Fred Thompson

Mr. THOMPSON

Mr. THOMPSON. Mr. President, Lindsey Nelson, Tennessean, died this week. He left behind a rich national heritage in broadcasting matched by very few in our history. During his life he was voted by his peers into the Baseball Hall of Fame at Cooperstown; the Broadcasters' Hall of Fame; and the Pro Football Hall of Fame in Canton, OH. He richly deserved this recognition for his remarkable achievements in sports broadcasting. After working in administration at NBC in New York City for a number of years, Mr. Nelson took to the airwaves and started his career in broadcasting. [[Page S8518]] In 1962, he became the announcer for the just-formed New York Mets, where he remained for 17 years. Working with Ralph Kiner and Bob Murphy, he broadcast the Miracle Mets' World Series season of 1969. Later he became the voice of the San Francisco Giants. He also broadcast Notre Dame football during his distinguished career, along with many of our Nation's great sporting events, including the Masters Golf Tournament and the Cotton Bowl. But, as distinguished as Lindsey Nelson's career was at the national level, he was first and foremost a son of Tennessee. He graduated from the University of Tennessee in 1941. While in UT he tutored English to football players, and planned to go into sports writing. However, the Second World War intervened, and Mr. Nelson joined the Army and saw battle duty in Italy, Germany, and France. He won seven battle campaign stars and a Bronze Star. After the war he did the play-by-play for the University of Tennessee football team. In 1949 he founded the Vol Network, and became the university's sports information director in 1951. He also did announcing for the school's basketball games and the Knoxville Smokies baseball team. The university's baseball stadium, one of the finest in the Nation, was named after Lindsey Nelson. For a number of years Mr. Nelson wrote a column for The Knoxville News-Sentinel. Lindsey Nelson loved Tennessee. He loved its State university in Knoxville. Wherever he served in his long and productive life, he was never far from his beloved State and school. Tennessee lost one of its most favored and distinguished sons with the passing of Lindsey Nelson. As his old friend Ben Byrd, former sports editor of The Knoxville Journal, said on hearing of Mr. Nelson's death: ``A lot of people knew him, and without exception they all loved him. He was just something special.'' I join all of Lindsey Nelson's many friends in Tennessee and around the world in mourning his passing.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, we all appreciate the FBI's fine job in investigating the Oklahoma City bombing and tracking down the perpetrators. But all the resources that we vote for the FBI, and all the work that the Marshals Services performs to protect people in Federal buildings, are meaningless if the courts will not put terrorists and other criminals in jail for a long time. And those resources also will be wasted if the Justice Department fails to punish those who are guilty. The bill before us will strengthen Federal efforts against terrorism. However, the American people should know that we are acting thoughtfully, and are not overreacting. For instance, the bill before us reflects a conscious decision not to pass the administration's proposals to permit roving telephone wiretaps and to significantly increase the role of the military in domestic law enforcement. Before this administration asks for increased authority that could infringe the civil liberties of innocent citizens, it should exercise its already significant authority to punish terrorists. President Clinton has stated that those who bomb Federal buildings are evil cowards. And he has said that it is wrong for terrorists to try to kill those who lawfully arrest them. Yet, the record of the use of the current authority of the President's Justice Department to fight terrorism fails to match the President's rhetoric. Rodney Hamrick is a terrorist. He has been convicted of threatening the life of the President, manufacturing an incendiary device while in prison, and making bomb threats against Federal courthouses in Washington and in Elkins, WV. While facing prosecution for threatening to kill the judge who sentenced him, Hamrick built a bomb from materials available at the jail: A 9-volt battery, steel wires, and cigarette lighters. He wrapped the bomb in aluminum and put it in an envelope between a pad and a piece of cardboard. The bomb was designed to detonate when the pad was removed from the envelope. If fully effective, the bomb would have produced a 1000-degree fireball up to 3 feet in diameter. Hamrick mailed the bomb to the Federal building where the U.S. attorney responsible for prosecuting him worked. When the U.S. attorney opened the envelope, the bomb fortunately did not explode. The U.S. attorney, recognizing the homemade bomb, fled his office. The Marshals Service, FBI, and ATF were called and an Army bomb disposal expert was flow to the scene. He ordered the evacuation of the entire wing of the Federal building. While wearing a full-body kevlar bomb suit, he dismantled the bomb at a distance of 30 feet and a flight of stairs away. Hamrick was convicted of a number of [[Page S7730]] charges related to using a deadly or dangerous weapon and destructive device in perpetrating his attempted murder of a Federal official. On appeal, a three-judge panel of the fourth circuit held that a dysfunctional bomb was neither a ``dangerous or deadly weapon'' nor a ``destructive device.'' The court made this ruling despite a unanimous 1986 Supreme Court decision in a bank robbery case that an unloaded gun is a ``dangerous or deadly weapon.'' While the Supreme Court had held that a gun is an article that is typically and characteristically dangerous and instills fear in the average citizen, the panel rules that a dysfunctional bomb is not characteristically dangerous and a combination of wires and a lighter cannot instill fear. It overturned Hamrick's convictions on these counts. When the Government loses a court case, the Solicitor General determines whether to appeal the decision. Here was a case where an evil coward had tried to bomb a Federal building and kill an important Federal official who had sought to prosecute a terrorist. The facts are extremely similar to the way the President described the Oklahoma City bombing. Additionally, a controlling Supreme Court decision suggested that the fourth circuit panel had decided the case incorrectly. What did the Clinton Justice Department do? Nothing. As the fourth circuit later wrote: The United States, at the direction of the Solicitor General, did not petition either for rehearing or rehearing en banc of the panel's reversal of Hamrick's convictions and sentences on these courts. Nor did the Justice Department file a petition with the Supreme Court to hear the case. Instead, in an unusual move, the full fourth circuit decided on its own to rehear the case. The full court found that the bomb was a ``dangerous or deadly weapon'' and affirmed Hamrick's convictions. Mr. President, a letter bomb mailed to a Federal building is a dangerous or deadly weapon and a destructive device. That is just common sense. But where was the administration when the decision was made to accept the overturning of the criminal charges against this terrorist? Where was the Justice Department, and the Attorney General? They need to be held accountable for a decision that shows insufficient regard for public safety. And what message does the Justice Department's acquiescence send to Federal law enforcement officials on the line every day, or to Federal prosecutors? Before this administration starts talking tough on terrorism, and about how tough it will act in imposing burdens such as infiltration, roving wiretaps, and searches on law-abiding citizens, it should explain why it has failed to take steps to raise the heat on terrorists. Consider how the ruling the Justice Department accepted would affect law enforcement. If the original panel decision were the law, bombs that could not operate would not be dangerous or deadly weapons or destructive devices. Now consider how this approach would have applied to the shockingly similar bombing of the Federal building in Oklahoma City. Suppose that the bomber had been arrested for speeding while driving the Ryder truck on the way into Oklahoma City instead of driving the car on the way out. The police would have seen tons of fertilizer and fuel oil in the truck. But the bomber could not have been prosecuted for transporting a destructive device or possessing a deadly or dangerous weapon because the bomb was not yet rigged to explode. That the Justice Department was willing to accept a ruling that would yield such an astounding result is absolutely unacceptable. Mr. President, even the defendant in the Hamrick case did not argue that the bomb was not a deadly or dangerous weapon in light of the Supreme Court decision. The Clinton administration was willing to accept a judicial decision that was softer on terrorism than the terrorist himself. The American people are owed an explanation, an apology, and proof that steps have been taken to ensure that the serious mistakes the Justice Department made in Mr. Hamrick's case will not be permitted to happen again. Otherwise, the Clinton administration will have a difficult time credibly fighting terrorism. I support this legislation, which will strike a proper balance in habeas corpus and will restore the FBI to its pre-Clinton administration hiring levels. But another reason to support the bill is language in section 626, which, in light of the argument that the administration accepted in Hamrick, will clarify that a ``deadly or dangerous weapon'' includes ``a weapon intended to cause death or danger but that fails to do so by reason of a defective or missing component.'' This language is truly a clarification. Section 111(b) of the Federal Criminal Code always covered assaults on Federal officers with deadly or dangerous weapons, even if by happenstance those weapons misfired, notwithstanding the Clinton administration's position in the Hamrick case. No defendant who has committed an assault on a Federal officer with a defective weapon may use this language to argue that such conduct was legal prior to the date of the passage of this bill. We merely want to prevent other courts from following the fourth circuit's original decision, and we want to prevent the administration from continuing to argue in future cases that a defective bomb is not a deadly or dangerous weapon. I commend Senators Dole and Hatch for including this language in their substitute amendment. And I hope that the bill sends a message to the administration to apply common sense to prosecute terrorists like Rodney Hamrick to the fullest extent of existing law. I yield the floor. Mr. President, I suggest the absence of a quorum.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, we are now in the midst of a budget debate, but in listening to the debate over the last several days it has become apparent to me this is not just a debate over the budget, not just about the need to balance the budget or budget priorities. It is a debate over two conflicting sets of ideas, and ultimately it is a debate over how much faith we have in the American people to support a policy that we all know is right. Many Americans believe that our country is at a crossroads. While we all know that we were the victors of the cold war and we are still strong and prosperous, more and more of our people are coming to the conclusion that there are some things in this country that are simply wrong: the youthfulness and the viciousness of our crime, our welfare dependency and social disintegration that comes from that, a gradual slowing of our economy, our extremely low savings rate and low investment rate, a greater and greater dependency upon foreign money to prop our economy up. Americans wonder how long we can remain strong when we are losing so many things that have made us strong. We look at the lessons of history, and we see that the fate of other great nations where they have gone down the road of bigger government, higher taxes and increasing debt and moral and intellectual laziness. We see how they enjoyed their brief hour upon the world's stage and then moved on and declined. And we wonder if ours is going to be the generation that oversees the decline of the United States of America to the role of a second-rate country. We certainly are not addressing the totality of this situation during this current debate. Indeed, we must question how much in the way of solution actually lies in the hands of the Federal Government. However, this debate [[Page S7216]] does involve an area that is largely under the control of Congress. Indeed, some might say that Congress was primarily the cause of it. And it is the most serious economic problem facing our Nation. That is a debt that is literally bankrupting our country. One of the things most basic to human nature, Mr. President, is looking out for those who we bring into the world, and for most of our country's history we did just that. Through world wars, through a Great Depression, we paid for what we consumed. However, for a quarter of a century or so now, we have gone off on another track. We have gone off on a spending spree, and we are borrowing money now from future generations. Over the years, every interest group imaginable has organized itself and made its demand on the Federal Treasury. And since we are a system essentially of professional legislators whose primary interest is in reelection, the answer to these demands for more Federal dollars is usually yes. So program is piled upon program, and once a program is created and its constituency is created, it is never done away with. It is seldom even reduced. It is usually only expanded. And more and more people are increasingly dependent upon the so-called free money that we are borrowing from our children and grandchildren. Mr. President, it is obvious the American people have decided that this country cannot survive under this old way of doing business. They have rightfully decided that we cannot sustain an almost $5 trillion debt that is still growing. They have decided we will not saddle our future generations with higher interest rates, less affordable homes, fewer jobs, lower wages and a loss of economic sovereignty. They understand we are on the verge of bankrupting two of our most important social programs in this country, Social Security and Medicare, if we do not take immediate steps. In response to this clear mandate, the Republicans on the Budget Committee, without one Democratic vote, have produced a plan that will balance the budget by the year 2002 by slowing the growth in Federal spending from 5 percent a year to 3 percent a year. It protects Social Security, saves Medicare from bankruptcy, maintains the Social Security safety net, reduces the Federal Government and removes power out of Washington back to the people. Of course, the defenders of the status quo continue to do everything possible to defeat these goals. They first denied the need to balance the budget. They are only following the President's lead in that regard. He has submitted what the Washington Post called a ``weak and directionless budget'' that will add over $1.2 trillion to our national debt over 5 years. Then his senior economic adviser claimed that cutting the budget would actually be bad for the economy. These developments were met with universal dismay and derision and have since been abandoned by our friends across the aisle. We tried to pass the balanced budget amendment. At this point the defenders of the status quo, being able to see which way the wind was blowing, acknowledged the need to balance the budget but forcefully argued that we should balance it without a constitutional amendment; that all we needed to do was exercise our responsibility as legislators. Besides that, they said, tell us how you are going to balance the budget. We want to see a plan. And they defeated the balanced budget amendment by a single vote. Now the Republicans have submitted the balanced budget resolution. We have detailed a plan, and we are ready to take on the responsibility. Now our colleagues on the other side of the aisle, backed into a corner, slip their favorite old worn out record on the Victrola. Side A is entitled ``Scare the Sick and the Elderly.'' Almost as popular with them is the flip side called ``Class Warfare''--in other words, the same old record that they were playing during the last congressional elections, which proved so rewarding for them. They rail against tax cuts for the rich when in fact there are no tax cuts in this budget for anybody, much less the rich. However, they correctly point out that there might be $170 billion dividend if in fact a balanced budget is certified. And they seem petrified at the thought that this might actually result in some taxpayers getting the benefit of some of the money in the form of a tax cut; in other words, getting to keep a little bit of the money that they earned in the first place. So now instead of helping us balance the budget, they are busy trying to figure out how to spend this $170 billion that they had no hand in producing and that does not even exist yet. Clearly, the tax-and-spend philosophy that has gotten us into the trouble that we are in is alive and well. Mr. President, the opponents of this budget who for so long promoted big spending and every pork barrel project to come down the pike, including the President's ill- fated stimulus package, and who have opposed the balanced budget amendment and a balanced budget are now saying that we are not balancing it in the right way. They say, ``We definitely want a balanced budget, but not at the expense of group A or group B or group C'' and the groups go on and on and on. In other words, we cannot reduce the rate of growth in any areas even where the growth rate is out of hand if it actually affects anyone. The defenders of the status quo talk about protecting children when it is their policies of the past that have robbed these children of their future prosperity. They talk about defending the college student when it is the philosophy of ``spending is the solution to everything'' which has greatly diminished the value of a college degree because so many of our students entering college nowadays cannot even read and write. They talk about defending the elderly when it is their policies, the policies of the past, that have put us on the verge of bankrupting both Social Security and the Medicare trust funds. They talk about making sure that the wealthy receive no additional breaks, and yet it is the wealthy who are the bond holders who are receiving the astronomical interest payments that we make on our national debt. According to the Congressional Budget Office, without deficit reduction, annual interest payments by 2002 will balloon to $334 billion. No, the plain truth is that the only way for these groups to get what they deserve and to prosper in the years ahead is to turn our backs on the failed policies of these so-called defenders and rectify the damage that they have already done by moving toward a balanced budget. The balanced budget resolution before this body is the first major step toward that end. These budget critics want to refight the eighties again, ignoring their own part in the spending binge that ran up the deficit. They say it was the President's fault back then. I say to my friends on the other side, the constitutional authority of the President of the United States has not changed. If it was the President's fault in the eighties, whose fault is it now? As a recent Washington Post editorial said: Democratic complaints about Republican budget plans will continue to have a hollow and unpersuasive ring until the Democrats begin to come up with specific alternatives of their own. Until then they will merely seem to be defending the present spending pattern, with its succession of $200 billion a year deficit reaching as far as the eye can see that President Clinton projected in the budget he sent to Congress last February. Now, it should be kept clearly in mind that we are not going through this exercise simply to avert disaster, although that would be reason enough. We are doing it to ensure future prosperity, Mr. President. Eliminating the deficit could bring widespread benefit in the form of lower interest rates for mortgages and business loans. That would spur a boon in housing construction and business investment which would create jobs and raise incomes. The Congressional Budget Office states that the package of a credible balanced budget plan would lead the bond market to bid down interest rates almost immediately. New home buyers would be clear winners. If interest rates dropped only 1 percent, a young couple with a $100,000 mortgage would save enough over the life of that mortgage to put one of their children through college for a year without any help from the Federal Government. Roger Brinner, chief economist with the forecasting firm of DRI McGraw-Hill estimates balancing the budget would raise America's yearly output an extra 2.5 percent over the next 10 years. [[Page S7217]] That would mean an average of an extra $1,000 a year for each American family. He adds that the economy would create 2.4 million more jobs by the year 2005 than if the deficit remained unchecked. The General Accounting Office projects Americans living by 2025 would enjoy per capita incomes of $9,500 higher if Washington succeeds in bringing the deficit under control. Many analysts believe that the dollar slide in March was due to our failure to pass a balanced budget amendment. The U.S. dollar has rebounded in foreign exchange markets during the last several weeks, in part because of a growing belief among foreign investors that the United States is finally moving to put its economic house in order. So, Mr. President, we must reject the ideas and practices of the past which have caused this problem. We must also reject the rhetoric which appeals to fear and prejudice and appeals to greed to use and consume everything we can get our hands on today and not concern ourselves with the future and the fact that it is our own children's birthright that we are consuming. And so, Mr. President, let us get on about with what the people sent us here to do while it is still not too late to change our direction. We as Members of this body must have the courage to stand up to the demagoguery and any short-term political risk we might be taking by doing what we know is right. I am firmly convinced ultimately the American people are willing to do what is necessary to ensure a brighter future for our children, and we must have the wisdom to follow them and the courage to lead them. I yield the floor. Mr. DOMENICI addressed the Chair.

Mr. THOMPSON

Mr. THOMPSON. I thank my colleague from Wyoming. As usual, he hits the mark squarely. He outlines the problem. Mr. President, I think what we are about here today is a part of a broader consideration, and that is our responsibility to the American people. We are getting about, I believe, responding to an issue here that is on the minds of the American people and we are doing something that is different, I think, than what has been going on in this body and in this city for a long time. And that is, we are facing up to our responsibilities. Mr. President, I feel that for a long period of time in this country the U.S. Congress, in being more interested in the next election and the next election cycle than the next generation, for a long time has been putting its problems off and rolling them forward again and again and again hoping that perhaps the next generation or someone else will figure out how to dig out from under the present problems that we have laid on them. This Medicare situation falls into that category. We have to face up to it. I believe it is the responsibility of this body to identify those items, those matters which we have concluded represent a substantial affect on peoples lives in the future. I think the Medicare trustees have put us in that position. They have given us information. We have the bully pulpit. We must inform the American people of what is happening. There is no room for recriminations right now as to how we got there, why we got there. We need to get about solving this problem. Put in blunt terms, Mr. President, the trustees have informed us that, if we do not do anything, in 7 years Medicare is going to go broke. I do not know how much more simply we can explain it. Medicare expenditures are increasing at the rate of 10 percent a year. We cannot sustain 10 percent a year. Now, the budget that has been put forward by the Budget Committee increases Medicare spending. It increases Medicare spending at the rate of 7.1 percent a year; not the 10 percent, but 7.1 percent. We can get the job done at that rate, Mr. President. We can save the trust fund. Obviously, it has budget implications. But, separate and apart from any budget considerations, the Medicare problem, the Medicare crisis, must be addressed. The budget that was submitted at 7.1 percent is an increase of Medicare spending of twice the rate of inflation. We can increase Medicare spending at twice the rate of inflation and still, by not going the full 10 percent, we can get out of this problem and save the Medicare Program for the 36 million Americans that depend on it. You would think that when you have a clear problem like that pointed out by a bipartisan commission--everyone in this body knows there is a substantial problem--that you would have both branches of Government, the executive branch and the legislative branch, pulling together. You would think you would have both political parties pulling together; that this is indeed a matter of national interest that we all have to work together to solve. Unfortunately, Mr. President, it seems that the President of the United States has taken the position that, because we did not pass his health care bill last year, he is going to somehow get back at us by not being a player in this game. These are tough decisions. These are tough political decisions. Even reducing the rate of growth on any program in America is a tough political decision, one that we are prepared to face up to. But next year, being an election year, apparently the President has decided to sit on the sidelines and not participate because we did not pass his broad-sweeping health care program last year. I think the President misses the point. People knew last year that the problem was not in the private sector. The problem was with the Federal sector; that is, the Medicare-Medicaid sector. In the private sector, costs are actually stabilizing; in many cases costs are actually going down in the private sector. What the American people said ``no'' to was a broad-sweeping, perceived-to-be Federal takeover, which included the private sector. They did not say ``no'' to reforming and saving the Medicare Program that we have in this country. And that is what we are dealing with here today. So let us decouple that. Let us get away from the past politics and who did what when. Let us give the President the benefit of the doubt. Let us say everything he says from a political standpoint is true; that he tried to save the entire health care system and we would have saved all this money. The facts are otherwise in my opinion, but let us give him the benefit of the doubt. Let us say, assuming all that is true, assuming all that is true, that is the past. This is the future. The problem is a severe one. We have been told by a bipartisan commission that we are going to go bankrupt in this system within 7 years if we do not do something. We have to pull together to save the Medicare system for the 36 million Americans that depend on it. How do we do that, Mr. President? I do not know anybody in this body or anybody on this side of the aisle who claims that we have all the answers as to exactly how to do that. The Senator from Wyoming has mentioned several different proposals, possibilities. It has been suggested that a commission be formed to look at ways of saving additional moneys, hopefully keeping the same amount of benefits; not being under the illusion that we can squeeze providers forever and get it from that source, but to have more choice, give elderly people more choice and more opportunity, perhaps, to save moneys that have heretofore been spent on the Federal program by availing themselves of options in the private sector. There are any number of possibilities there. But we have to work together to solve this problem. We have to put aside partisan politics. We have to put aside past politics. The problem is too great. There are too many people that depend on our solving that problem. Thank you, Mr. President. I yield the floor. Mr. WELLSTONE addressed the Chair.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, it gives me great pleasure at this time to request the unanimous consent of my colleagues to have printed in the Record a proclamation by the Governor of my State of Tennessee; Don Sundquist. On March 21 of this year, the Honorable Governor Don Sundquist signed the proclamation that the week of April 17-22, 1995, shall be known in Tennessee as National Association of Retired Federal Employees Week. Our State's chapter of this national organization is very spirited and active. Many members of this association have volunteered their time and energy to help organize relief and recovery efforts in Oklahoma City. It is this spirit of contribution that continues to distinguish all civil servants, retired and employed.

Mr. THOMPSON

Mr. THOMPSON. In the medical area also.

Mr. THOMPSON. You mentioned the lady who was sobbing in your office. It reminded me of that visit I had last week. It was a family from Nashville who had lost their 5-year-old daughter. She had gone in for a routine tonsillectomy. One error followed another; many, many things went wrong. The clinic was hiring on the cheap. They had a drug addict there administering to this person.

Mr. THOMPSON. Was the Senator present when I made my statement concerning the family who visited me in my office concerning their 5- year-old daughter recently?

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

Mr. THOMPSON. Mr. President, I, too, share the concern of the Senator from Alabama concerning the application of the commerce clause to some of the amendments that we have already adopted. I suppose the courts will have to determine whether or not there is sufficient interstate commerce with regard to some of these matters in the future. In response to some of the comments made by the Senator from Washington, I have already pointed out that according to the American Bar Foundation, which is an independent body, separate from the American Bar Association, filed in Federal court, plus those removed to Federal court--in other words, the subject of this amendment--you have approximately 45 percent of the product liability cases that were filed last year. So this is not a situation where only a handful of cases would be brought in Federal court. Second, the amendment which I propose is not, as it has been characterized, a killer amendment designed to oppose any kind of reform. We started off early on in this body dealing with frivolous lawsuits. The only provision in any of this debate that actually deals with frivolous lawsuits is the one Senator Brown proposed concerning rule 11. I supported that. We need a stronger rule 11 to take care of frivolous lawsuits. Beyond that, it would be easy enough to simply oppose any legislation because it interferes with States' legitimate rights in these areas. We are not doing that. We are trying to strengthen this and come up with something that not only will pass but will not cause us to regret our actions later. Our amendment will give us an opportunity to see whether or not these broad-range measures work in the Federal court system, which is the system that we ought to be concerned with and with which we can legitimately deal. The question arises: Why would anybody ever file a lawsuit in Federal court anymore under the Thompson amendment? There are several reasons. For example, the underlying bill, I believe, has a 20-year statute of repose. Tennessee has a 10-year statute of repose. If it is past 10 years since the product was manufactured, you would certainly bring the case in Federal court, not State court, because you would want to get the benefit of that statute of repose. Also, the State of Washington and other States have no punitive damages at all. A plaintiff would certainly not want to bring a case in State courts in Washington if he had an opportunity to do otherwise. On the preemption of State law, perhaps we are just passing in the night, as far as our conversation is concerned, but the underlying bill certainly preempts State law with regard to the subject matter covered by the underlying bill. So you have a Federal circuit determining what the interpretation of that law is and then the States have to follow that Federal court interpretation of that Federal law in cases that are decided before them. On the question of forum shopping, under the underlying bill, you could have 50 different sets of rules in 50 different States. For example, with regard to caps, they are only caps. States are free to do more restrictive things if they are within those caps. They cannot do more liberal things, as far as plaintiffs are concerned. They can do more restrictive things. You can have 50 different sets of rules. You can have plaintiffs shopping through 50 different States in some situations under the underlying bill. At least under this amendment, there will be many cases that are properly removable to Federal court. When those cases are removed, we will have one Federal standard. So, Mr. President, I respect my distinguished colleague from Washington and what he is trying to do in his strong fight for a products bill. I suggest to him that what we are doing here, in the long run will strengthen his efforts instead of diminish them. I certainly hope this amendment gets full consideration in this body. Thank you. I yield the floor. Mr. HATCH addressed the Chair.

Mr. THOMPSON. That is correct.

Mr. THOMPSON. That is correct, I say to the Senator.

Mr. THOMPSON. That is exactly correct.

Mr. THOMPSON. Under my amendment, that is correct.

Mr. THOMPSON. That is absolutely correct.

Mr. THOMPSON. Mr. President, I send the amendment to the desk.

Mr. THOMPSON. Mr. President, we are now engaged in a national debate on an issue that is important to the future of this country. The issue before us essentially is should the U.S. Congress federalize certain portions of our judicial system that, up until now, have been under the province of the States? And, if so, should we make major changes or more modest ones? I cannot think of a more important subject for us to consider than our system of justice. The judicial system is a bedrock of our free society. It must be fair. It must be perceived to be fair. Our citizens must have confidence in it. As we continue our deliberations, we must do so with the purpose in mind of striving for a system that is most likely to achieve justice in most cases. It is serious business, and our decisions should not depend upon whose favorite ox is being gored at the moment. At the outset, I must say that we could do this process a service by refocusing the terms of this debate. It seems that we have in large part gotten off to a somewhat rocky start, and have been spending too much time arguing about which side is the most greedy and which side has contributed the most to which party's political campaigns. Most of the literature, most of the press, and a lot of the conversation has had to do with those subjects, and it is an all-too- easy refuge for those who really do not understand the issues or who do not care and are simply trying to win the debate. As far as the debate going on between the private interests of each side of this legislative battle, I have not noticed that either side is going against its own economic interest. They are all sophisticated and well financed. It seems that nowadays the debate on important issues is going the way of political campaigns: concentrating on grossly distorted anecdotes, sound bites, and 30-second commercials designed to appeal to ignorance and emotion. That is fine for the contestants in this matter to engage in if they choose to do so, but this body has a duty and a different function. First, we need to address the issue of federalism. At the outset, I must state that I have great concern with any proposal that imposes a Federal standard in an area that has been left up to the States for 200 years. I would remind many of my Republican brethren that we ran for office and were elected last year on the basis of our strong belief that the government that is closest to the people is the best government; that Washington does not always know best; that more responsibility should be given to the States because that is where most of the creative ideas and innovations are happening. Whether it be unfunded mandates, welfare reform, or regulations that are strangling productivity, we took the stand that States and local governments should have a greater say about how people's lives are going to be run, and the Federal Government less. People have different notions about the importance of philosophical consistency. But let there be no mistake about what we are doing if by legislative fiat we usurp significant areas of State tort law, passed by State legislators, elected in their own communities. We are going against the very fundamentals of our own philosophy which has served as our yardstick by which we measure all legislation. In the Contract With America, every provision, in one way or another, has to do with limiting the power or authority of the Federal Government or one of its branches with regard to the States or individuals except one: the change in the legal system. That provision has nothing to do with limiting or changing the rules with regard to the Federal Government--but, rather, with the Federal Government changing the rules between two private parties, the very thing we have been so critical of in the past. I would say to my friends who are conservative in all matters except this one: If and when we are no longer in the majority, we will stand naked against our opponents as they rewrite our tort law for America to fit their wishes and constituencies because we will have lost the philosophical high ground. It is ironic that all of this is occurring at a time when the philosophical battle that we have been fighting for so many years is finally being won. Several recent Federal court decisions, including the recent Supreme Court decision in the Lopez case, have finally begun to place some restrictions on Congress' use of the commerce clause to regulate every aspect of American life. Conservatives have been complaining for years that congressional expansion into all areas, with the acquiescence of the Federal courts, has resulted in rendering the restrictions of the commerce clause meaningless. Now the courts have let Congress know that there are limitations to Congress' authority to legislate in areas only remotely connected to interstate commerce. And yet as we won the war, we take the enemy's position. We are now the ones who seek to legislate and regulate medical procedure in every doctor's office in every small town in America. And we are the ones who now seek to legislate and regulate the fee structure between a lawyer and his client in any small town in America. It is not as if the States have abdicated their responsibilities in this area. Many States have tougher and more restrictive laws than those advocated before this body. Four States have no punitive damages. Some States have caps on punitive damages. Most States have gone from a preponderance of the evidence standard to a clear and convincing standard for punitives. My own State of Tennessee has a 10-year statute of repose while the products bill before us allows 20 years. And as was recently pointed out by the National Conference of State Legislatures, ``Each of the 50 State legislatures, many configures by a fresh influence of Republican tort reformers, is considering some type of overhaul of the legal system.'' It is not as if State legislatures wish to be relieved of the burden of dealing with the subject of tort reform. As the president of the National Conference of State Legislatures recently said: As you know, NCSL regards the unjustified preemption of State law as a serious issue of federalism, comparable in many ways to the issue of Federal mandates. Federal mandates erode the fiscal autonomy of States, while Federal preemption erodes the legal and regulatory authority of States. Every year Federal legislation, regulations, and court decisions preempt additional areas of State law, steadily shrinking the jurisdiction of State legislatures. product liability law, strictly on federalism grounds. Tort law traditionally has been a State responsibility, and the imposition of Federal products standards into the complex context of State tort law would create confusion in State courts. Without imposing one-size-fits all Federal standards, States may act on their own initiative to reform product liability law in ways that are tailored to meet their particular needs and that fit into the context of existing State law. However, we are told that, while all of the above may be true, the system has totally gotten out of hand. It is said that our Nation is smothering under an avalanche of litigation and frivolous lawsuits; that our legal system is nothing more than a lottery system and that the lawyers are the only ones who really win the lottery. Well let us examine all of that. In the first place, I want to say that in any system run by human beings there are going to be abuses and miscarriages of justice and our legal system is no exception. For example, there is no question but that some frivolous lawsuits are filed. However, it should be understood by the American public there is not one thing about any of the substantive legislative proposals we have considered or will consider that will in any way diminish the possibility of frivolous law suits. No proponent of reform will argue that there is. There is simply no way to prejudge a case before it is filed. What we can do and should do is impose a penalty upon the litigants and the lawyers once a court has determined that a lawsuit is frivolous. The Brown amendment, which strengthened rule 11 in Federal cases, does that. I voted for it, and I hope it finds its way into any legislation that is finally adopted. Also, I am convinced that some industries in some States are being hit especially hard. I am very sympathetic to those that produce products or render professional services, that provide jobs for working people, and that make the wheels go around in our economy. That is why I am working to help relieve the burden of regulation that they face and the tax burden that too often penalizes investment and productivity. My own personal opinion is that the number of lawsuits brought in this country is too high and that it is a reflection of more serious things going on in our society. However, nothing in the proposed legislation would cut down on the number of lawsuits, and I do not think anyone believes that it is Congress' role to place a quota on the number of lawsuits that can be filed in this country. We have reached a point where a lot of people would support any legislation if they thought it would hurt lawyers. And there is no question that lawyers are often times their own worst enemy. My own opinion is that the profession has become too much like a business, too bottom line oriented, that lawyer advertising has hurt the profession that some of the fees being reported from Wall Street and other places over the last decade or so have caused the public's regard for the legal profession to fall dramatically. Frankly that is something that the U.S. Congress should be able to appreciate. So we have an imperfect system in an imperfect world. However, there is another side to the story. The fact of the matter is that all things considered, the system has served up pretty well for a long period of time. Our State tort system has provided us with a form of free market regulation. Goals like achieving product safety are reached without additional and intrusive government mandates that other countries have imposed as a substitute for a tort-based compensation system. Also, in the State courts during 1992, all tort cases amounted to 9 percent of the total civil case load. In the Federal courts, product liability claims declined by 36 percent between 1985 and 1991, when one excludes the unique case of asbestos. Since 1990, the national total of State tort filings has decreased by 2 percent. If this trend continues in the next 10 years, State courts will experience a decline of 10 percent in State tort filings. As a matter of fact, the primary cause of the surge in litigation in Federal courts has been disputes between businesses. Contract cases, which make up only one type of all commercial litigation, have increased by 232 percent over the period of 1960 through 1988. And there is a lot going on that does not meet the eye that has to do with self regulation in a free society. Every day all over the country lawyers are telling clients that they do not have a winnable case, or that, although they have a pretty good case, the expense involved is not worth the potential recovery. You see, lawyers do not make money on frivolous lawsuits. Insurance companies learned a long time ago that paying off on frivolous cases in order to avoid potential litigation expense does not pay off. And the plaintiff lawyers know that the insurance companies will not pay extortion. Also going on every day in this country are cases which are settled where a person was wrongfully injured and received a reasonable amount of compensation. That is most cases. They do not make the newspapers. Also going on every day in this country are decisions by insurance companies not to settle with the plaintiff even though he is clearly entitled the recovery because he is a little guy and stretching it out for a couple of years and causing his lawyer to have to bear the burden financing the depositions and other expenses will make the plaintiff and his lawyer more amenable to a lower settlement later on. Besides, they know that they can put the settlement money to good use for that 2-year period and make money on that money. On balance, it more than makes up for their own attorneys' fees. Also, going on quite often, are situations where a large corporate defendant is caught having committed outrageous conduct which resulted in tremendous injuries to innocent people. Often these cases are settled even before suit is filed because the plaintiffs do not want to go through a lawsuit and defendants know what might be in store for them if the plaintiffs get a mean lawyer who knows what he is doing. This is the real world. This is the rest of the iceberg of our legal system that most people do not see. It is free market, give and take, sometimes rough and tumble, and sometimes produces injustices. But we have always believed in America that, with all its faults, the best way to resolve disputes is not at 20 paces but with a jury from the local community who hears all the facts and listens to all the witness and who is in the best position of anybody in America to decide what is justice in any particular case. Then you have a judge who passes on what the jury did and then you have at least one level of appeal to pass on what the judge did. And I can assure you--and anybody who has ever been there knows this--that you do not find much run-away emotion left by the time you get to the appellate level in most State courts. So if we are determined to ring out the injustices that slip through the State system here at the Federal level, what are we going to replace it with? What are we going to replace it with? A one-size-fits-all standard? One standard that would apply to mom and pop and to General Motors? One standard that would cover both the frivolous lawsuit and the lawsuits involving gross misconduct by the defendant? In our haste to correct one problem, are we not running the danger of creating greater problems? Let me give you another example from real life. A lot of people are concerned about frivolous lawsuits against the medical profession. I share that concern. There have been good physicians wrongfully sued in this country. I think the system pretty well takes care of the problem in the end, but I regret that they have to go through that process. I am sure most of them were very displeased with me--my good friend and his supporters--when I could not go along with a $250,000 punitive cap on their exposure. I wish I could have gone along with it. But I could not. Because, not only do I have grave reservations about Congress legislating in this area, but in addition, the same cap that would legitimately and properly help them in some cases would unfairly hurt others in other cases. That is the problem with the one-size-fits all approach in Washington. Let me tell you a little story. David and Tammy Travis from Nashville, TN, came to see me last Wednesday, April 26. They have been following this debate and they wanted to tell me about their daughter Amanda. Amanda was a 5-year-old girl who was scheduled to Nashville. Amanda arrived at the clinic at 6 a.m. A nurse, not an anesthesiologist, administered the anesthesia and he administered the wrong anesthesia. Also, Amanda was hooked up to the wrong intravenous solution, as well. The errors continued as Amanda was given demerol even though she was not complaining and was not even awake. When Amanda began throwing up blood, the nurse informed the family that this was normal. By 2 o'clock that afternoon Amanda was lethargic. The nurse told the family that a doctor wanted to keep Amanda overnight, which was represented to be normal. However, the nurse had not contacted the doctor and had made that decision herself. Later in the afternoon, Amanda could not breathe. The short-staffed hospital had only a nurse and a sitter on duty. In fact, the nurse who administered the anesthesia was a drug addict, who subsequently died of an overdose while preparing to go into an operating room for another patient. The clinic had known that the nurse had this drug problem. When Amanda was hooked up to emergency equipment, her head blew up like a balloon, and she began to bleed out of her mouth, as her father used his handkerchief to try to stop the flow. The nurse ran off to get more equipment to open the airways. By this point, Amanda was getting so little oxygen that Mrs. Travis pleaded that 911 be called. Someone at the clinic did call 911 and the paramedics rushed Amanda to Vanderbilt Hospital. By this point, Amanda was essentially dead, although the paramedics did their best to revive her. After Amanda died, her parents were not given timely copies of her records from the clinic. Amanda's parents did, however, obtain the records from Vanderbilt. When they received the clinic's records, it was obvious that the clinic had altered the records to cover up their errors. The clinic tried to make it look like Amanda had been fine when she left the clinic, and that it was the paramedics who had messed up. The case went to trial about 2 years after the lawsuit was brought. The Travises are people of modest means. Their lawyer, Randy Kinnard of Nashville, financed 48 depositions and other expenses out of his own pocket over the 2-year period. The case was settled during trial for $3 million, an amount that reflected the clear liability of the clinic and availability of punitive damages. The lawyer's fee, incidentally, was 30 percent. The Travises traveled to Washington with their story even though Mrs. Travis was under doctor's orders not to travel as a result of recent knee surgery. They came to my office with Mrs. Travis in a wheelchair. The Travises have no further financial interest in any of this legislation. They simply want to ask me to try to help make sure that we did not do anything up here that would make it more likely that other parents would lose their little girls the way they did; that we did not do anything to make it more economically feasible for hospitals or large companies to hire on the cheap or to cut corners. The question presented to me is whether or not I am going to be a part of a process that tells Tennesseans that they cannot award this family $3 million if a jury in Tennessee, after hearing all the evidence, gives them that amount, or a company, realizing that they are finally at the bar of justice, coughs up that amount. I will not be a party to that. We had another situation in Hardeman County in rural west Tennessee a few years ago that is instructive. A chemical company contaminated the region's groundwater. Residents exhibited various forms of disease: cancer, liver damage, kidney, skin, eye and stomach ailments, and nervous, immune, and reproductive system disorders. The jury found the chemical company had knowingly and recklessly dumped the chemical waste at its landfill site, failed to make the dumping site leakproof, disregarded the warnings of contamination by one of its own senior employees, failed to warn residents or government officials of the dangers, and attempted to cover up evidence when an investigation was initiated. Residents of Hardeman County recovered $5.3 million in compensatory damages and $7.5 million in punitive damages. Do I think that Congress should tell Tennesseans that they cannot allow the jury who heard the case to award those damages? I do not. I get the feeling that there are cross currents running through the Senate at this point in our deliberations. I believe that there is a strong and understandable feeling that we should pass some tort reform measure in this session of Congress. I think, however, that there is another feeling that we are not quite sure of what we ought to pass and we fear that we do not fully appreciate or understand the effect of what we may be about to do. It seems to me that the responsible thing to do is to take a second and harder look at the proposals before us and try to respond to a legitimate Federal interest while resisting the temptation to federalize 200 years of State law that has undergone substantial reform and is still being reformed as we deliberate. I suggest that because of the interstate nature of the activity that there is a legitimate Federal interest in the products liability laws of this Nation. Approximately 70 percent of all manufactured goods in this country travel in interstate commerce. I believe that this is one area under consideration that would pass the commerce clause test. Furthermore, not only do the products travel in interstate commerce but the litigants in product litigation are often also interstate in nature in that they are citizens of States different than that of the manufacture, thereby creating diversity jurisdiction, and are able to avail themselves of the Federal court system. Therefore, it would seem reasonable to legislate in an area involving interstate commerce with regard to litigation involving our Federal court system. Therefore, I am offering on behalf of myself, Senator Cochran, and Senator Simon an amendment to limit the bill's application to cases in Federal court. If my amendment were adopted, and a plaintiff filed a case in Federal court under diversity of citizenship jurisdiction, this Federal legislation would govern the case. If the plaintiff filed this suit in State court, State law would control. However, if the defendant successfully removed a case filed in State court to Federal court, this Federal law would apply. My amendment would restore the federalism that the bills currently drafted would threaten. At a time when the American people overwhelmingly believe that the Federal Government has obtained too much power at the expense of the people and the States, we should not adopt a Washington-knows-best approach to tort law. Particularly troubling is the selective preemption H.R. 956 creates. States cannot provide less protection to defendants than the bill mandates, but States are not prohibited from providing more. It is the bill's selective preemption that guarantees that it will not produce a uniform response to a supposedly national problem. The preemptive features of the bill overlook that Americans are unique individuals. Moreover, States have their own right to determine the law that should be applied to their own special situations. My amendment is based not only on theories of federalism, it also recognizes the enormous practical problems the bill, as currently drafted, would cause to State-Federal relations. Because State law would still govern tort cases to the extent that the bill did not preempt it, there would be numerous questions to litigate concerning the relationship between the Federal law and existing State laws. New, different, and inconsistent interpretations of the Federal law and the State laws would result. Under the underlying bill, Federal courts of appeal would resolve these issues. Those courts, not State courts, would ultimately determine the scope and meaning of State law as it interacts with this bill. To my mind, Federal courts should be bound by State court decisions on the meaning of controlling State law. By contrast, this bill would make State courts follow Federal court interpretations of controlling State law. Such a regime turns federalism on its head. As I previously stated, my amendment recognizes that interstate commerce is the justification for a Federal tort reform bill. And it is interstate commerce that justifies Federal court against citizens of another State. I believe that the commerce clause rationale of the bill corresponds precisely with the reasons underlying Federal diversity jurisdiction. Moreover, by adding this amendment, the bill would actually provide a uniform law in Federal court to resolve the tort cases to which it applies. The existing bill would not achieve that result. Despite the claims made, no one truly knows the effect that this underlying bill will have on the ability of injured persons to recover adequate compensation for their injuries. Nor will anyone know whether competitiveness of American businesses will be enhanced or insurance premiums will fall if H.R. 956 is enacted. At the same time, the bill would displace 200 years of law based on actual experience. If the bill failed to achieve its objectives, there would be almost no means of unscrambling the federalized egg. By contrast, applying the bill only to Federal court cases would provide an opportunity to experiment. If the bill's ideas work, States can adopt these rules as their own. Potentially, a preemptive approach might then make sense. But if the bill created numerous practical problems, well-tested State law would remain undisturbed while Congress acted to fix the problems in the Federal law. The practical effect of the amendment would be that defendants sued out of State in many instances would be able to remove their cases to Federal court and obtain the Federal rule. Defendants sued in their home State courts would not be able to remove the case to Federal court. Thus, those defendants would be governed by their State law as applied by their own State court. I believe that this is a much more sensible approach than the one now before the Senate, and one consistent with the Federal system and the Constitution. Mr. President, we should protect the right of the States we represent to maintain their core function of crafting law designed to compensate injured persons. We should also permit Federal courts to apply Federal law to those cases that represent truly national concerns. We should certainly be careful before we displace many years of law based on experience. My amendment would accomplish all those goals. I strongly recommend its adoption. amendment no. 618, as modified, to amendment no. 596

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

Mr. THOMPSON. Mr. President, I call up an amendment numbered 618, which is at the desk, and I ask for its immediate consideration.

Mr. THOMPSON. Thank you, Mr. President. Amendment No. 618 to Amendment No. 596 (Purpose: To limit the applicability of the uniform product liability provisions to actions brought in a Federal court under diversity jurisdiction)

Mr. THOMPSON. I am sorry, I missed that.

Mr. THOMPSON. If I could respond to that point just a moment, I think the Senator is reflecting a conflict that is going on within a lot of us. A lot of us understand the concern of our constituencies that businesses, and so forth, have legitimate complaints. A lot of us are also concerned about this rush to judgment, where the U.S. Congress and the Federal Government are on the verge of supplanting 200 years of State law, at a time when many of us are saying in other areas, whether it be welfare reform, regulatory reform, Government out of the States' business. States are where the innovation is going on. Let them take care of themselves. So we are all engaged in that conflict. Product liability has been discussed in the Chamber of this body for many years, long before I arrived. The Senator, I am sure, has engaged in those debates over the years. I think there is a feeling that this is an area wherein there is more justification for our involvement on the Federal level because of the inherent interstate nature of the activities. Seventy percent of all manufactured goods now travel in interstate commerce. If I had my desire, if I could write the legislation, or I could come to the conclusion, perhaps this is not where I would be. But I see the freight train going down the tracks, and I think we at some point have a responsibility to at least try to make sure that we wind up in as good a position as we can. And for me, that is carving out an area and saying, look, if we are going to do this, let us not go all across the board. Let us not usurp all State laws across the board dealing in these areas without knowing what we are doing. The Senator from Alabama mentioned and in 5 minutes raised a dozen questions that nobody knows the answers to. The answers will be decided through reams and reams and reams of court decisions throughout this Nation over the next several years. We will create more lawyer work than we ever dreamed of because of what is going on here. So what I am saying is, let us take the basic part of the original underlying legislation, which has to do with products liability, which has more of an interstate nature to it than what goes on in some small law office, what goes on in some accountant's office, what goes on in some doctor's small office or any of these other areas, and couple that with the interstate nature of most of products litigation, and that is diversity cases. Incidentally, I disagree with my distinguished colleague from Washington concerning the number of diversity cases filed in Federal courts. Last year, the Administrative Office of the U.S. Courts reported that 22,000 products cases were filed--tried or disposed of-- in Federal courts. That represents approximately 45 percent of all products cases. So, close to half of all products cases, under my amendment, would get the benefit of this new Federal rule and legislation that we are proposing. But at least we would not be, in one fell swoop, supplanting all of the State law that has been developed over 200 years. I believe that it is justified and it makes some sense in this area and would allow us to take a deep breath and look and see what we have wrought, whether or not it is working, whether or not insurance rates are being affected, whether or not this is something that States want to emulate or something that we, as the U.S. Congress, want to backtrack on and say we made a mistake. Under this, we could unscramble the Federal egg a whole lot better than if we changed all the laws in the States, got years of decisions, new decisions based on those laws, learned that we were wrong, got a new group in the majority in this body and in the House and had them come in and impose their will and their concept of justice and respond to their clients and their constituents. I think it would be a mess. I think we are asking for a real mess down the road. What I am trying to avoid with this amendment is that kind of result, which I think would wreak havoc with our court system in this country. (Mr. HATCH assumed the chair.)

Mr. THOMPSON. That is absolutely correct. In other words, in other diversity cases not covered by the provisions of this amendment or the underlying bill, Erie would apply and the substantive law of the States as always would still apply in those cases.

Mr. THOMPSON. I think I will need approximately the same. Would it be all right if we went 20 minutes or so and then brought up the amendment of the Senator from Kentucky?

Mr. THOMPSON. How much time does the Senator from South Carolina need?