Fred Thompson

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I appreciate the opportunity to join my colleagues, Senators McCain and Feingold, in the introduction of the Senate Campaign Finance Reform Act of 1995. It is well known that the American people have very little faith in their elected representatives. It is a travesty that the commonly held presumption is that Members of Congress are bought and controlled by special interests. Another problem that affects the reputation and quality of our representative government is that once someone gets elected, they have a significant advantage in subsequent elections. Congress needs to move away from professionalism and more toward a citizen legislature. It should be more open, instead of more closed. And that's because of the role that money plays. Unless a candidate has access to large sums of money he or she is pretty much cut out of the process. This leaves the field to the professional politicians. This legislation will do several things. First, it will help level the playing field and help reduce the advantage that incumbents have. And it will bring down the built-in advantage of individual wealth. Second, it will reduce the reliance on private donations. The new provisions which is the largest step in a new direction is the one that requires that most of a candidate's money must be raised in his or her own State. For myself, I'd probably be in favor of even higher requirements on this. The most important element in all this is what passage of this legislation would do to improve public confidence. The public is extremely cynical and skeptical of the process of our Congress and our Government. We need to do everything we can to turn that around. Much of the public's concern has to do with the role of money in our process. This would be a step in a downplaying the importance of money in electing our officials and in what is perceived to be its effect on the decisions officials make after their election. Much of the public perception of the process is justified. We have got to [[Page S 12836]] start doing everything we can to enhance the stature and the confidence that people have in the Congress. Otherwise, we are not going to be able to exert the leadership we need to in other legislative areas. Right now we've got feet of clay, and it makes the rest of the body politic weak. Until we do something about these fundamental parts of the political process, Congress is not going to have the strength to sustain itself when we make the tough decisions on fiscal matters, and other important areas such as welfare, tax reform, health care, and crime. This proposal will help level the playing field, open up the process, and do away with some of the advantages of incumbency. It will reduce the amount of time a candidate and office holder will have to spend on fundraising. It will reduce the role of money and reduce the reliance on private political contributions. And most importantly, it will help renew public confidence.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I ask unanimous consent that the Senator from Pennsylvania, Senator Santorum, be added as a cosponsor.

Mr. THOMPSON. I also ask unanimous consent the following Senators be listed as cosponsors to this amendment. In addition to Senator Domenici and myself, Senator Pressler, Senator Hutchison, Senator D'Amato, Senator Abraham, Senator DeWine, Senator Ashcroft, Senator Snowe, Senator McCain, and Senator Grassley.

Mr. THOMPSON. Mr. President, I send an amendment to the desk on behalf of myself and Senator Domenici, the Senator from New Mexico, and ask for its immediate consideration.

Mr. THOMPSON. For several months now this body has debated many fundamental issues facing this country. While we still disagree on many of these issues, there are certain truths that are becoming readily apparent. One is that we must get our fiscal house in order in this country if we are to avoid national bankruptcy and preserve the country that we have known. It is true, it has been said often--and it cannot be said too often-- that our national debt and interest on that debt are strangling us. We cannot sustain deficits endlessly in the future at the rate we have. It will have its effects on savings, a detrimental effect on interest rates, and ultimately the long-term growth of this country. We will be leaving a legacy of higher interest rates and a lower standard of living to future generations. We are coming to agree on this basic general principle during these debates, and I think we are in the beginning stages, finally, of facing up to these problems. We have now passed a balanced budget resolution-- which will lead us to a balanced budget in the year 2002--for the first time in decades in this country. The President has now acknowledged the seriousness of this problem. We have a great opportunity, I think, to work together to solve this problem. Although we may differ on the means by which we solve it, I think we can certainly agree on the end that we must all work toward. I think we are also becoming more honest with the American people. I think it is clearer every day. People are beginning to realize if we are to solve this problem, we cannot have everything exactly as we have had it in years past. Sooner or later, we are going to all have to make some sacrifices for the sake of our country. We have seen this in nondiscretionary spending items, where we have come to realize we cannot continue to have growth in some of these programs at multiples of 10 percent a year. We have begun to address the question of cost-of-living increases. Some of our citizens have now had delays in those. Others, such as Federal workers, will be having to face up to this. Many of us who are concerned about our national defense and the fact that seemingly every time we have a major engagement in this country we become complacent, we do not keep our appropriations up. And we are faced with that situation, perhaps, again. But the point is that all of us are suddenly realizing everybody is going to have to pitch in. Nobody is going to get all of what they want. We are going to have to make sacrifices across the board. I feel there are very few Americans who are not willing to help, as long as they feel they are being treated fairly and there is an across-the- board addressing of the problem. The amendment Senator Domenici and I offer today is based upon the simple proposition that while we are asking the American people and leading the American people toward addressing these problems and making these adjustments, we do the same thing with regard to ourselves. We certainly should not be having automatic cost-of-living increases for this body during this particular period of time. Automatic pay increases, where we do not even have to vote on them, stick in the craw of the American people, and it is destructive to what we are ultimately trying to do here in this body. Some people will say we are not going to save all that much money by freezing the automatic cost-of-living increase for the year 1996, that it is largely symbolic. Our response to that is that symbolism is important. It is somewhat ironic that we are the body that has to lead the American people, the Congress. We have to lead the American people toward these difficult choices, but we are a body not held in high regard by the American people. So we must do what we need to do to put ourselves in a position of leadership. In order for us to be able to deliver a message to the American people and have it be credible, the messenger is going to have to have more credibility. Mr. President, I think we have begun to demonstrate to the American people that this body is willing to do its part. We have seen we have faced up to the problems of gifts and the problems of free trips we have had in this body in the past. We have seen one of the first thing we did in this session of Congress was to apply the laws to ourselves that have, for so many years, been applied to the American people. We are going to be facing up to the pension issues which will bring us more into line with other Federal employees and other people in the private sector. So turning down an automatic cost-of-living increase this year, I think, is a part of that overall, very important picture. We are going down the right road now, and I am delighted to see this amendment is going to be, apparently, agreed to, and we are not turning back at this stage. With that, I yield to the Senator from New Mexico.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, this amendment will allow a transfer of property between the U.S. Navy and the Port of Memphis, TN. The Navy will receive 100 acres of land to act as both a security and acoustic buffer zone for its Naval Service Warfare Center in Memphis. In return, the port will obtain from the Navy a 1,250-ton stiff leg derrick crane. The crane will give the port a facility to load and offload specialty cargo. In fact, no other port in the Central United States will have such lifting capabilities. This will be a great benefit for recruitment of future industry to Memphis and Shelby County. This is something the Navy wants and the Port of Memphis and others in the community want. Local officials say it will bring new industry and more jobs to the Memphis area. As this is beneficial for both sides and there are no new costs involved, I urge adoption of this amendment.

Mr. THOMPSON

Mr. THOMPSON. The Senator will state it briefly. I would like to state what I understand to be language that is agreed to by the managers of this bill. It is language which clarifies the intent of the committee and replaces references in the committee report on pages 96 and 97 with regard to the siting of the new spallation source project. Part of the agreed-upon language is as follows: The conferees make no recommendation with regard to the siting of the new spallation source project. The Department of Energy shall make that determination in a fair and unbiased manner. Am I correct in stating that this is part of the language that is agreed to for the purpose of legislative history?

Mr. THOMPSON. Mr. President, I believe it is our further understanding that our conferees will seek to place the agreed-upon language in the conference report; am I correct?

Mr. THOMPSON. This will help us move forward in those ways, and we appreciate the accommodation of the Senator from New Mexico and his willingness to work with us on this.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I want to thank the Senator from New Mexico for his support for stockpile management and the additional funds necessary to make needed investments in the Department of Energy's production sites such as the Y-12 plant. We certainly expect the Department will make additional investments in the production facilities to ensure those facilities meet future requirements.

Mr. THOMPSON

Mr. THOMPSON. I ask the Senator, is it accurate that section 625 has to do with jurisdiction and judicial review?

Mr. THOMPSON. Mr. President, I would like to address the subject of judicial review which my colleagues have been so eloquently discussing this morning. I think this, first of all, goes to the very heart of this legislation, because we can pass all of the requirements and all of the commonsense proposals that we want, but if it is left totally in the hands of the bureaucracy to decide whether or not they want to comply with it or how they want to comply with it, then it is meaningless. In other words, if there is not some semblance of judicial review, even for the most egregious conduct and outrageous decisions, it is, indeed, meaningless. Mr. President, this is a nation of laws, not of men and women, the bedrock of our country. Legislation gives tremendous authority to the executive branch. That is what this body, that is what the Congress of the United States does on a daily basis: It gives great authority to the executive branch to implement the laws that are passed. The bureaucracy, the administrative agencies--and I do not use that term derogatorily--but the bureaucracy works in that regard in adopting regulations to implement the laws that we pass. This is an awesome authority that we give to the executive branch. We have seen in times past in this country, and other nations, that power does tend to corrupt. Executive branch authority has to be looked at carefully; it has to be looked at constantly. Goodness knows, this body, in my brief observation, seldom has the opportunity for effective oversight. The Senator from Ohio made a very impressive statement on more than one occasion concerning the regulations of one particular regulation pertaining to the Clean Water Act--I believe, effluent emissions--where he said that from the well to the ceiling of this Chamber is 42\1/2\ feet, and those documents would go all the way from the well to the ceiling three times--three stacks of documents for one regulation. I am not sure the Senator would share the same conclusion that I would share from that. But, obviously, we do not have the time nor the inclination to go back and revisit the laws and revisit the regulations, certainly, that have been passed up until this time. What we can do is establish some rules of the road, interject some commonsense ways for the agencies to justify future rules, future regulations. Now, this authority that we give the executive branch is proper and appropriate in our constitutional scheme. That is what it is all about. We are supposed to have oversight of that. I think anyone who has spent any time here at all must acknowledge that that is a very tenuous situation at best in terms of effective oversight. We must look prospectively. So we have a system where citizens who are affected by this legislation, not just depending on Congress, but citizens affected by this legislation can come into court and say basically, ``We are not being treated right.'' That is all judicial review means. They come into the third branch of Government, [[Page S 10124]] an independent branch of Government--the judiciary--to make a determination as to whether or not the citizen, the private concern, is being treated right. We can talk about special interests and all of that in a pejorative way, but there are a lot of small businesses out there, a lot of individuals, there are a lot of public interest groups who take advantage of judicial review on a daily basis. It is not just the corporate fat cats who are sitting back out there to be labeled as special interest to whom this is important. It is important to everybody. It is important to every citizen. And it is really strange and inappropriate, I think, if we carve out one or two little pieces in this entire administrative framework that we are dealing with here and say everyone has the opportunity to come into court except these particular individuals, or except in these particular circumstances, because we place so much confidence in the nameless, faceless administrators who come up with these analyses, or these rules, that we really effectively do not want any judicial review in this particular area. Mr. President, I do not share the confidence that the opponents of Dole-Johnston seem to have in the agencies. They do a lot of good work on many occasions. But we cannot give that kind of authority, unchecked, unreviewed, to anybody, including them. We hear a lot of talk about a ``lawyer's dream.'' We are concerned now that we are going to create new causes of action, we are going to provide a new access for somebody coming into court. I share that concern across the board. I think that in times past we have not paid enough attention to that fact. But it is a strange occurrence for us to all of a sudden be concerned about that in the middle of this debate, when we are trying to bring some commonsense reform to this regulatory maze that is costing every American family $6,000 a year, because this body, the Congress of the United States, as a whole, are the reasons for the litigation explosion in the Federal system. It is the laws that we create, giving judicial review almost on every occasion, that create all of the litigation and all of the new regs, and we could not fill in this Chamber with all of the legislation that we have passed that give people new causes of action and new motivation to come to court, and new ways to burden the Federal court system. If you have a civil case anymore in the Federal court system, and many places in this country, you may as well forget about it for a good long while. Under the speedy justice acts, criminal cases take precedence. And that is because of what we have done here in this body. Not only do we constantly create new causes of action in this body, but on many occasions we finance it ourselves. We not only say you can come into court and get judicial review, which effectively is being denied, I submit, by the Glenn-Chafee amendment, but we have created all sorts of legislation where the Government will either pay the attorney's fees, or there are attorney's fees shifting. In other words, what could be more of an inducement to people to bring lawsuits and to come with new litigation than to say you are going to get your attorney's fees paid for? Yet, we do that time and time again. We are the cause of all of that. There are the civil rights cases, which we are familiar with; Fair Housing Act, Fair Labor Standards Act; Age Discrimination in Employment Act of 1967; Equal Credit Opportunity Act; Civil Service Rehabilitation Act; Individuals With Disabilities Act; Religious Freedom Restoration Act; Violence Against Women Act. There are awards for attorney's fees in tax cases that we give to citizens if they prevail in certain tax cases. Awards for attorney's fees we give in certain lawsuits against the States, and in certain lawsuits against judges. We not only give them a cause of action, and we not only give them judicial review, we see that their attorney's fees are paid. There was the Federal Contested Elections Act; Government Employees Rights Act of 1991; Equal Access to Justice Act; Freedom of Information Act and Privacy Act; Government in the Sunshine Act; Whistleblower Protection Act of 1989; Civil Service Reform Act of 1978; NEPA; Commodity Exchange Act; Packers and Stock Yards Act; Perishable Agricultural Commodity Act; Federal Crop Insurance Act, Animal Welfare Act; Agricultural Unfair Trade Practices Act; Plant Variety; Immigration and Naturalization Act; National Aeronautics and Space Administration Act; National Defense Authorization Act; Bankruptcy Act; Federal Home Loan Bank Act; Home Owners Loan Act; Housing Act of 1959. These are all acts not only where we are creating new causes of action and giving people access to the court, in addition giving them judicial review, but we are seeing that their attorney's fees get paid if they prevail. That is a very loose definition. I will continue: National Housing Act; Federal Credit Union Act; Federal Deposit Insurance Act; Bank Holding Company Act; Bank Tying Act--whatever that is--Farm Credit Amendments Act; Real Estate Settlement Procedures Act; International Banking Act; Expedited Funds Availability Act. Mr. President, there are hundreds. I will not take the Senate's time with reading all of them. But there are literally hundreds of pieces of legislation that this body has created where not only do we create new causes of action and provide judicial review; no question is usually ever raised about full judicial review. All of these are important subjects. I am not saying they were bad legislation in every case; certainly not. I am just saying that it is mighty strange that in the middle of all of this, when we want to say let us supply a little common sense to the regulatory process, let us require a cost-benefit analysis, just put down on paper whether the benefits justify the costs--as we have seen here, we are not talking about a money situation here. Benefits are defined as social benefits, as well as economic benefits. Costs are defined as social costs--social costs, as well as economic costs; not only direct benefits and direct costs, but indirect benefits and indirect costs. What could give an agency more discretion than dealing with something that might be described as an indirect social benefit? That is great leeway. Yet, we want to limit judicial review when they make these commonsense assessments that we say since we cannot and will not go back to the 3-foot stack of regulations and deal with them, which is what we really ought to do, we are going to at least try to apply some commonsense standards as far as we go forward. That is all this is about. Judicial review is the norm. It is the way it ought to be. The Administrative Procedures Act provides broad, broad discretion and judicial review. We keep talking about this explosive litigation situation that is going to develop from all of this. Not so. We create no new causes of action with the Dole-Johnston bill. The judicial review is already contained in the substantive legislation. I must say, it seems in times past when we gave authority to an agency, we have readily granted judicial review. But when we are putting certain restrictions on an agency and making them justify what they do, some seem to want no judicial review. The opponents say not only too much litigation; second-guessing scientific opinions, the rulemakers will be tied up in knots. Well, the Senator from Louisiana, I think, has very, very effectively addressed most of those. I share his concern that if something is repeated long enough, saying that it will cause an explosion in litigation and that will tie the courts up in knots, some people will get to believe it. It is just not true. Repeating it does not make it true. Section 625, no new causes of action. Final agency action is the only thing that can be looked at. Cost-benefit analysis will be included in the directive. Only if the final agency action is arbitrary or capricious will it be overturned. In other words, no independent second-guessing or analysis of the cost-benefit analysis. It is just a part of the picture. It is part of the overall picture, and it can be considered. It can be looked at. Mr. President, I submit that this provision is narrower than the law is now. Traditionally, any procedure defect can be appealed and be a ground for upsetting the agency action. Here it is only if it is a part of an overall review, if the final agency action is arbitrary and capricious. It cannot be considered independently. Under the old law if something was faulty, if the cost-benefit analysis was faulty, that kind of a [[Page S 10125]] defect would be reviewable and enough to overturn the opinion. Actually, it seems to me that as far as this new cost-benefit is concerned, we have a narrower scope review than we traditionally have for other defects in the process. Of course, 706 is just the same as under the Administrative Procedure Act that we have been dealing with for so many years, except with section (F). As I understand it, we have to look at (E) in conjunction with that. It is a substantial evidence test in (E), substantial support test in (F). Substantial evidence test, as I understand it, where there is a record administrative law judge, substantial evidence test is something that has been applied now for years and years on the record, and I think the thinking with (F) is apply that to the rulemaking process, the same kind of review, substantial support test, and do we want a rule that does not have support in the record in the rulemaking, substantial support? It is not a de novo review by any stretch of the imagination. The court must show deference to what the agency has done under that kind of scheme. Will there be more litigation? I submit certainly not. I submit nobody knows, certainly. Nobody knows. There is always litigation. There always will be litigation. Trying to pinpoint the cause for a particular lawsuit cause of action is a fruitless process. I submit a very good case could be made for the proposition that it will result in less litigation, Mr. President, instead of more, because now at least the courts have some fairly objective criteria to look at. Cost-benefit analysis: Do the benefits justify the costs? Are the costs justified by the benefits? I think it could go to make better rules. I think the agencies have been engaging in this process all along, anyway, in some rough form. Any rule that we put down, certainly, I hope that agencies would consider how much benefit are we going to get out of this and what will it cost? By putting it down somewhere--with the tremendous prejudice in favor of the agency action going in, the tremendous hurdles a petitioner has to overcome--putting it down somewhere and having developed some case law on the subject, and it becoming more objective, I submit that people would be less likely to attack it because it is less nebulous than it has been in times past. Will there be more litigation? There is very limited interlocutory review. Now, if an agency decides that something is not a major rule, it does not meet the $100 million threshold, then there is review under those circumstances. But I think the Senator from Louisiana hit it on the head. It looks to me to be in the interests of both sides, if the determination is made that it is not a major rule, to go ahead and get that resolved. Otherwise, we go on through the process, all the way to the end, get to the final rulemaking, get there, then an appeal is taken. Then if it is determined it was, in fact, a major rule, have to go all the way back, and it affects everything that has been done, and you have to start back from scratch. This is not a problem, interlocutory situation, that gives the petitioner some great advantage. What about second-guessing scientific study and that sort of thing? I submit, Mr. President, that right now we have courts in a position under the arbitrary and capricious standard and all the other standards under 702 that courts are making some kind of rough determination on scientific principles of some kind, scientific analysis, totally unequipped in many cases, I am sure, to do it. But under the Dole- Johnston bill, we have peer review. We actually have an opportunity for the experts to come in and interject their analysis into the process. Again, my understanding is that this is nothing new in the well- crafted rules and procedures that are done now under current law. Peer review is not a stranger--National Academy of Science--and the agencies are well equipped to do this peer review. They are well equipped to do the cost-benefit analysis. There is nothing new with regard to that. Now they must do it in every instance where we have a major rule. So the courts now are having to deal with this scientific evidence test. Actually, this legislation will assist the court because of the additional peer review. The courts will not be second-guessing the agency's actions here. I share with the proponents of the Glenn-Chafee substitute that we do not want to be able to have people come in and tie up legitimate rulemaking functions at the drop of a hat and stop everything in its tracks. Nobody is propounding that. What is being done here, it looks to me, the problem with it, it is such a modest proposal, it is such a modest first step to interject an element of common sense into a process that I think just about everybody in this country has concluded has gone too far. Every once in a while things gets out of hand. We have to get back toward the middle of the road a little bit. I think that is what this legislation does in a very modest way. Increased delay, tie the court in knots--it is simply not in the legislation. These objections cannot be identified and pinpointed with regard to any particular section in this legislation in the Dole- Johnston amendment. Under ordinary circumstances, you cannot get a stay, you cannot come in, you cannot file a lawsuit and stop the proceedings. That simply does not happen except in rare circumstances. What are those circumstances? Same old, traditional circumstances that we have already had in other situations. That is, if a petitioner can overcome the very high burden of proving that he is likely to prevail ultimately in the case, if the petitioner can show that he will suffer irreparable injury, not just injury but irreparable injury, if he can show it is in the public interest, if he can do all of those things, he might stay the proceedings for a while. Would we not want him to? If petitioners can show that they are likely to prevail, that they are going to suffer irreparable injury, is there anything wrong, within that limited circumstance, with being able to have a stay? It is a very, very rare situation, indeed, where that would come into play. So there is no tying up of the courts. There is no stopping of the courts. There is no keeping the forward move of the rule from making progress. What are the hurdles? Look at a situation that a petitioner has. Look at what a petitioner has to go through in order to challenge a rule. First of all, you have the definition of benefit and the definition of costs that we referred to a little bit earlier. I think we need to go back to that, because I think we get away from that. The definition applies throughout for both subchapter 2 and 3. The definitions are ruling. The definitions are standard, and apply every time these terms are used anywhere in the act. It says: The term ``benefit'' means the reasonable, identifiable, significant favorable effects including social, environmental, health and economic effects that are expected to result directly or indirectly from implementation of a rule or other agency action. So, when people talk about seatbelts, or people talk about food, and people talk about all those things that are vital concerns to all of us--certainly you can consider the noneconomic benefits. You can consider the social benefits. You can consider the environmental benefits. You can consider all of the health benefits. And, if an agency does a halfway decent job of addressing that and putting it down on paper, look at the hurdles that a petitioner has to overcome in order to challenge that. Consider the court's natural hesitancy to second guess an agency under those circumstances; a natural hesitancy to second guess technical evaluations. Then you have the harmless error rule. Suppose you go through all that. OK, the agency messed up. OK, even by the loosest definition of benefit or cost, the benefits did not outweigh the costs so the petitioner has crossed that first hurdle. Then he has to get by the harmless error rule, and that is no mean feat. That has been with us for a long time. It has made a lot of agency actions prevail in circumstances they otherwise would not. So, those are the hurdles that a petitioner has. Now, under the Glenn substitute, first of all, for something that has to do with judicial review I am struck by the consistency of what is not subject to judicial review. I think we have five sections here and in four of them the emphasis is on what is not subject. [[Page S 10126]] Section 623(a): ``Shall not be subject to judicial review in connection with,'' et cetera. ``(b) shall not be subject to judicial review in any manner'' ``(d) court shall not review to determine whether,'' et cetera. ``(e) shall not be subject to judicial consideration separate and apart,'' et cetera. I will go into the details of all this later. But is it not strange that in something that is supposed to deal with judicial review, that the entire emphasis seems to be on what is not subject to judicial review? It looks like we are leaving a very, very narrow window indeed. Let us look at the provisions of the Glenn-Chafee substitute. In the first place you have (b), ``any determination by designee of the President or the director that a rule is or is not a major rule shall not be subject to judicial review in any manner.'' It just stops in its tracks, if I understand it correctly. That can just stop everything in its tracks right there. It says in (e) that ``a determination by an agency that it is not a major rule shall be set aside by a reviewing court on clear and convincing evidence.'' But who gets to decide last? If an agency made this determination and the President or the director made a subsequent determination, or contemporaneous determination, would that not be the end of it? In other words, the executive branch has total discretion, it looks to me like, in determining whether or not the process goes forward in terms of cost-benefit analysis, risk assessment or whatever, because they can decide, no matter how clear it is to most people that it meets the $100 million threshold--they could just say that it does not and nobody can review that. Nobody can question that. Indeed, ``If a cost-benefit analysis or risk assessment required under this chapter has been wholly omitted for any major rule, a court shall vacate the rule and remand the case for further consideration.'' In other words, if you have what has been decided and what has been determined is a major rule, therefore under the law requiring the agency to make the cost-benefit analysis, but the agency just says I am not going to do it, they suffer the severe penalty of having the court simply remand it back to them for further consideration. I do not know what happens if they do the same thing again and the court remands it back again, and again and again. The rest of it I think the Senator from Louisiana has addressed. It is essentially very similar to the Dole-Johnston bill in that basically it is still an arbitrary and capricious test. I did not even mention that in the hurdles that a petitioner has to overcome, which is a very, very tough test for a petitioner to have to overcome to prove that something is arbitrary and capricious. So, Mr. President, I think it just comes down to whether or not you want to do anything about this problem. I think it comes down to whether or not you want risk assessment, you want to have a cost- benefit analysis. Because, if you do, it cannot possibly mean anything. It would be totally meaningless unless you have more of a redress for people who are aggrieved. I might point out, in this legislation business, it seems to me we often go off on the basis of whose ox is being gored at the moment. What if you had a President who did not like any rules? Should we cut off people, public interest groups, whatever, from judicial review and petitioning and doing what they would want to do in order to get effective rules passed and make sure they are not just dismissed out of hand and erroneous determinations as to whether or not something is a major rule? Some President could decide everything is going to be a major rule, no matter how minuscule it is. If he was really an enemy of rules and regulations, he could just decide everything is going to go be a rule and make everyone go through the process. It is a two-way street if we look at it that way, and I urge the Dole-Johnston amendment does that. It is a modest proposal to try to get our arms around, in some way, and make some progress towards interjecting some simple, some commonsense principles into this regulatory mess that we have gotten ourselves into and do not seem to know how to get out of that is costing the American taxpayers' $6,000 per year per family and going up. And then get on about the business of passing laws that will be subject to real oversight. I think that is one of the most important provisions of this bill. I think it gives us another look at these rules that are going to be passed, now, and give us really an opportunity to focus on our oversight responsibility. We do pretty good at turning these laws out but it seems to me like we wake up a few years down the road and get a deluge of citizens coming in here saying you did not know it at the time but look what you have done to us. And then it is too late to do anything about the regulatory mess we have created. We have an opportunity here to do something about that and I urge the defeat of the Glenn-Chafee amendment and the adoption of the Dole- Johnston amendment. I yield the floor.

Mr. THOMPSON. And most of it finds its way into legislation, I venture to say.

Mr. THOMPSON. I thank the Senator.

Mr. THOMPSON. I share the Senator's real perplexity as to what the confusion is with regard to the review in that section. It is clear that it cannot be considered independently, that you cannot take--you can look at a cost-benefit analysis or a risk assessment independently and provide your own independent judgment on that, but it can only go into the final rule in making a determination as to whether or not the final rule is arbitrary and capricious, et cetera. Is that correct?

Mr. THOMPSON. And if there is a phrase or a couple of words within that provision that our friends think may in some way be ambiguous in interpreting another section or another phrase in another section of the statute, would still not section 625 be the ruling section as far as what judicial review is? It is a judicial review question we are concerned with here, is it not?

Mr. THOMPSON. I compliment the Senator in his attempt to deal with this issue. It is as if someone would say that the Senator's desk is yellow, and you can argue that it is not, and someone else can argue that it is. But there comes a point at which you want to throw up your hands, I am sure, because you are dealing with clear language, and I fail to see how anyone could misinterpret this. It has only to do with final agency action. Is that correct?

Mr. THOMPSON. The question has arisen as to the language ``failure to comply'' and how that might relate to some other section. I share the concern of the Senator from Louisiana and bemusement really as to why our friends refuse to read the rest of that sentence. Instead of reading the rest of the sentence in which that phrase is contained, other sections are referred to. Is it not true that it is ``failure to comply with this subsection may be considered by the Court solely for the purpose of determining whether or not the final agency action is arbitrary and capricious,'' et cetera?

Mr. THOMPSON. Yes.

Mr. THOMPSON. With regard to the questions of to what judicial review will pertain, would that be the governing section, section 625?

Mr. THOMPSON. And with regard to any question such as the one that the Senator from Michigan raised pertaining to jurisdiction and judicial review, would that section apply?

Mr. THOMPSON. Will the Senator yield for a question?

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I rise tonight in support of [[Page S 9710]] S. 343, the Comprehensive Regulatory Reform Act of 1995. This bill is an essential part of our effort to make the Federal Government run more efficiently and effectively, and curtail its ability to impose unnecessary burdens on the American people. We have already enacted laws that will reduce unfunded mandates and the burdens of paperwork on State and local governments, as well as the average citizen. We are moving decisionmaking back to the States in many important areas, because the States are closer to the people and to the problems that need to be solved. We are making real progress toward eliminating Federal departments and agencies that no longer serve a useful purpose. Most importantly, we are well on our way to requiring that the Federal Government live within its means in the form of a balanced budget. This bill is the next logical step in this process of rethinking the role of the Federal Government in everyday life. This bill's message is very simple. It says: let Members make sure that the Federal Government adequately protects the health and safety of every American. But, also make sure that, when agencies develop regulations to provide that protection, those regulations are founded in good, common sense. Get out of the mindset that the Federal Government needs to regulate everything in this country. And, set priorities, so that the Federal Government addresses the most important problems citizens face. How does this bill accomplish these goals? Well, the bill requires agencies to make accurate determinations about the good a potential regulation can bring about. In other words, how much disease or premature death can be avoided? Or, how much less dangerous can a situation be made? In answering these questions, the Federal agency must be as precise as possible, using the most carefully prepared and up-to-date scientific information. Then, the agency needs to look at the negative impact that very same regulation may have on Americans. For example, how much more will the average American have to pay for a particular product? Will some Americans lose their jobs? Will some products no longer be available to American people at all? Will citizens have to spend a greater amount of their leisure time complying with Government mandates? Will preventing one disease cause an increase in some other equally dangerous disease? Once all of these important questions have been asked and answered, S. 343 requires the Federal agency to put all of this information together and ask the central question: Do the benefits of this rule outweigh the costs? Or, in more simple terms: Does this rule produce enough good things for our citizens to make the negative impacts tolerable? Mr. President, what I have just laid out is S. 343's approach to developing and issuing Federal rules. I think the American people would say that this approach is based in ordinary common sense. This is how they make decisions on countless questions that come up in their own lives every single day. Do I spend money for a newer, safer car, or keep my old one? Do I put money aside for retirement or do I spend it now? Americans make calculations about the costs and benefits of their behavior all the time. And now, Americans are asking that the Federal Government approach problems in this way too. They are asking regulators to make decisions as if they were sitting around the kitchen table. They understand that the Federal Government deals with complicated problems. What they don't understand is why the answers to these problems cannot be developed from the same process that they use at home. Mr. President, so far, I have described the method S. 343 lays out for determining the costs and benefits of Federal regulations. Some of our colleagues believe that S. 343 would be a pretty good bill if it just stopped right there. In my view, if we could trust the agencies to do the right thing, we could stop there. Unfortunately, recent history tells us that the agencies sometime need more encouragement to actually do what is right. Since the early 1970's, Presidents have asked Federal agencies to analyze the costs and benefits of a regulation before issuing it. On September 30, 1993, President Clinton continued that longstanding tradition by putting in place an Executive order. The philosophy and principles contained in S. 343 largely mirror those in the Executive order of President Clinton. That is where the similarity stops. As with all Executive orders, President Clinton's specifically precludes judicial review as a way of forcing agencies to consider costs and benefits before issuing rules. If Federal agencies were complying with the Executive order, we would not be here on the Senate floor tonight. The fact is that they are not. When the whim suits them, Federal agencies comply with the Executive order. When it does not, they do not. In most cases, agencies are not making careful assessments of the positive and negative impacts of their regulations. That is why, in my view, the judicial review provisions of S. 343 are so important--in fact, vital--to this legislation. We must provide judicial review if the legal protections we enact in this bill are to have any significance. Only the availability of judicial review will ensure that agencies will analyze the costs and benefits of major rules, as this bill requires. Mr. President, S. 343's judicial review provisions provide an essential tool for citizens to hold their Government--and in particular unelected regulators--accountable. But, the bill does not--as its opponents charge--create new causes of action that will clog the courts. This bill merely directs courts, reviewing otherwise reviewable agency action, to consider the compliance of the agency with the requirements of this legislation. Mr. President, I will have more to say on the important subject of judicial review as this debate goes forward. S. 343 contains two other provisions that will force Federal regulators to produce sensible regulations also. The first of these provisions, in my view is most important, that is chapter 8 of S. 343, which authorizes congressional review of regulations. My colleagues will recall that this language is virtually identical to the congressional review bill that the Senate passed earlier this year in the place of a 1-year moratorium on regulations. Section 801 gives the Congress 60 days to review a final rule before that rule actually becomes effective. During that time, Congress can determine whether the rule is consistent with the law Congress passed in the first place. Perhaps more importantly, Congress can look at the rule to see if it makes good sense. I think that this process will not only hold the regulators' feet to the fire, but it will also keep Congress from passing laws that do not work or are too costly. S. 343 also makes Federal agencies accountable by requiring them to review periodically the rules that they put on the books. Some rules that addressed important needs a long time ago are no longer necessary. Some may just need rethinking. In my view, this is a healthy process for agencies to be engaged in on a regular basis. Mr. President, if all of this common sense is still not enough to get some of my colleagues to support this legislation, perhaps a few statistics on the cost of Federal regulation will illustrate the need to reign them in. After all, Federal regulations operate as a hidden tax on every American. It has been estimated that the total cost of Federal regulations is about equal to the Federal tax burden on the American people--a cost of more than $10,000 per household. One estimate of the direct cost imposed by Federal regulations on the private sector and on State and local governments in 1992 was $564 billion; another estimate put the cost at $857 billion. When the total Federal regulatory burden is broken down into parts, we find several staggering statistics. Economic regulations--imposed largely on the communications, trucking, and banking industries--cost over $200 billion a year. Paperwork costs--the cost to merely collect, report, and maintain information for Federal regulators--add another $200 billion a year and consume over 64 billion person hours per year in the private sector. This figure does not include the massive number of hours Federal employees spend on processing and evaluation information. Environmental regulation is estimated to cost $122 billion, which represents approximately 2 percent of the [[Page S 9711]] gross domestic product. And finally, in 1992, safety and other social regulations imposed costs ranging from $29 billion to $42 billion in 1992. The numbers reflect the high costs of regulation to the private sector--and I should remind my colleagues that those costs must be borne by small businesses as well as the larger ones. As we all know, a good portion of those costs are passed through to all of us in the form of higher prices. But we also pay for the Government's costs to administer these regulations, and those costs are soaring too. Measured in constant 1987 dollars, Federal regulatory spending grew from $8.8 billion in 1980 to $11.3 billion by 1992. In addition, by 1992, the Federal Government employed 124,994 employees to issue and enforce regulations--an all-time high. Higher prices and taxes are not the only result of government regulation. A recent study done for the U.S. Census Bureau found a strong correlation between regulation and reduced productivity. The study found that plants with a significant regulatory burden have substantially lower productivity rates than less regulated plants. And that is one of the factors that I think is missing in our balanced budget debate so often, Mr. President. We talk about spending. We talk about taxes, as we must and as is proper. But we do not talk enough about the need for growth and the need for productivity. Unless we have productivity in this country, unless we continue to grow in this country, we will never balance the budget. We will never balance the budget. And in order to have that growth in productivity we must have investment. In order to have investment we must have savings. In order to have savings we must get a handle on a ridiculous tax structure that we have in this country. We must get a handle on the national debt. And we must do something about this regulatory burden. It all goes in together and it all finds itself in the bottom line of productivity. So we are really talking about a budgetary matter here, in my estimation, as much as anything else. Given all of these statistics, you might assume that President Clinton would cut back on Federal regulations. This is what the American people have been asking for. And, indeed, it is what President Clinton promised in his National Performance Review. In that review, the President promised to ``end the proliferation of unnecessary and unproductive rules.'' Instead of keeping that promise, President Clinton and his administration have gone in the opposite direction. For each of the first 2 years of the Clinton administration, the number of pages of actual regulations and notices published in the Federal Register exceeded any year since the Carter administration. Despite his rhetoric, President Clinton has increased, not decreased, the number of regulations. The statistics I have just reviewed make a sufficiently compelling case for regulatory reform. But there is still more evidence to support the case for S. 343. Some of my colleagues have already described many examples of the existing regulations that defy common sense. There are many more stories that could be told. I would only like to add a couple to the growing list. One example of regulation gone wild can be found in the Environmental Protection Agency's implementation of the Federal Superfund Program. As the Members of this body well know, the Superfund law requires the cleanup of some 1,200 toxic waste sites around the Nation. Under this program, the EPA and private parties have spent billions of dollars with very little to show in the way of results. Few sites have actually been cleaned up. Of the ones that have been cleaned up, many have been restored to a level of cleanliness that far exceeds any real health risks to humans. A March 21, 1993, article from the New York Times, describes the unrealistic level of cleanup EPA required at one site. EPA officials said they wanted to make the site safe enough to be used for any purpose--including houses--though no one was propose to build anything there. With that as the agency goal, the agency wanted to make sure children could play in the dirt, even eat it, without risk. And since a chemical in the dirt had been shown to cause cancer in rats, the agency set a limit low enough that a child could eat half a teaspoon of dirt every month for 70 years and not get cancer. Last month, the EPA officials acknowledged that at least half of the $14 billion the nation has spent on Superfund clean-ups was used to comply with similar ``dirt-eating rules,'' as they call them. Mr. President, in conclusion, burdensome Federal regulations are also imposed on small businesses. Dry cleaners, in particular, must clear a large number of hurdles just to begin operating. According to the National Federation of Independent Businesses, as of 1991, the Federal Government required a new dry cleaner to fill out and comply with nearly 100 forms and manuals before it could open for business. Yesterday, the Senate approved two important amendments to address the special problems that all small businesses, including dry cleaners, face. As amended, S. 343 now requires regulatory agencies to review regulations imposed on small entities for cost effectiveness. Mr. President, I think the evidence is clear that our Federal regulatory system has become unreasonable and misguided. S. 343 will put it back on the right track and, therefore, I urge its passage by my colleagues. Mr. President, I yield the floor.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I want to join in the comments of my distinguished colleague from Delaware. I could not agree with him more concerning the events of recent hours, and as far as our policies are concerned concerning those events in that part of the country. What concerns me most about all of this is the credibility of the United States of America. I am beginning to wonder if we have any credibility in any part of the world anymore. Following the disastrous U.N. lead, and to a certain extent the NATO lead there, not getting them to go along with sound policies and lifting the arms embargo with their cooperation, one sad tale after another, we have gone down a road of totally participating in the discrediting of the United Nations, of NATO, and our own country. I think that the first step toward rectifying that certainly is not putting our own troops in there, but letting the people defend themselves, which is all they say they want to do, lifting that arms embargo, stepping back and saying, ``It is your problem. You solve it. You take care of it.'' That is what they deserve to do. We cannot afford to stand by, through our policies, and let this murderous activity go on, and say to the world that we, the strongest power in the world, supposedly are going to countenance that sort of thing and not use the many resources, short of troops on the ground, that we have, to do something about such terrible activities.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, today we are debating much more than the qualifications of Dr. Henry Foster. Few could argue he is not technically qualified. Furthermore, few, if any, would contest the fact that Henry Foster is a decent man who has worked hard and done much good in his lifetime. I might also say, for my part I am not too caught up in these issues of credibility with regard to things that may or may not have happened a decade or more ago. I do not agree with my colleagues who say that you cannot trust this man. I hope the Members of this body are never judged by standards of consistency in other matters by which we judge some of these nominees. However, Dr. Foster is caught up in something much bigger than himself and, therefore, so are the rest of us in this debate. Because of the way the President has used the office of Surgeon General and the appointments to it, we are now engaged in a heated national debate, one that I think is divisive and unnecessary. At a time when all of us, and especially the President, should be looking for ways to bring people together in this country, the President, by means of this appointment, has chosen instead to give a [[Page S 8734]] symbolic victory to one side in the abortion debate. The President has taken the office of Surgeon General, a rather obscure office with no real authority whose purposes have traditionally been to simply promote mental and physical health, and raised it to the position of spokesperson with regard to sensitive moral and social issues. Then he has proceeded to appoint Dr. Elders to that position, one of the worst and most controversial appointments in recent years. With that legacy, naturally the position has become one of great sensitivity to many of the American people. It is time for an appointment that will symbolize a return to matters of basic health care. It is time for an appointee who will command the attention and respect of the Nation with regard to these issues. Instead, the President has made an ``in-your-face'' appointment that was totally insensitive to the religious and moral beliefs of a large segment of the American people. One must assume the President knew the firestorm of divisiveness that this appointment would cause and that he simply assumed he would be the political winner in this national debate that would ensue, regardless of whether or not Dr. Henry Foster was confirmed. That is not the proper use of the office of the Surgeon General and that is not the proper use of this nomination. Therefore, I choose not to endorse the President's actions and I will not vote to confirm this nomination. I yield the remainder of my time.