this technology will allow the Chinese to fit multiple warheads into a single missile for the first time and to deploy more nuclear weapons on submarines. Of course, this revelation must be coupled with the knowledge that because of lax export controls, the Chinese have also been able to obtain American technology to improve the guidance of their missiles and to develop the capability to deliver multiple warheads from one missile. As we saw in the hearings of the Governmental Affairs Committee in our International Security Subcommittee, chaired by Senator Cochran, last year, cooperation with American satellite manufacturers has actually helped Beijing learn how to build better missiles and deploy multiple payloads from a single rocket. This enhances China's capability to develop this latter technology for use on ballistic missiles. As a result, they will be able to launch multiple warheads from a single missile, a capability called MIRV'ing. So now the Chinese have more reliable missiles, each of which may soon become capable of delivering multiple warheads with one shot. And now they have stolen the final ingredient to make this work--our own most sophisticated miniature warhead design. But that is not all the U.S. technology they have. American supercomputers may allow China to maintain the W-88 without nuclear testing. The administration has loosened export restrictions on this technology. The Chinese are also reported to have stolen U.S. laser technology and, in conjunction with advanced computers, may have helped them simulate nuclear explosions in the laboratory. Now the United States has a huge program underway to develop the means to ensure the viability of its weapons without conducting test explosions. Were the Chinese to develop similar capabilities, then they could maintain this W-88 and other modern warheads without testing. This would enable Beijing to conduct nuclear weapons work without telltale underground explosions and help the Chinese missile force threaten the United States for decades to come. So what does this actually mean in terms of U.S. national security? Until now, China's nuclear arsenal has been quite small, built around a comparatively tiny force of land-based and mostly liquid-fueled intercontinental ballistic missiles. However, thanks to the acquisition, both legal and illegal, of new technologies, Beijing now stands on the verge of both a qualitative and a quantitative breakthrough. There are at least four new missile programs currently underway designed to provide the People's Liberation Army with dramatically improved capabilities by the first years of the next century. Moreover, the Chinese now have a class of submarine capable of launching ballistic missiles. These developments are highly relevant to our debates over U.S. missile defense. Moreover, Mr. President, these developments threaten not only the United States but pose a more imminent threat to our allies in Asia. They are at least as worried as we are about missile and weapons of mass destruction advances by China and North Korea. After all, countries such as Japan, South Korea, and Taiwan are much more likely targets for these weapons than we are--at least for now. If ongoing Chinese missile deployments and nuclear proliferation are not addressed, and if we do not provide access to effective missile defenses to U.S. allies in Asia, then such vulnerable countries may have little choice but to try to develop their own means of nuclear defense or deterrence. This would intensify rather than diminish the proliferation problem in Asia and is yet another reason it is imperative that we develop the interrelated technologies and control systems for theater-level and national-level missile defenses. We should not forget that China has a well established propensity to export its nuclear weapons and ballistic missile technology. It has been reported in the press, for example, that China provided a fully tested nuclear weapons design and highly enriched uranium to Pakistan. China has also provided ballistic missile technology to Pakistan and other countries. In 1988, China provided a turnkey medium-range missile system to Saudi Arabia. That is an entire weapons system ready to use right out of the box. China has also a record of providing nuclear, chemical, and biological missile technology to Iran. Furthermore, the Rumsfeld Commission reported that a number of countries hostile to the United States, including Iran, Libya, Iraq, and North Korea, are capable of manufacturing weapons of mass destruction and ballistic missiles and that previous United States intelligence assessments had greatly underestimated the danger that such developments pose to the United States. Should China decide to export the W-88 or a complete weapon to such nations, as has been done with so many other dangerous technologies, the consequences for regional and global stability would be grave indeed. All this, Mr. President, makes it more important than ever that the National Missile Defense Act of 1999 be passed. Faced with new and growing nuclear and ballistic missile threats, in part through our own carelessness, America needs the protection that such a missile defense system would offer. And Americans need the confidence of knowing that a system will be deployed rather than waiting on some future administrative decision on whether to deploy. It is time for Congress to act. The technology to develop and deliver nuclear and other weapons of mass destruction is widely available and is spreading rapidly. If we do not prepare today, when the day arrives that America is paralyzed by our own vulnerability to ballistic missile attack or when an attack actually occurs, we will be reduced to telling the American people and history merely that we had hoped this would not happen. I urge my colleagues to support S. 257, the National Missile Defense Act of 1999. I yield the floor. Mr. BIDEN addressed the Chair.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I rise today to express my support for the Education Flexibility Partnership Act of 1999, better known as Ed- Flex. This bill will help to restore the proper respect for the ability of states and local communities to educate our children. I applaud the work done by my colleagues, Bill Frist and Ron Wyden, and I am pleased to join them as a cosponsor of this bill. Ed-Flex is a common sense, bipartisan, cost-effective approach that empowers states and local communities to put their focus where it belongs--on educating our children, not on complying with federal mandates. The principle of federalism is vital to our democracy. This principle holds that the Federal Governmental has limited powers and that government closest to the people--states and local communities--is best positioned to serve the people. Our Founding Fathers had serious concerns about the tendency of our government to centralize power and to encroach on a state's ability to improve the lives of its citizens. This federal encroachment has been particularly pronounced in the area of education. The U.S. Constitution assigns Washington no responsibility at all for education. Indeed, for its first two centuries, America's Federal Government understood that the 10th amendment left responsibility for education to the states. America's education system works best when parents, teachers, and local school officials, who know our students best, make the decisions about where a school spends its money. But as federal involvement in education increased since the 1960's, Washington began to regulate how our schools spend their funds. Even after all these new regulations, America's dropout rates are near 40 percent in many urban areas, three- fourths of all 4th graders in high-poverty communities cannot read at a basic level, and our most disadvantaged communities remain in need of real education reform. Americans understand that Washington can't possibly know what is best for a particular student in Memphis or in Los Angeles or in Miami. Patrick Jacob of Germantown, TN, wrote to me earlier this month to remind me that when the Federal Government tells our schools how to spend their money, it reduces the community's ability to take responsibility for educating our children. There are real solutions in education and they are coming from states from Texas to North Carolina and Arizona and from cities from Milwaukee to New York. However, federal regulations often prohibit states from expanding these reforms. Ed-Flex will give state and local school officials greater freedom from burdensome requirements of federal education statutes or regulations that impede local efforts to improve education. For example, if the parents, teachers and leaders of a particular school district decide that additional money is needed for reading instruction, that school district should not be precluded from shifting its resources to achieve that goal. Ed-Flex will free our schools to make more of these critical choices for themselves. Ed-Flex costs American taxpayers nothing. And instead of sending another unfunded mandate down from Washington, it provides our states with what governors from both parties asked us for when they came to Washington last week--flexibility. I urge my colleagues to join me in supporting this important legislation.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I ask unanimous consent on behalf of the Governmental Affairs Committee to meet on Thursday, March 4, 1999, at 10 a.m. for a business meeting to consider legislation to reform the congressional budget process. subcommittee on investigations

Mr. THOMPSON

Mr. THOMPSON. Mr. President, Senate Standing Rule XXVI requires each committee to adopt rules to govern the procedures of the Committee and to publish those rules in the Congressional Record not later than March 1 of the first year of each Congress. On January 20, 1999, the Committee on Governmental Affairs held a business meeting during which the members of the Committee unanimously adopted the rules to govern the procedures of the Committee. In addition, a majority of members of the Committee's Permanent Subcommittee on Investigations adopted subcommittee rules of procedure on February 12, 1999. Consistent with Standing Rule XXVI, today I am submitting for printing in the Congressional Record a copy of the rules of the Senate Committee on Governmental Affairs and its Permanent Subcommittee on Investigations. The Rules follow: Rules of Procedure of the Committee on Governmental Affairs Pursuant to Rule XXVI, Sec. 2, Standing Rules of the Senate rule 1. meetings and meeting procedures other than hearings A. Meeting dates. The Committee shall hold its regular meetings on the first Thursday of each month, when the Congress is in session, or at such other times as the chairman shall determine. Additional meetings may be called by the chairman as he deems necessary to expedite Committee business. (Rule XXVI, Sec. 3, Standing Rules of the Senate.) B. Calling special Committee meetings. If at least three members of the Committee desire the chairman to call a special meeting, they may file in the offices of the Committee a written request therefor, addressed to the chairman. Immediately thereafter, the clerk of the Committee shall notify the chairman of such request. If, within 3 calendar days after the filing of such request, the chairman fails to call the requested special meeting, which is to be held within 7 calendar days after the filing of such request, a majority of the Committee members may file in the offices of the Committee their written notice that a special Committee meeting will be held, specifying the date and hour thereof, and the Committee shall meet on that date and hour. Immediately upon the filing of such notice, the Committee clerk shall notify all Committee members that such special meeting will be held and inform them of its date and hour. (Rule XXVI, Sec. 3, Standing Rules of the Senate.) C. Meeting notices and agenda. Written notices of Committee meetings, accompanied by an agenda, enumerating the items of business to be considered, shall be sent to all Committee members at least 3 days in advance of such meetings, excluding Saturdays, Sundays, and legal holidays in which the Senate is not in session. The written notices required by this Rule may be provided by electronic mail. In the event that unforeseen requirements or Committee business prevent a 3-day notice of either the meeting or agenda, the Committee staff shall communicate such notice and agenda, or any revisions to the agenda, as soon as practicable by telephone or otherwise to members or appropriate staff assistants in their offices. D. Open business meetings. Meetings for the transaction of Committee or Subcommittee business shall be conducted in open session, except that a meeting or series of meetings on the same subject for a period of no more than 14 calendar days may be closed to the public on a motion made and seconded to go into closed session to discuss only whether the matters enumerated in clauses (1) through (6) below would require the meeting to be closed, followed immediately by a record vote in open session by a majority of the Committee or Subcommittee members when it is determined that the matters to be discussed or the testimony to be taken at such meeting or meetings-- (1) will disclose matters necessary to be kept secret in the interests of national defense or the confidential conduct of foreign relations of the United States; (2) will relate solely to matters of Committee or Subcommittee staff personnel or internal staff management or procedure; (3) will tend to charge an individual with crime or misconduct, to disgrace or injure the professional standing of an individual, or otherwise expose an individual to public contempt or obloquy or will represent a clearly unwarranted invasion of the privacy of an individual; (4) will disclose the identity of an informer or law enforcement agent or will disclose any information relating to the investigation or prosecution of a criminal offense that is required to be kept secret in the interests of effective law enforcement; (5) will disclose information relating to the trade secrets of financial or commercial information pertaining specifically to a given person if-- (A) an Act of Congress requires the information to be kept confidential by Government officers and employees; or (B) the information has been obtained by the Government on a confidential basis, other than through an application by such person for a specific Government financial or other benefit, and is required to be kept secret in order to prevent undue injury to the competitive position of such person; or (6) may divulge matters required to be kept confidential under other provisions of law or Government regulations. (Rule XXVI, Sec. 5(b), Standing Rules of the Senate.) Notwithstanding the foregoing, whenever disorder arises during a Committee or Subcommittee meeting that is open to the public, or any demonstration of approval or disapproval is indulged in by any person in attendance at any such meeting, it shall be the duty of the chairman to enforce order on his own initiative and without any point of order being made by a member of the Committee or Subcommittee; provided, further, that when the chairman finds it necessary to maintain order, he shall have the power to clear the room, and the Committee or Subcommittee may act in closed session for so long as there is doubt of the assurance of order. (Rule XXVI, Sec. 5(d), Standing Rules of the Senate.) E. Prior notice of first degree amendments. It shall not be in order for the Committee, or a Subcommittee thereof, to consider any amendment in the first degree proposed to any measure under consideration by the Committee or Subcommittee unless a written copy of such amendment has been delivered to each member of the Committee or Subcommittee, as the case may be, and to the office of the Committee or Subcommittee, at least 24 hours before the meeting of the Committee or Subcommittee at which the amendment is to be proposed. The written copy of amendments in the first degree required by this Rule may be provided by electronic mail. This subsection may be waived by a majority of the members present. This subsection shall apply only when at least 72 hours written notice of a session to mark-up a measure is provided to the Committee or Subcommittee. F. Meeting transcript. The Committee or Subcommittee shall prepare and keep a complete transcript or electronic recording adequate to fully record the proceeding of each meeting whether or not such meeting or any part thereof is closed to the public, unless a majority of the Committee or Subcommittee members vote to forgo such a record. (Rule XXVI, Sec. 5(e), Standing Rules of the Senate.) rule 2. quorums A. Reporting measures and matters. A majority of the members of the Committee shall constitute a quorum for reporting to the Senate any measures, matters or recommendations. (Rule XXVI, Sec. 7(a)(1), Standing Rules of the Senate.) B. Transaction of routine business. One-third of the membership of the Committee shall constitute a quorum for the transaction of routine business, provided that one member of the minority is present. For the purpose of this paragraph, the term ``routine business'' includes the convening of a meeting and the consideration of any business of the Committee other than reporting to the Senate any measures, matters or recommendations. (Rule XXVI, Sec. 7(a)(1), Standing Rules of the Senate.) C. Taking testimony. One member of the Committee shall constitute a quorum for taking sworn or unsworn testimony. (Rule XXVI, Sec. 7(a)(2) and 7(c)(2), Standing Rules of the Senate.) D. Subcommittee quorums. Subject to the provisions of sections 7(a)(1) and (2) of Rule XXVI of the Standing Rules of the Senate, the Subcommittees of this Committee are authorized to establish their own quorums for the transaction of business and the taking of sworn testimony. E. Proxies prohibited in establishment of quorum. Proxies shall not be considered for the establishment of a quorum. rule 3. voting A. Quorum required. Subject to the provisions of subsection (E), no vote may be taken by the Committee, or any Subcommittee thereof, on any measure or matter unless a quorum, as prescribed in the preceding section, is actually present. B. Reporting measures and matters. No measure, matter or recommendation shall be reported from the Committee unless a majority of the Committee members are actually present, and the vote of the Committee to report a measure or matter shall require the concurrence of a majority of those members who are actually present at the time the vote is taken. (Rule XXVI, Sec. 7(a)(1) and (3), Standing Rules of the Senate.) C. Proxy voting. Proxy voting shall be allowed on all measures and matters before the Committee, or any Subcommittee thereof, except that, when the Committee, or any Subcommittee thereof, is voting to report a measure or matter, proxy votes shall be allowed solely for the purposes of recording a member's position on the pending question. Proxy voting shall be allowed only if the absent Committee or Subcommittee member has been informed of the matter on which he is being recorded and has affirmatively requested that he be so recorded. All proxies shall be filed with the chief clerk of the Committee or Subcommittee thereof, as the case may be. All proxies shall be in writing and shall contain sufficient reference to the pending matter as is necessary to identify it and to inform the Committee or Subcommittee as to how the member establishes his vote to be recorded thereon. (Rule XXVI, Sec. 7(a)(3) and 7(c)(1), Standing Rules of the Senate.) D. Announcement of vote. (1) Whenever the Committee by roll call vote reports any measure or matter, the report of the Committee upon such a measure or matter shall include a tabulation of the votes cast in favor of and the votes cast in opposition to such measure or matter by each member of the Committee. (Rule XXVI, Sec. 7(c), Standing Rules of the Senate.) (2) Whenever the Committee by roll call vote acts upon any measure or amendment thereto, other than reporting a measure or matter, the results thereof shall be announced in the Committee report on that measure unless previously announced by the Committee, and such announcement shall include a tabulation of the votes cast in favor of and the votes cast in opposition to each such measure and amendment thereto by each member of the Committee who was present at the meeting. (Rule XXVI, Sec. 7(b), Standing Rules of the Senate.) (3) In any case in which a roll call vote is announced, the tabulation of votes shall state separately the proxy vote recorded in favor of and in opposition to that measure, amendment thereto, or matter. (Rule XXVI, Sec. 7(b) and (c), Standing Rules of the Senate.) E. Polling. (1) The Committee, or any Subcommittee thereof, may poll (a) internal Committee or Subcommittee matters including the Committee's or Subcommittee's staff, records and budget; (b) steps in an investigation, including issuance of subpoenas, applications for immunity orders, and requests for documents from agencies; and (c) other Committee or Subcommittee business other than a vote on reporting to the Senate any measures, matters or recommendations or a vote on closing a meeting or hearing to the public. (2) Only the chairman, or a Committee member or staff officer designated by him, may undertake any poll of the members of the Committee. If any member requests, any matter to be polled shall be held for meeting rather than being polled. The chief clerk of the Committee shall keep a record of polls; if a majority of the members of the Committee determine that the polled matter is in one of the areas enumerated in subsection (D) of Rule 1, the record of the poll shall be confidential. Any Committee member may move at the Committee meeting following the poll for a vote on the polled decision, such motion and vote to be subject to the provisions of subsection (D) of Rule 1, where applicable.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I am pleased to support the Federal Financial Assistance Management Improvement Act of 1999. As a strong believer in our federalist system of government, I am pleased to be an original cosponsor of this legislation, which will cut red tape and waste in Federal grant and other assistance programs that impact State and local government, as well as nonprofit organizations. It is fitting that my good friend from Ohio, George Voinovich, is now providing leadership on this effort in the Senate. As a governor and Chairman of the National Governors' Association, George Voinovich strongly supported this bill from outside Congress. While we reported the bill out of the Governmental Affairs Committee and passed it through the Senate last year, unfortunately it did not become law. It's time to get the job done. This legislation will improve the performance of Federal grant and other assistance programs by streamlining their application, administration, and reporting requirements for grant recipients--including State, local and tribal governments and nonprofit organizations. The Federal agencies, with guidance from the Office of Management and Budget, would develop plans within 18 months to streamline application, administrative and reporting requirements, develop uniform applications for related programs, develop and expand the use of electronic applications and reporting via the Internet, demonstrate interagency coordination in simplifying requirements for cross-cutting programs, and set annual goals to further the purposes of the Act. Agencies would then consult with outside parties in developing their plans. The agencies would submit their plans and annual reports to the Director of OMB and to Congress, and they could be made a part of other management reports required under law. In addition to overseeing and coordinating agency activities, OMB would develop more common rules to cut across programs and would develop a release form to allow grant information to be shared across programs. This legislation has been endorsed by many organizations representing our State and local government partners, including the National Governors' Association, the National Conference of State Legislatures, the National League of Cities, the Council of State Governments, and the National Association of Counties. It is a good government, common sense initiative. Let's pull together and pass this bill into law.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I am pleased to support the Federal Financial Assistance Management Improvement Act of 1999. As a strong believer in our federalist system of government, I am pleased to be an original cosponsor of this legislation, which will cut red tape and waste in Federal grant and other assistance programs that impact State and local government, as well as nonprofit organizations. It is fitting that my good friend from Ohio, George Voinovich, is now providing leadership on this effort in the Senate. As a governor and Chairman of the National Governors' Association, George Voinovich strongly supported this bill from outside Congress. While we reported the bill out of the Governmental Affairs Committee and passed it through the Senate last year, unfortunately it did not become law. It's time to get the job done. This legislation will improve the performance of Federal grant and other assistance programs by streamlining their application, administration, and reporting requirements for grant recipients--including State, local and tribal governments and nonprofit organizations. The Federal agencies, with guidance from the Office of Management and Budget, would develop plans within 18 months to streamline application, administrative and reporting requirements, develop uniform applications for related programs, develop and expand the use of electronic applications and reporting via the Internet, demonstrate interagency coordination in simplifying requirements for cross-cutting programs, and set annual goals to further the purposes of the Act. Agencies would then consult with outside parties in developing their plans. The agencies would submit their plans and annual reports to the Director of OMB and to Congress, and they could be made a part of other management reports required under law. In addition to overseeing and coordinating agency activities, OMB would develop more common rules to cut across programs and would develop a release form to allow grant information to be shared across programs. This legislation has been endorsed by many organizations representing our State and local government partners, including the National Governors' Association, the National Conference of State Legislatures, the National League of Cities, the Council of State Governments, and the National Association of Counties. It is a good government, common sense initiative. Let's pull together and pass this bill into law.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I rise today to honor and recognize an outstanding University of Tennessee Lady Volunteers basketball player, senior Chamique Holdsclaw. Last week, Chamique Holdsclaw was recognized as the outstanding amateur athlete in the nation when she was awarded the 1998 James E. Sullivan Memorial Award. Chamique is the first female basketball player--and only the third basketball player, male or female--to win the award in its 69- year history. It comes as no surprise to those of us from Tennessee that Chamique, the second University of Tennessee athlete in two years to take the honor, follows former Volunteer quarterback Peyton Manning. Other winners of this prestigious award include Bill Walton, Bill Bradley, Bonnie Blair, Florence Griffith-Joyner and Bruce Jenner. Mr. President, Chamique Holdsclaw is one of the finest college basketball players in America, who time after time has displayed grace under pressure, sinking last-minute, game-winning shots. She has led both her high school and college teams to national basketball championships. And of course we all remember last year when she led the Lady Volunteers to a 39-0 record and a third straight national title. Chamique has Tennessee on track for a fourth straight title this season. To measure the impact this Tennessee senior has had on women's sports over the past four years, you did not have to look any farther than across from the Lady Vols bench last week, where former Sullivan winner Jackie Joyner-Kersee sat. After meeting Chamique at an awards ceremony two weeks ago, Joyner-Kersee was so impressed that she flew in from St. Louis for Chamique's final regular-season home game, in which she scored 25 points and pulled down 11 rebounds. Regardless of what greatness Chamique Holdsclaw achieves in her pro career, her time at Tennessee has clearly changed the game. Though plenty of women's college basketball legends came before her, Chamique became her sport's first national superstar. She took hold of that spotlight, thrived under the pressure it brought with it, and made history. Mr. President, the Sullivan Award recognizes athletes who have excelled in competition while exhibiting leadership, character and sportsmanship. Chamique Holdsclaw embodies each of these qualities and is the kind of person we should encourage all our young people to emulate. Her determination and dedication to excellence remind us that we each have the power to make a positive difference.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, today Senator Frist and I are introducing a bill to establish the Howard Baker School of Government on the campus of the University of Tennessee, Knoxville. The University of Tennessee has a long and proud tradition of providing the highest quality education to students from Tennessee and around the world. The Howard Baker School of Government would be but the latest installment in this institution's ongoing commitment to preparing its student body by giving them the tools and knowledge necessary to succeed in the pursuit of their dreams. With this said, I can think of no greater tribute to our friend and colleague, the former Majority Leader of this body, Senator Howard Baker, than to further his legacy of promoting the best in our political system by establishing this School in his honor. In many ways, Senator Baker's entire life has been a lesson in public service. Those of us from his home state of Tennessee have matured in his shadow and have been inspired by his vision. His positive influence has not, however, been limited by Tennessee's borders. Senator Baker is one of those rare individuals whose leadership has lifted the entire nation. Creating this School of Government in his name would not only be a tribute to a man but a logical extension of that man's continuing lifework. In 1966, Senator Baker became the first Republican popularly elected to the United States Senate in Tennessee's history. This was not because of a great rise in Tennessee's Republican population, but rather was an indication of Senator Baker's unique ability to reach out to people of different backgrounds with diverging views and spark in them that all-encompassing common vision--that we live together in a great nation that has an even greater future. Senator Baker served in this body from 1967 until January 1985, as Minority Leader from 1977 until 1981, and then as Majority Leader until his retirement. After leaving the Senate, Senator Baker served admirably as Chief of Staff to President Ronald Reagan and he continues to this day to provide us with a keen insight into the principles of true leadership. Throughout each phase of Senator Baker's life he has clearly demonstrated that statesmanship is not something relegated to our history books. It is alive and well. His continuing example is a call to each of us that we can and should rise to the challenge of citizenship in a way that brings us together as a nation and further strengthens this great experiment called the United States. I can think of no better union than the ideals and example of Senator Howard Baker with the dedication to higher education of the University of Tennessee. The Howard Baker School of Government will be an institution each of us can be proud to have supported and one that will further the principles of good government to which each of us is committed.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, today Senator Frist and I are introducing a bill to establish the Howard Baker School of Government on the campus of the University of Tennessee, Knoxville. The University of Tennessee has a long and proud tradition of providing the highest quality education to students from Tennessee and around the world. The Howard Baker School of Government would be but the latest installment in this institution's ongoing commitment to preparing its student body by giving them the tools and knowledge necessary to succeed in the pursuit of their dreams. With this said, I can think of no greater tribute to our friend and colleague, the former Majority Leader of this body, Senator Howard Baker, than to further his legacy of promoting the best in our political system by establishing this School in his honor. In many ways, Senator Baker's entire life has been a lesson in public service. Those of us from his home state of Tennessee have matured in his shadow and have been inspired by his vision. His positive influence has not, however, been limited by Tennessee's borders. Senator Baker is one of those rare individuals whose leadership has lifted the entire nation. Creating this School of Government in his name would not only be a tribute to a man but a logical extension of that man's continuing lifework. In 1966, Senator Baker became the first Republican popularly elected to the United States Senate in Tennessee's history. This was not because of a great rise in Tennessee's Republican population, but rather was an indication of Senator Baker's unique ability to reach out to people of different backgrounds with diverging views and spark in them that all-encompassing common vision--that we live together in a great nation that has an even greater future. Senator Baker served in this body from 1967 until January 1985, as Minority Leader from 1977 until 1981, and then as Majority Leader until his retirement. After leaving the Senate, Senator Baker served admirably as Chief of Staff to President Ronald Reagan and he continues to this day to provide us with a keen insight into the principles of true leadership. Throughout each phase of Senator Baker's life he has clearly demonstrated that statesmanship is not something relegated to our history books. It is alive and well. His continuing example is a call to each of us that we can and should rise to the challenge of citizenship in a way that brings us together as a nation and further strengthens this great experiment called the United States. I can think of no better union than the ideals and example of Senator Howard Baker with the dedication to higher education of the University of Tennessee. The Howard Baker School of Government will be an institution each of us can be proud to have supported and one that will further the principles of good government to which each of us is committed.

Mr. THOMPSON

Mr. THOMPSON. In 1994, Paula Corbin Jones sued President Clinton for sexual harassment which she alleged he committed against her in 1991, when he was Governor of Arkansas. The Supreme Court of the United States permitted the lawsuit to proceed in 1997. Monica Lewinsky began work as a White House intern on July 10, 1995. At the time, she was twenty-one years old. She later worked in the Office of Legislative Affairs at the White House. In 1996, she left the White House for a job at the Department of Defense. The first day that Ms. Lewinsky spoke with President Clinton, November 15, 1995, she and the President engaged in sexual relations. Their sexual relationship lasted until 1997. The two also engaged in telephone sex at least seventeen times, and they exchanged numerous gifts. The two agreed to keep their relationship secret through the use of cover stories. Ms. Lewinsky, if discovered in the Oval Office, was to say that she was delivering papers, although her job duties never included delivering papers. Once she left the White House, her visits to the President were disguised as visits to Presidential secretary Betty Currie. The President told Ms. Lewinsky that she could return to the White House after the 1996 election had concluded. Although Ms. Lewinsky tried numerous times to regain employment at the White House, she was never able to do so. After being informed by a friend, Linda Tripp, that she would never be permitted to return to the White House, Ms. Lewinsky decided to seek employment in New York, initially receiving and rejecting a job offer with the United States Ambassador to the United Nations. She then decided to seek employment in New York in the private sector. On November 5, 1997, she met with Vernon Jordan, a prominent Washington lawyer and friend of President Clinton, to seek his assistance in securing such a position. This meeting was arranged by Ms. Currie. Mr. Jordan took no action to help her in November, and does not remember meeting her at this time. On December 5, 1997, attorneys for Ms. Jones notified the President's attorneys of their list of witnesses. That list included Ms. Lewinsky. Although she was unaware at the time that her name was on the Jones litigation witness list, Lewinsky coincidentally decided to terminate her relationship with the President the following day, but was unable to see him at the White House. President Clinton and Ms. Lewinsky initially exchanged angry words that day over the telephone, but later that day, she came to the White House at his invitation. During this meeting, Ms. Lewinsky told the President that Mr. Jordan had not appeared to have done anything to help her in her job search. In a conversation Ms. Lewinsky described as ``sweet'' and ``very affectionate,'' he told her that he would speak to Mr. Jordan about her job situation. The President did not at that time inform Ms. Lewinsky that her name was on the witness list. Ms. Currie again called Mr. Jordan, and on December 8, 1997, Ms. Lewinsky called to set another appointment with Mr. Jordan for December 11. Although Ms. Lewinsky provided Mr. Jordan with a list of corporations in which she was interested in obtaining employment, Mr. Jordan determined based on his own contacts which companies he would pursue on Ms. Lewinsky's behalf. Following his meeting with Ms. Lewinsky, acting by his own admission at the behest of the President, Jordan called three corporate executives in New York. He also called the President to report on his efforts on behalf of Ms. Lewinsky. December 11, 1997 was also the date on which Judge Susan Webber Wright, the presiding judge in the Jones litigation, issued an order permitting Jones' attorneys to pursue discovery concerning the names of any state or federal employees with whom the President had had sexual relations, proposed sexual relations, or sought to have sexual relations. On December 17, 1997, between 2:00 and 2:30 a.m., the President telephoned Ms. Lewinsky. He informed her that Ms. Currie's brother had been killed, as well as that her name was on the Jones witness list. The President indicated that if Ms. Lewinsky were subpoenaed, she should let Ms. Currie know. He also told her that she might be able to sign an affidavit in that event to avoid testifying. In addition, he suggested that she could say that she was coming to see Betty or was bringing him papers. Ms. Lewinsky says that she understood implicitly that she was to continue to deny their relationship. Ms. Lewinsky was subpoenaed to testify in the Jones litigation on December 19, 1997. The subpoena also required Ms. Lewinsky to produce all gifts that she had received from the President, and enumerated one specific gift that the President had given Ms. Lewinsky, a hatpin. Because Ms. Currie was in mourning, Lewinsky called Jordan, who invited her to his office. She was in a highly emotional state, and that fact, combined with her statements in the conversation that demonstrated her personal fascination with the President, prompted Jordan to ask whether she, a person for whom he was providing job assistance, had had sexual relations with the President. He says she denied such relations. Jordan took a telephone call from the President during that meeting, and made plans to see him that night. Jordan later called Frank Carter, a Washington lawyer, to arrange a meeting at which he would refer Ms. Lewinsky to Mr. Carter as a client. Notwithstanding Ms. Lewinsky's denial of sexual relations with the President, Jordan asked President Clinton that same evening the same question. The President also denied having had sexual relations with Ms. Lewinsky. Jordan also conveyed a number of Lewinsky's statements to the President, and informed Clinton that Lewinsky had received a subpoena to testify in the Jones case. Following a discussion in which Lewinsky informed Jordan of the nature of the telephone calls she had had with the President, Jordan drove Lewinsky to a meeting at Mr. Carter's office on December 22. The President met with Ms. Lewinsky on December 28, 1997, at which time they again exchanged gifts. They discussed the subpoena, and she expressed concern, which the President shared, about the specific enumeration of the hatpin, since that suggested that someone knew details of their relationship. Ms. Lewinsky then suggested taking the gifts out of her apartment or giving them to Ms. Currie. The President responded, ``I don't know'' or ``Let me think about that.'' Later that same day, Ms. Lewinsky's consistent recollection is that Ms. Currie called her and stated, ``I understand you have something to give me'' or ``the President said you have something to give me.'' Ms. Currie later drove to Ms. Lewinsky's apartment, picked up a box containing gifts the President had given Ms. Lewinsky, and hid that box under her bed without asking any questions. On December 31, 1997, Jordan and Lewinsky had breakfast. Lewinsky, fearing that her relationship with the President would become known and wanting to ensure that she not appear responsible for its becoming known, told Jordan that she possessed notes she had addressed to the President that suggested the nature of their relationship. According to Lewinsky, Jordan told her to dispose of those notes. Jordan initially denied that he ever had breakfast with Lewinsky, but later recalled having done so when shown the receipt. But he denied ever telling Lewinsky to destroy any notes. Ms. Lewinsky pursued filing an affidavit to obviate the need for her to testify in the Jones case. On January 6, 1998, she communicated to Mr. Jordan concerns she had about the affidavit that Mr. Carter had drafted for her. Jordan telephoned Carter with her suggestions. Although Mr. Jordan denies the allegations, Ms. Lewinsky contends that she informed Jordan about the details of Carter's proposed affidavit, and that she and Jordan made changes to it prior to her signing it. Lewinsky also spoke with the President about Carter's questions to her about how she obtained her Pentagon job. The President told her that she ``could always say that the people in Legislative Affairs got it for you or helped you get it.'' On January 7, 1998, Lewinsky signed an affidavit denying sexual relations with the President. She later testified that the affidavit was false. She showed Jordan the affidavit, and Jordan spoke with the President after conferring with Ms. Lewinsky about the changes. Lewinsky testified that she believed that the President would be satisfied with any affidavit that Jordan approved. The following day, Lewinsky was interviewed at a company that Jordan had called on her behalf. Believing that the interview had proceeded poorly, she called Jordan, who then called the head of the holding company of the firm with which she had interviewed. Jordan asked that a second interview be granted Lewinsky. She interviewed again the next day, and was made an informal job offer. Jordan testified that his ``magic'' was responsible for that offer. Lewinsky informed Jordan of her success, and he telephoned Ms. Currie to notify her: ``Mission accomplished.'' He later informed the President. The President was scheduled to be deposed in the Jones litigation on January 17, 1998. The President knew that one of the issues was his relationship with Ms. Lewinsky. For the affidavit to successfully deflect questions to the President concerning that relationship, the affidavit would have had to have been filed in time for the court to consider it and for the President's lawyers to see it before the deposition. The President's lawyers called Ms. Lewinsky's attorney once on January 14, twice on January 15, and once on January 16. On the 15th, Lewinsky's lawyer, Mr. Carter, sent President Clinton's counsel a copy of the affidavit. Mr. Carter also called the court twice on that day to ensure that the affidavit could be filed on January 17. During his deposition, President Clinton made numerous false statements while under oath. These included the sexual nature of his relationship with Ms. Lewinsky, and whether they had exchanged gifts. He relied on the same cover stories as he had discussed with Ms. Lewinsky. The President's lawyer used Ms. Lewinsky's affidavit in an attempt to deflect questions about the President's relationship with her, specifically stating that the President had already seen that affidavit. As the President appeared to be paying close attention, he did not contradict his attorney when he represented to the court that ``there is absolutely no sex of any kind in any manner, shape or form with President Clinton. . . .'' And he testified, when asked by his attorney, that Ms. Lewinsky's affidavit was absolutely true. However, the judge insisted that President Clinton answer additional questions about his relationship with Ms. Lewinsky. These questions were asked based on the judge's peculiar ruling that used only one-third of a standard courtroom definition of ``sexual relations'' and the plaintiff's attorneys' insistence in using that truncated definition as a reference for questions they posed to the President about the nature of his relationship with Ms. Lewinsky, rather than asking specific questions concerning what had occurred. In six instances, the President answered questions by referencing Betty Currie, such as in using the cover story that Ms. Lewinsky had come to the White House to visit Ms. Currie, and on one occasion, expressly stated that his questioners should ``ask Betty.'' Indeed, Ms. Jones' attorneys later placed Ms. Currie's name on their witness list. After the deposition, at 7 p.m. that evening, the President called his secretary, Betty Currie, at home. She later testified that she could not remember the President ever calling her at home so late on a Saturday. In that conversation, he asked Ms. Currie to see him in the Oval Office the following day, a Sunday. This was also an unusual occurrence. While in the Oval Office, and contrary to the admonition from the Jones case judge not to discuss his deposition testimony with anyone, the President made the following statements to Ms. Currie: (1) ``I was never really alone with Monica, right?'' (2) ``You were always there when Monica was there, right?'' (3) ``Monica came on to me, and I never touched her, right?'' (4) ``You could see and hear everything, right?'' (5) ``She wanted to have sex with me, and I could not do that.'' Once the President met with Ms. Currie on January 18, Ms. Currie began to seek Ms. Lewinsky. She paged Ms. Lewinsky four times that night. Later than 11:00 p.m. that evening, the President called Ms. Currie at home to determine if she had yet reached Ms. Lewinsky. She had not. In a period of less than two hours on the morning of the 19th, Ms. Currie paged Ms. Lewinsky an additional eight times. The President then called Mr. Jordan, who called the White House three times, paged Ms. Lewinsky, and called Mr. Carter, all within twenty-four minutes of receiving the President's call. Mr. Jordan called Mr. Carter again that afternoon and learned that Mr. Carter had been replaced as Ms. Lewinsky's attorney. Mr. Jordan then called the White House six times in the next twenty-four minutes trying to relay this information. Mr. Jordan called Mr. Carter again, and then called the White House again. On January 20, the White House learned that a story about the President's relationship with Ms. Lewinsky would appear in the next day's edition of The Washington Post. On January 21, the President told his chief of staff and two deputies that he did not have sexual relations with Ms. Lewinsky. He later told one of those deputies, John Podesta, that he had not had oral sex with Ms. Lewinsky. Later on January 21, the President told his aide, Sidney Blumenthal, that Lewinsky had made a sexual demand on him, and that he rebuffed her. The President told Blumenthal that Lewinsky had threatened him. President Clinton also indicated that Lewinsky said that she was known among her peers as the stalker, that she hated it, and that she would say that she had an affair with the President whether it was true or not, so that she would not be known as the stalker any more. He also told Blumenthal that he felt like a victim who could not get out the truth. Blumenthal later testified that he believes the President lied to him. The President testified that he was aware at the time that he made his statements that his aides might be summoned before the grand jury. The President also met with his political consultant, Dick Morris, on January 21. The President authorized that Morris conduct an overnight poll measuring potential public reaction to the affair. The poll concluded that the American people would forgive the President for adultery, but not for perjury or obstruction of justice. The President then indicated that ``we just have to win, then.'' The President's lawyers could not answer senators' questions why such a poll had been undertaken if the President had not committed any of these acts. Shortly after the President met with Mr. Blumenthal, press reports began to appear that, quoting White House sources, characterized Ms. Lewinsky as a stalker, and as an ``untrustworthy climber obsessed with the President.'' Although Mr. Blumenthal in his Senate deposition denied any knowledge of how White House sources were attributed to these stories, one journalist by the time of this writing has sworn to an affidavit stating that Mr. Blumenthal made such characterizations to him. A second similar affidavit has also been filed, corroborating the first one. Ultimately, Ms. Lewinsky was granted immunity from prosecution by the independent counsel. The independent counsel received from Ms. Lewinsky a dress that according to DNA testing was stained by the President's semen. On August 17, 1998, the President testified before the grand jury convened by the independent counsel. In a prepared statement, the President made a number of false statements. He stated that he engaged in inappropriate conduct with Ms. Lewinsky in 1996 and 1997, whereas the conduct actually began in 1995, when she was an intern. Based on Ms. Lewinsky's testimony and the dress, he appears to have testified untruthfully about whether he engaged in sexual relations even as that term had been defined at his deposition in the Jones case. And he also testified that he was not paying attention to his attorney when the attorney described the affidavit; that his relationship with Ms. Lewinsky had originally begun as a ``friendship;'' that he made the statements to Ms. Currie after his deposition in an effort to refresh his recollection; and that he told his aides statements that were true about his relationship with Ms. Lewinsky. Nonetheless, when testifying before the grand jury, the President no longer made a number of the assertions that he had made in the deposition, including denying that he was ever alone with Ms. Lewinsky. With respect to his deposition testimony, the President told the grand jury that his ``goal in this deposition was to be truthful, but not particularly helpful . . . I was determined to walk through the mine field of this deposition without violating the law, and I believe I did.'' The Independent Counsel filed a report with the House of Representatives that referred allegations of possible impeachable offenses. The House of Representatives voted to pass two articles of impeachment against President Clinton, for perjury before the grand jury and for obstruction of justice. Two other articles of impeachment, which had been based on perjury in his deposition in the Jones case and misstatements to the House in response to questions propounded to the President by the House of Representatives, failed to pass the House. ``HIGH CRIMES AND MISDEMEANORS'' The most fundamental question, against which the President's actions must be measured, is ``what constitutes an impeachable offense?'' The Constitution makes impeachable ``treason, bribery and other high crimes or misdemeanors.'' The Constitution also says that upon conviction in the Senate the President ``shall be removed.'' Therefore, the questions becomes, in effect, ``what actions constitute grounds for removal?'' It should be noted at the outset that what we have in effect is a ``mandatory sentence'' wherein if there is a finding of guilt then one particular sentence must be imposed--in this case removal from office. However, unlike judges in a criminal case, the Senate may take into consideration the ``punishment'' in determining guilt. Some have contended that the President may be guilty of high crimes and misdemeanors, but his actions may not be sufficient for removal. I believe the better analysis is that the Senate may conclude that the President's conduct is not sufficient for removal and that that determination, by definition, means that the President is not guilty of high crimes and misdemeanors. I believe that this analysis is important in understanding the scope of our discretion and helps us get away from the notion that there is an objective standard for high crimes and misdemeanors if we could only find it. Historical analysis covering over six hundred years reveals that there is no ``secret list'' of high crimes and misdemeanors, but rather our forefathers perpetuated a framework that allows for a certain amount of subjectivity which may encompass changing times and differing circumstances. Such a conclusion emerges from an examination of English law, original state Constitutions, our federal Constitutional Convention, the ratification debates, American impeachment precedents and scholarly commentary. The phrase ``high crimes and misdemeanors'' can be traced back to the thirteen hundreds in England. It was clear from the outset that the phrase covered serious misconduct in office whether or not the conduct constituted a crime. Commentators say that the English impeachment tradition covered political crimes against the state and injuries to the state. Beyond that, it is difficult to glean covered conduct from the English tradition. Apparently there was only one discussion during the Constitutional Convention that dealt with the phrase high crimes and misdemeanors and that occurred on September 8, 1787. As reported out of Committee, impeachable offenses included only ``treason and bribery.'' Mason wanted to add ``maladministration,'' which was also contained in many state constitutions. Madison was under the impression that such language would leave the President at the mercy of the Senate. Madison relented and we wound up with the phrase as we have it today. The founding fathers quite clearly rejected impeachment for Congressional disapproval of policy. Impeachable offenses were ``political'' offenses and, as under English law, not necessarily criminal. Other guidance that can be derived from the Convention is the fact that the founders were acutely aware of their rejection of bills of attainder as existed in the English system and, therefore, they thought that impeachable offenses should be something that any reasonable man could anticipate. He should not be punished for some crime made up after the fact. Also, there was to be a requirement for ``substantiality.'' This mechanism was not designed for trivial offenses. We cannot determine the precise intent of the framers because their deliberations were in secret and nothing was printed from their deliberations. They intended for the ratifiers at the state Conventions to be the more authoritative voice for interpretation of the provisions in the Constitution. It is fair to conclude that the attitude of the ratifiers was reflected to a certain extent in the Federalist papers. The most definitive comments concerning impeachment were by Hamilton in Federalist 65 wherein he stated: The subjects of [impeachment] are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may be with peculiar propriety denominated political, as they relate chiefly to injuries done immediately to the society itself. The ratifiers at the North Carolina convention spoke in terms of serious injuries to the Federal government. James Iredell, later to become an Associate Justice on the Supreme Court, stated that impeachment was ``calculated to bring [great offenders] to punishment for crimes which it is not easy to describe but which everyone must be convinced as a high crime and misdemeanor against governments . . . the occasion for its exercise will arise from acts of great injury to the community.'' He gave as an example of an impeachable offense the giving of false information to the Senate. Impeachment was not for ``want of judgment'' but rather to hold him responsible for ``willfully abusing his trust.'' Iredell also called attention to the complexity if not impossibility of defining the scope of impeachable offenses with any more precision than the above. And the ratifiers at the Virginia Convention clearly agreed that a President could be impeached for non- indictable offense. There was continued discussion and debate after ratification concerning the impeachment process. James Madison contended that the wanton removal of meritorious officers would subject a President to impeachment and removal from office. Forty years later, Justice Story, in his Commentaries insisted that ``not every offence'' is a high crime and misdemeanor, that ``many offences, purely political . . . have been held to be within the reach of parliamentary impeachments, not one of which is in the slightest manner alluded to in our statute book,'' that ``the only safe guide'' in determining ``high crimes and misdemeanors'' ``must be the common law,'' and left open the possibility that actions a civil officer took that were unconnected to his office might be properly the subject of impeachment. Therefore, it seems that despite the framers' and ratifiers' incomplete discussion, our inability to put our hands on documentation reflecting some of their thoughts, and the fact that perhaps they simply did not think of some of the problems that might arise in the future, we see a certain framework develop--certain perimeters within which our decision should be made. The Senate's own precedents do not change this evaluation because they are not terribly instructive either. In impeachment cases, the Senate has convicted on seven occasions, acquitted on five, dismissed two cases on jurisdictional grounds and one case was withdrawn because of resignation. An acquittal serves very little value as precedent beyond the facts of the case since an acquittal can be based on any number of grounds (jurisdictional, failure to prove the factual allegations, offenses not rising to the level of impeachable conduct, etc.) and the motivation for the vote is not reflected when the verdict is rendered ``not guilty.'' There is little more help derived from convictions, in terms of precedential value. There has only been one impeachment trial for a President, that of Andrew Johnson, and that, of course, resulted in an acquittal. A large majority of the remainder of the cases have been those of federal judges. The question has arisen whether judicial impeachments are to be considered by the same standards as presidential impeachments. It seems to me that certainly the application of the standard of ``high crimes and misdemeanors'' for a president must differ from that of a judge. Removing the President removes the elected head of the nation. Removing a single judge does not carry the same implications for the country. And while a President should act according to the highest standards of probity, it is quite easy to imagine circumstances that would warrant judicial impeachment that would not justify presidential impeachment, such as making official decisions based purely on political considerations. It is also possible that certain crimes would be impeachable if a judge committed them, because of the specific nature of the judicial office in our system of government, but would not be impeachable for a President. It has been argued that the standard should be different for presidents than judges because the former serves for a fixed term and the latter serve ``during good behavior.'' I do not share that view. The standard itself is the same for each category: treason, bribery, and other high crimes and misdemeanors. But the difference in tenure is relevant in a way. Because impeachment is not punishment and is political, the Framers vested the process in the legislative branch. Prosecution for crimes was lodged in the judiciary. Thus, a President, who cannot be prosecuted while in office, can be impeached and removed from office before he faces criminal prosecution. While a judge can also be impeached and removed before being convicted of a crime, it is also the case that criminal punishment can be, and has been, imposed on sitting judges. But since courts were expressly not given the power to remove civil officers, federal judges who have been criminally convicted and have refused to resign have continued to draw their salary ``during good behavior,'' i.e., until they were impeached. That is the only significance with respect to impeachment of judges and of presidents based on their differing terms of service. Scholars have looked to the purposes to be served by the impeachment process as well as history in making their own analysis as to the meaning ``high crimes and misdemeanors.'' For Charles Black they would include offenses (1) which are extremely serious, (2) which in some way corrupt or subvert the political and governmental process, and (3) which are plainly wrong in themselves to a person of honor or to a good citizen regardless of words on the statute books. Also qualifying according to Professor Black would be ``serious offense against the nation or its governmental or political processes.'' Furthermore, he would include purely personal actions that would make a President unviable as a national leader. Murder, of course, would be the prime example here. He would also include a totally different category of offenses which seriously threaten the order of political society as to make dangerous the continuation in power of the President. Finally, he would include actions that would ``undermine government and confidence in government'' such as serious tax fraud. Professor Michael J. Gerhardt on the issue of purely personal conduct of the President states: ``Even if such a crime were unrelated to the President's Constitutional duties, his criminal act considerably cheapens the Presidency, destroys his credibility with the other branches (and other nations, for that matter), and shows such lack of respect for human life and disdain for the law (which he has sworn to enforce faithfully) that Congress could reasonably conclude that he had seriously breached his trust and no longer deserves to hold office.'' Again, murder was the easy example. However, he contends further that an official may be impeached for conduct in office that does not relate to his or her former responsibilities if an office holder violates his public trust and loses the confidence of the people. Then he must forfeit the privilege of holding at least his or her present office. ``In this context, conduct that may plainly be unrelated to the responsibilities of a particular office may still relate to an official's capacity to fulfill the functions of that office and to hold the people's trust.'' He gives the example of income tax fraud. Gerhardt points out that not all statutory crimes demonstrate unfitness for office, but that on the other hand, there are some indictable offenses for which certain high level government officials may be impeached. Among them are offenses which ``demonstrate serious lack of judgment or disdain for the law and the commission lowers respect for the office.'' In other words, there are certain statutory crimes, that, if committed by public officials, reflect, in Congress' estimation such lapses of judgment, breaches of the public trust and disregard for the public welfare, the law, and the integrity or reputation of the office held, that the occupant may be impeached. What I derive from this, is that there is no ``holy grail'' of impeachable offenses. The framers provided the Senate with a framework within which to operate and history provides us with a map, but not a destination. Our conclusions must depend upon the particular circumstances of the case, the nature of the act or acts involved, and their effects on society or integral parts of our political structure. Today we are faced with an unprecedented situation. The President engaged in inappropriate personal conduct. It had nothing to do with his official duties, but it did involve a federal employee under his supervision, government time and government facilities. In an attempt to conceal and cover up that activity, he lied, misled and helped conceal evidence both physical and testimonial in a court proceeding. In doing so he elicited the help of other government employees. Therefore, the subject matter was essentially private, but the forum, a United States court, became public. One side says that he ``only lied about sex,'' and it had nothing to do with his official duties, therefore, it ``clearly does not rise to the level of an impeachable offense.'' The other side says that any perjury and any obstruction of justice ``clearly does rise to the level of an impeachable offense.'' I do not think that either position is consistent with history or proper analysis. For example, I agree with Professor Black that not every imaginable act that might technically constitute obstruction of justice would necessarily be impeachable. On the other hand, opponents of conviction in the present case, have raised the bar for impeachment to unreasonable heights. Usually they concede that an impeachable offense does not have to be a crime, but often it is maintained that the abuse of power has to come from his public position such as Nixon's abuse of the CIA or FBI. Of course, this immediately runs headlong into the murder hypothetical and many other hypotheticals of serious, although totally personal, conduct as well. They then make the further argument that the violation has to be ``an offense against the state.'' While I agree that an offense against the state is one of the categories of offenses that impeachment was primarily designed to cover, offenses against the state's governmental and political processes, including the court system, as well as attempts to subvert them, are also impeachable. Besides, it would seem to me, that subversion or serious damage to our governmental institutions constitute offenses against the state. They also point out that one of the purposes of impeachment is to protect the nation from the offender President. I agree again that this may be one of the purposes of impeachment. However, it is not the only purpose, and protection of the public is not always a requirement. If an offense has been laid bare and totally exposed, and the President is completely incapable of continuing his conduct, this lack of imminent threat to the nation does not necessarily mean that he should not and cannot be impeached. President Nixon probably would not have been forced from office if that were the only criteria. Opponents of conviction also overlook the fact that we may look to the effects of the President's conduct. Actions, even private actions, that serve to undermine the government or the people's confidence in the government or the President, may also be impeachable. In other words, opponents of impeachment rightly point out some of the categories that are applicable in impeachment cases, but they set them forth as exclusive when, in fact, they are not. The impeachment bar has been raised even higher most recently by respected commentators in the media. The New York Times editorial page, for example, takes a position that the President's action must ``threaten the welfare or stability of the state.'' On another occasion, they stated that the President's actions must ``show some fundamental harm to the security interest or stability of the state or some attempt to undermine the Constitution.'' The problem with this is that there is absolutely no authority to support such a contention. Such a theory relies exclusively upon the ``protect the nation'' theory of impeachment. The founders certainly did not mean that the President had to be on the verge of throwing the nation into chaos or endangering national security in order to be impeached. It is extremely important that we refrain from latching onto a definition of ``high crimes and misdemeanors'' simply because it leads us inexorably to a conclusion which we may desire. Clearly, a President's offense or offenses must be serious and/or have serious consequences. Also, while they do not have to be crimes, my own opinion is that in most cases they will be crimes. They must be crimes against the state, but we cannot adopt an unreasonable restriction of that term. The President does not have to order tanks to move on the J. Edgar Hoover building. Offenses against the state can include activity which will undermine our governmental institutions. How can we say that bribing a judge to effect an outcome in a law suit involving a President's purely personal conduct constitutes an impeachable offense, but say that insinuating perjury into that same law suit to effect the same outcome is clearly not impeachable? And while it is true that the founders meant to cover ``public'' behavior, I believe they also meant to cover behavior that has a negative effect on the public if it is of sufficient gravity. Furthermore, if the President's conduct poses a threat and danger to a country, that certainly is a legitimate (though not exclusive) consideration. If that same conduct serves to undermine the President's credibility and moral authority, that could also pose a danger to the country and is similarly a legitimate consideration. And, again his conduct does not necessarily have to deal with his office. In the Constitution, a named offense is bribery (treason, bribery or other high crimes and misdemeanors), and bribery itself does not necessarily have to do with the President's official capacity, if the President is making the bribe. I believe that the founders did not intend to make our job easy. They provided no list of offenses. They refused to spare us from the difficult analysis that we must now go through. We must take into consideration the offense or offenses, the capacity in which they were committed, the effect on our public institutions, the effect on our people and our people's attitude toward the Presidency and our other institutions, whether the President's conduct was one or more isolated events, or a pattern of conduct, the period of time over which the conduct was carried out and ultimately decide whether in view of all of these circumstances, it is in the best interest of the country to remove this President. The significance of a ``pattern of conduct'' is recognized by John R. Labovitz in his book Presidential Impeachment. Labovitz concluded that focusing on whether the President has committed ``an impeachable offense'' is of limited usefulness, since few individual crimes warrant removal, such as a single act of treason or a single act of bribery. Even in the case of President Nixon, ``[i]t was necessary to combine distinct actions into a pattern or course of conduct to establish grounds for removal from office.'' As he also wrote: The concept of an impeachable offense guts an impeachment case of the very factors--repetition, pattern, coherence-- that tend to establish the requisite degree of seriousness warranting the removal of a president from office. Just as a recidivist deserves a more stringent sentence than a first offender, so presumably a repeated offender is more likely to deserve removal from an office of public trust, and especially the highest trust in the land. . .. [I]t is necessary to take a less divided view of the charges. Because the remedy is not additive, the offenses must be considered cumulatively in deciding whether or not it should be imposed. The House must decide whether or not to prosecute an impeachment on the basis of the charges taken as a whole. And, unless the Senate is to take the determination of the House without question, it too must judge the combined seriousness of the wrongdoing that is proved. I believe that this statement is very relevant to the obstruction of justice charge, which I will discuss later.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, today I rise to support the Mandates Information Act of 1999. I am pleased to be an original cosponsor of this legislation, which will make Congress more accountable for the laws it passes. I want to applaud my good friend from Michigan, Spence Abraham, for his hard work and leadership on this effort. He has always championed greater accountability and efficiency in our Government. This legislation is based on a simple premise--that Congress should think carefully and be accountable for passing mandates that impose significant costs on people and limit their freedom. In 1995, we passed the Unfunded Mandates Act to make Congress think twice before imposing new unfunded mandates on state and local government. But Congress also should be concerned about the private sector, especially consumers, workers and small businesses. This legislation builds on the Unfunded Mandates Reform Act in two ways. First, it will provide Congress with more complete information about the costs of proposed Congressional mandates on the private sector. The Congressional Budget Office would prepare a ``Consumer, Worker, and Small Business Impact Statement'' for new private sector mandates in bills reported out of Committee. The Statement would analyze the impacts of Congressional mandates on: (1) consumer prices and the supply of goods and services in the market; (2) worker wages, benefits, and employment opportunities; and (3) the hiring practices, expansion, and profitability of businesses with 100 or fewer employees. Second, to ensure that Congress pays attention to the information, this legislation would establish a point of order, waivable by a simple majority, against legislation containing direct private sector unfunded mandates over the $100 million threshold established by the Unfunded Mandates Act. This bill does not prohibit legislative mandates; it simply requires Congress to think carefully before deciding whether or not to impose them. Mr. President, I believe that the public has a right to open, accountable, and efficient government. If Congress or the President wants to take credit for the benefits of a new program, we also should answer for its costs. We can't shrug off our responsibilities just because the economy is good now and we can point to budget surpluses. There has been a large growth in regulatory mandates that simply are not accounted for in budget figures. Federal regulation costs about $700 billion per year by some estimates. That is about 40 percent of the size of the entire Federal budget. And regulation begins when Congress passes legislation that delegates its lawmaking authority to the Federal agencies. The truth is that there is no free lunch. While we can see the costs of tax-and-spend programs in the taxes we pay, the costs of regulatory mandates are just as real. We all pay for regulatory mandates through hidden taxes in the form of higher prices, lower productivity and wages, and diminished economic growth and job opportunities. In particular, the costs of private sector mandates can hit hard on consumers, workers and small businesses. Consumers pay for mandates through higher prices for goods and services. Workers pay through lower wages. And small businesses pay through lower profitability and growth, which in turn means less job opportunities for workers. A 1995 Small Business Administration study found that an average business with less than 20 employees spends about $5,500 per employee to comply with Federal regulations, while large firms with over 500 employees spend about $3,000 per employee. While regulatory mandates affect everyone, small businesses have a particularly tough time shouldering them. I have always said that agencies need to regulate smarter. But before we even reach that step, Congress needs to legislate smarter. Last year, this legislation passed the House, and in the Senate we reported it out of the Governmental Affairs Committee. On Wednesday, the House passed this legislation again by an overwhelming vote. It is my hope that we can enact it into law this year. The Mandates Information Act will help place responsibility for costly laws at their source--Congress. It's long overdue.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, today I rise to support the Mandates Information Act of 1999. I am pleased to be an original cosponsor of this legislation, which will make Congress more accountable for the laws it passes. I want to applaud my good friend from Michigan, Spence Abraham, for his hard work and leadership on this effort. He has always championed greater accountability and efficiency in our Government. This legislation is based on a simple premise--that Congress should think carefully and be accountable for passing mandates that impose significant costs on people and limit their freedom. In 1995, we passed the Unfunded Mandates Act to make Congress think twice before imposing new unfunded mandates on state and local government. But Congress also should be concerned about the private sector, especially consumers, workers and small businesses. This legislation builds on the Unfunded Mandates Reform Act in two ways. First, it will provide Congress with more complete information about the costs of proposed Congressional mandates on the private sector. The Congressional Budget Office would prepare a ``Consumer, Worker, and Small Business Impact Statement'' for new private sector mandates in bills reported out of Committee. The Statement would analyze the impacts of Congressional mandates on: (1) consumer prices and the supply of goods and services in the market; (2) worker wages, benefits, and employment opportunities; and (3) the hiring practices, expansion, and profitability of businesses with 100 or fewer employees. Second, to ensure that Congress pays attention to the information, this legislation would establish a point of order, waivable by a simple majority, against legislation containing direct private sector unfunded mandates over the $100 million threshold established by the Unfunded Mandates Act. This bill does not prohibit legislative mandates; it simply requires Congress to think carefully before deciding whether or not to impose them. Mr. President, I believe that the public has a right to open, accountable, and efficient government. If Congress or the President wants to take credit for the benefits of a new program, we also should answer for its costs. We can't shrug off our responsibilities just because the economy is good now and we can point to budget surpluses. There has been a large growth in regulatory mandates that simply are not accounted for in budget figures. Federal regulation costs about $700 billion per year by some estimates. That is about 40 percent of the size of the entire Federal budget. And regulation begins when Congress passes legislation that delegates its lawmaking authority to the Federal agencies. The truth is that there is no free lunch. While we can see the costs of tax-and-spend programs in the taxes we pay, the costs of regulatory mandates are just as real. We all pay for regulatory mandates through hidden taxes in the form of higher prices, lower productivity and wages, and diminished economic growth and job opportunities. In particular, the costs of private sector mandates can hit hard on consumers, workers and small businesses. Consumers pay for mandates through higher prices for goods and services. Workers pay through lower wages. And small businesses pay through lower profitability and growth, which in turn means less job opportunities for workers. A 1995 Small Business Administration study found that an average business with less than 20 employees spends about $5,500 per employee to comply with Federal regulations, while large firms with over 500 employees spend about $3,000 per employee. While regulatory mandates affect everyone, small businesses have a particularly tough time shouldering them. I have always said that agencies need to regulate smarter. But before we even reach that step, Congress needs to legislate smarter. Last year, this legislation passed the House, and in the Senate we reported it out of the Governmental Affairs Committee. On Wednesday, the House passed this legislation again by an overwhelming vote. It is my hope that we can enact it into law this year. The Mandates Information Act will help place responsibility for costly laws at their source--Congress. It's long overdue.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, today I am introducing the ``Regulatory Right-to-Know Act of 1999.'' I am pleased that Senator Breaux and Majority Leader Lott have joined me in this effort. Our goals are to promote the public's right to know about the benefits and costs of regulatory programs; to increase the accountability of government to the people it serves; and ultimately, to improve the quality of our regulatory programs. This legislation will help us assess what benefits our regulatory programs are delivering, at what cost, and help us understand what we need to do to improve them. By any measure, the burdens of Federal regulation are enormous. By some estimates, Federal regulation costs about $700 billion per year, or $7,000 for the average American household. I hear concerns about unnecessary regulatory burdens and red tape from people all across the country and from all walks of life--small business owners, governors and local officials, farmers, corporate leaders, government reformers, school board members and parents. There is strong public support for sensible regulations that can help ensure cleaner water, quality products, safer workplaces, reliable economic markets, and the like. But there is substantial evidence that the current regulatory system is missing important opportunities to deliver greater benefits at less cost. The depth of this problem is not appreciated fully because the costs of regulation are not as apparent as other costs of government, such as taxes, and the benefits of regulation often are diffuse. The bottom line is that the American people deserve better results from the vast resources and time spent on regulation. We've got to be smarter. We often spend a lot of time debating on-budget programs, but we are just breaking ground on creating a system to scrutinize Federal regulation. This legislation does not change any regulatory standards; it simply will provide better information to help us answer some important questions: How much do regulatory programs cost each year? Are we spending the right amount, particularly compared to on-budget spending and private initiatives? Are we setting sensible priorities among different regulatory programs? As the Office of Management and Budget stated in its first ``Report to Congress on the Costs and Benefits of Federal Regulations'': [R]egulations (like other instruments of government policy) have enormous potential for both good and harm. . . . The only way we know how to distinguish between the regulations that do good and those that cause harm is through careful assessment and evaluation of their benefits and costs. Such analysis can also often be used to redesign harmful regulations so they produce more good than harm and redesign good regulations so they produce even more net benefits. There is broad support for making our government more open, efficient, and accountable. This legislation continues the efforts of my precedessors. Regulatory accounting was a part of a regulatory reform bill that unanimously passed out of the Governmental Affairs Committee in 1995 when Bill Roth was our chairman. In 1996, when Ted Stevens became our chairman, he passed a one-time regulatory accounting amendment on the Omnibus Appropriations Act. I supported Senator Stevens' effort when it passed again in 1997, and I sponsored a similar measure last year, with the support of Senators Lott, Breaux, Robb and Shelby. There also is a broad bipartisan coalition in the House that supports regulatory accounting. This legislation will continue the requirement that OMB report to Congress on the costs and benefits of regulatory programs, which began with the Stevens amendment. This legislation also adds to previous initiatives in several respects. First, it will finally make regulatory accounting a permanent statutory requirement. Regulatory accounting will become a regular exercise to help ensure that regulatory programs are cost-effective, sensible, and fair. Second, this legislation will require OMB to provide a more complete picture of the regulatory system, including the incremental costs and benefits of particular programs and regulations, as well as an analysis of regulatory impacts on small business, governments, the private sector, wages and economic growth. OMB also will look back at the annual regulatory costs and benefits for the preceding 4 fiscal years, building on information generated under the Stevens amendment. Finally, this legislation will help ensure that OMB provides better information as time goes on. Requirements for OMB guidelines and independent peer review should improve future regulatory accounting reports. Government has an obligation to think carefully and be accountable for requirements that impose costs on people and limit their freedom. We should pull together to contribute to the success of responsible government programs the public values, while enhancing the economic security and well-being of our families and communities. Mr. President, I ask unanimous consent that a copy of the Regulatory Right-to-Know Act of 1999 be printed in the Record.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I rise today to recognize the outstanding accomplishment of the University of Tennessee Volunteers in capturing the national collegiate football championship. And I ask my colleagues to join me in formally congratulating the Tennessee Vols. On January 4th, I joined fellow Tennesseans across the country in watching with pride as the University of Tennessee Volunteers defeated Florida State Seminoles (23-16) and were crowned national champions for the first time since 1951. I should also point out that this is the second national championship that has come to the Tennessee Campus during this past year. The Lady Vols won the collegiate women's basketball crown and today stand at the top of the A.P. poll for the 1998-99 season with 40 of 41 first place votes. Tennessee has the fourth-winningest program in major college football this decade and has won back-to-back Southeastern Conference (SEC) championships. This year's Fiesta Bowl marked their tenth consecutive bowl appearance. The Vols finished 13 and 0 and ranked number one in the nation after winning the Bowl Championship Series title game. Mr. President, many of my colleagues had their own home-state favorites and I congratulate them on their seasons as well. But Mr. President back home in Tennessee, we are very, very proud of the Vols. We're proud of coach Phillip Fulmer and his staff. We're proud of the scholar-athletes. We're proud of the parents and the friends and the faculty who support them and out-numbered Florida State fans at the Fiesta Bowl by more than three to one. This is just about as flawless a season of athletic performance as you're ever going to see, and we're fortunate in Tennessee to have this tremendous program and these gifted, talented young people. This is a team which started the year with a new quarterback and then lost its top running back four games into the season. They came together and it seemed that each game produced a different hero and somebody was always there to make a big play at a crucial moment. Five different Vols earned SEC Player of the Week honors this season. Quarterback Tee Martin was named Offensive Player of the Week after completing an NCAA record 23-of-24 passes for 315 yards against South Carolina and setting a single-game record for completion percentage at 95.8. Receiver Peerless Price snagged Offensive Player of the Week when he caught a pass for a career-high 181 yards and one score in a win over Mississippi State. And on defense, linebacker Al Wilson broke records by forcing three fumbles against Florida. Defensive end Shaun Ellis returned an interception 90 yards for a touchdown against Auburn, and defensive back Deon Grant stole the spotlight with a key interception in a game against Georgia. All three were named SEC Defensive Player of the Week for their individual achievements. Mr. President, I would especially like to acknowledge the tremendous coaching job of Phillip Fulmer, who played offensive guard for Tennessee from 1969 to 1971, and who has led the team for seven winning seasons. Coach Fulmer has the highest winning percentage of any Tennessee coach, and is the winningest active coach in the country. So today, I congratulate them. With that kind of coaching, talent and an ability to work powerfully as a team, it's not hard to see why the Tennessee Vols have come so far this season. Mr. President, I know many of my colleagues have experienced this kind of excitement and pride with teams from their own states. And I know they appreciate just how proud we are in Tennessee to get bragging rights for this season.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, the Federal Vacancies Reform Act was passed as part of the omnibus appropriations bill. As reported by the Governmental Affairs Committee, and as confirmed in all the statements made when the bill passed the Senate, section 3347 of that statute made clear that so-called vesting and delegation statutes allowing the heads of departments to delegate duties to other officials in their departments do not constitute statutes providing for the filling of a specific vacant position that the law retains in lieu of the procedures contained in the Federal Vacancies Reform Act. The vesting and delegation statutes were cross-referenced to not fall within the statutes that subparagraph (a)(2) of the bill retained. While that was the appropriate cross-reference as the bill was reported, subsequent language changes made to clarify the issue altered the numbering of the subsections, but the earlier cross-reference was retained. As is obvious by reading the statements and the statutory language itself, the clear intent was to state that vesting and delegation statutes fall not within subsection (a)(2), which relates to recess appointments, but to subsection (a)(1), statutes that provide for the temporary filling of specific positions. We will make a technical change to the language next year, as the urgency of the legislation sent this bill directly to the President for his signature without the chance to make that technical correction. There is no question that the vesting and delegation statutes do not constitute provisions for the temporary appointment of specific officers, even without the crossreference, which was designed to be even more emphatic.