March 19, 1996 - Issue: Vol. 142, No. 38 — Daily Edition104th Congress (1995 - 1996) - 2nd Session

[Pages S2285-S2300]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  BALANCED BUDGET DOWNPAYMENT ACT, II

  The Senate continued with the consideration of the bill.


                Amendment No. 3553 to Amendment No. 3466

  Mr. HATFIELD. Mr. President, I send to the desk the managers package, 
as I have outlined it and explained it.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Oregon [Mr. Hatfield], for himself and Mr. 
     Byrd, proposes an amendment numbered 3553 to Amendment No. 
     3466.

  Mr. HATFIELD. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. HATFIELD. Mr. President, again, let me call to the Senate's 
attention--as I have done now in the Republican caucus at lunch, and 
others in the Democratic Caucus, I think, had similar material--that we 
have put together, with the clearance of Senator Byrd on the Democratic 
side of the aisle, a managers package to accommodate those Members who 
were not present when a unanimous-consent agreement was entered into at 
7:45 last Thursday night. The deadline was 8:05. So there were those 
who were negotiating at that time with other colleagues.
  I have recited those amendments and we have indicated very clearly 
that people's rights to either modify, to change, second degree, or 
strike were certainly open.
  We have waited now close to half an hour for anyone to appear to take 
advantage of that opportunity.
  I ask unanimous consent that the statements that the following 
statements and colloquies--I am just boxing those together--be placed 
in the Record. As I recited before, there is a statement by Senator 
Hutchison; a statement by Senator DeWine; a colloquy by Senators 
Hatfield and Specter; a colloquy by Senators Stevens and Campbell; a 
colloquy by Senators Specter and Pell; a colloquy by Senators Simon and 
Specter; a colloquy by Senators Hollings, McCain, and Specter; a 
colloquy by Senators McConnell and Leahy; a colloquy by Harkin, 
Johnston, and Specter; a colloquy by Senators Simon and Specter; a 
colloquy by Senators McCain and Burns, which I ask be placed in the 
Record in the appropriate place following the Burns amendment that we 
will have adopted in this package.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                                SEMATECH

  Mrs. HUTCHISON. Mr. President, the purpose of my amendment is to 
restore the funding level for Sematech to the full amount authorized in 
the 1996 Defense authorization bill.
  Mr. President, semiconductor manufacturing leadership is as critical 
to America's national defense and economic security today as it was in 
1987 when Sematech was formed. Sematech has proven to be a model for 
government-industry cooperation. Unlike so many other programs, 
Sematech has produced all that it has promised it would and then took 
the unprecedented step of deciding to decline all future direct Federal 
funding.
  It is indeed ironic that as this program come to an end, our 
competitors in Japan recently announced they are establishing a 
consortium modeled after Sematech. They have publicly admitted that the 
success of Sematech has resulted in America reclaiming world market 
share leadership in both chips and the equipment used to manufacture 
them and the Japanese now feel the need for their own Sematech.
  We must never surrender our leadership or our resolve to be the 
technology leader of the world. In this the final year of funding, I 
believe we have an obligation to provide adequate funding to ensure 
Sematech is able to complete its mission and finish research

[[Page S2286]]

project already underway that the industry and the Department of 
Defense are counting on.


                Criminal Justice Identification Systems

  Mr. DeWINE. Mr. President, my amendment provides $11.8 million for 
local governments for the development of criminal justice 
identification systems and their linking to FBI databases. 
Specifically, this amendment allows the FBI to grant funds to local 
communities, in consultation with the States, to upgrade their criminal 
identification systems. Through this funding, law enforcement agencies 
could develop their criminal histories, and DNA, fingerprint, and 
ballistics identification systems, and hook them up to the FBI national 
databases. It would also allow local law enforcement to contribute 
identification materials to the database in Washington. This proposal 
is strongly supported by the FBI and State and local law enforcement 
agencies and governments.
  While the FBI's fingerprint and criminal histories systems are not 
yet complete, State and local governments need these funds now to take 
necessary steps to prepare their criminal records for connection to the 
national database.
  This language was also passed by the Senate in June, 1995, as part of 
S. 735, the Senate's antiterrorism measure, and in October, 1995, as 
part of H.R. 2076, the Commerce, Justice, State and the Judiciary 
Appropriations.
  I want to thank Senator McConnell for his tremendous efforts in 
securing passage of this amendment. I also want to express my 
appreciation to Senator Hatfield and Senator Gregg for accepting this 
amendment.


                   Regional Educational Laboratories

  Mr. HATFIELD. I am pleased to see that the Senate provided an 
increase of funding for education research in fiscal year 1996. There 
is not a more central and basic role for the Federal Government than to 
be funding research and development activities. Within that increase, 
have you provided for the regional educational laboratories?
  Mr. SPECTER. We have provided $51 million for the regional 
educational laboratories in the education research item. We have 10 
laboratories across the Nation. This funding will provide them each 
with a $1 million increase.
  Mr. HATFIELD. Have you designated the purpose of these funds for the 
laboratories?
  Mr. SPECTER. The laboratories, by law, are to have their research 
priorities and program of work determined totally by their regional 
educational governing boards. These boards are responsible to meet the 
education needs of their region. We are not giving a specific charge. 
We expect the laboratory boards to determine what is needed.
  Mr. HATFIELD. Does this mean that the Department of Education can 
direct these funds in any way?
  Mr. SPECTER. Senator Hatfield, the answer is that these funds are 
intended for regional priorities only and only when the priority is 
determined by a laboratory's board, and is a priority within the 
general problem areas established in the law. None of these funds are 
to be used for any other purpose. This is what Congress intended when 
we reauthorized these laboratories. A key role of the Office of 
Educational Research and Improvement is to guarantee that this 
expectation is met, not only with the additional funds we provide this 
year, but for all the funds for the regional educational laboratories.


                         National Test Facility

  Mr. CAMPBELL. Would the Senator from Alaska yield a few moments at 
this time to enter into a brief colloquy?
  Mr. STEVENS. I would be happy to yield to the distinguished Senator 
from Colorado.
  Mr. CAMPBELL. I thank the Senator. As the Senator may recall, the 
Senate report on the National Defense Authorization Act for Fiscal Year 
1996 contained language concerning the $30,000,000 mandated cut from 
the Ballistic Missile Defense Organization [BMDO] program management 
and support program element. It is also my understanding that based on 
the additional management requirement, the Defense Appropriations 
Subcommittee directed that none of the program management and support 
account reduction be applied to the programs, activities, or functions 
of the Army Space and Strategic Defense Command. As a result of this 
report language, the National Test Facility [NTF] will take 
approximately a $4 million reduction in funding. As a result, there 
will be insufficient funds to do the much needed upgrade of the 
communications of the national test bed network. Also, a computer 
essential to the NTF's mission may not be able to support its 
operational requirements. I am advised that this facility is essential 
to the BMDO's mission, and therefore, cannot withstand any further 
reduction in funding.
  I would like to ask the Honorable Chairman, Senator Stevens, if he 
would work to include the National Test Facility as another program not 
be affected by the BMDO program management and support account 
reduction?
  Mr. STEVENS. The Senator from Colorado raises important issues 
regarding the NTF and I can assure him I will work in the conference 
committee to address this issue. I also take this opportunity to thank 
the Senator from Colorado for his diligent efforts as the newest member 
of the Appropriations Committee.


                        international education

  Mr. SPECTER. Senator Pell, we are pleased to be able to provide 
support in the amount of $5 million in fiscal year 1996 for the 
International Education Program in title VI of the Goals 2000: Educate 
America Act. Since this sum is one-half of the originally authorized 
amount for this program we would appreciate any guidance that you, as 
the author of this legislation and the ranking minority member of both 
the Senate Foreign Relations Committee and the Education Subcommittee, 
might be able to provide on the use of these funds.
  Mr. PELL. Thank you. First, I want to express to you my deep 
appreciation for the efforts you have made on behalf of this program, 
which provides critically important help in both civics and economic 
education to the emerging democracies in Eastern Europe and the former 
Soviet Union. Also I want to personally thank your staff member, 
Bettilou Taylor, for the amount of time and work she put forth in this 
area.
  I very much appreciate the opportunity to provide guidance on how the 
funds for this program should be used. In a colloquy with then-Chairman 
Harkin in 1994, we agreed that the Department, given the limited funds, 
should award one grant in each area--one in civic education and one in 
economics education. I am pleased that the Department of Education 
complied with this request, and I believe it is a practice that should 
be continued.
  Further, given the delay in reaching an agreement on a fiscal 1996 
appropriations bill, I believe it advisable that the Department award 
continuation grants to the two organizations that received awards last 
year. These organizations, the National Council on Economic Education 
in New York and the Center for Civic Education in California, have had 
their grants for less than a year and should be given ample opportunity 
to implement fully the programs they have initiated over the past 
several months.
  Mr. SPECTER. I thank the Senator for his kind words. Also, I believe 
he has offered good, solid advice, and would concur with him that the 
Department should award continuation grants for the two organizations 
in question.


                      funding for library literacy

  Mr. SIMON. I am concerned that funds for library literacy have been 
eliminated in the committee report. This is a particularly important 
program that supports literacy projects in over 250 libraries across 
the country. I did note and do appreciate, however, that the committee 
increased funding for library services.
  Mr. SPECTER. My colleague is correct. Libraries are important in 
promoting literacy and I want to make it clear that the committee 
intends that library literacy projects continue to receive support 
through the additional funds allocated for library services. I will 
work in Conference Committee with the House to ensure that the 
conference report reflects this intent.
  Mr. SIMON. I thank my colleague. Though I obviously would feel more 
comfortable if funds were appropriated

[[Page S2287]]

specifically for this purpose, I appreciate my colleague's efforts to 
accommodate my concerns regarding this important program.


                       medicare-medicaid databank

  Mr. HOLLINGS. Mr. President, I rise for the purpose of engaging in a 
short colloquy with the distinguished Senator from Pennsylvania and the 
Senator from Arizona regarding the Medicare-Medicaid databank.
  Mr. SPECTER. I am familiar with the issue and would be glad to 
discuss it with my friends from South Carolina and Arizona.
  Mr. HOLLINGS. Well, I do not believe that this is controversial 
because it has been addressed in the past by the committee and by the 
Senate. Last year, the committee report included report language 
prohibiting the use of funds for the Medicare-Medicaid databank. This 
year, the House fiscal year 1996 Labor, Health and Human Services, 
Education, and Related Agencies Appropriations report again makes it 
clear that the House committee does not intend for funds to be used for 
this function, which could generate both needless paperwork and fines 
for businesses across America. I just want to make the record clear 
that the Senate continues to agree.
  Mr. McCAIN. I share the concern of my friend from South Carolina and 
have supported this prohibition from the start. Implementing the 
databank clearly would burden business with costly reporting 
requirements. In fact, I have introduced a bill to eliminate this 
burdensome mandate and hope it could be passed by the end of the year.
  Mr. SPECTER. I appreciate my colleagues raising this issue. I know 
that language similar to the fiscal year 1996 House report language was 
included in the Senate report last year, and certainly, the Senate 
committee continues to agree.
  Mr. McCAIN. I thank my friend from Pennsylvania for his 
clarification.
  Mr. HOLLINGS. I thank my colleagues and yield the floor


                           foreign operations

  Mr. LEAHY. Mr. President, the chairman of the Foreign Operations 
Subcommittee, Senator McConnell, and I have agreed to an amendment he 
is offering to rescind $25 million in funds appropriated in Public Law 
104-107, the fiscal year 1996 Foreign Operations bill, for the Export-
Import Bank. Those funds would then be eligible for transfer to the 
Commerce, Justice, State Subcommittee for programs under the 
jurisdiction of the Attorney General.
  Senator McConnell and I have also agreed that if the $50 million 
emergency supplemental appropriation for anti-terrorism assistance for 
Israel that is contained in this omnibus appropriations bill is offset 
with Defense Department funds or military construction funds, the $25 
million transfer to the Commerce, Justice, State Subcommittee may 
occur. However, if any of the Israel supplemental is offset with 
Foreign Operations funds, the transfer will not occur. This ensures 
that if the Israel supplemental is paid for with Foreign Operations 
funds, the Export-Import Bank money would remain in the Foreign 
Operations budget and would reduce the impact of that offset on Public 
Law 104-107.
  Mr. McCONNELL. Mr. President, the Senator from Vermont, Senator 
Leahy, has accurately stated our understanding.
  Mr. JOHNSTON. Mr. President, I would like to commend the 
distinguished chairman, Senator Specter, and the distinguished ranking 
member of the Labor, Health and Human Services Subcommittee on 
Appropriations, Senator Harkin, for their guidance and cooperative 
efforts in bringing this continuing resolution to the floor. There were 
extreme differences of opinion on a variety of subjects within this 
legislation, and both the chairman and ranking member deserve a great 
deal of credit for their efforts.
  Mr. President, I rise today to bring attention to a program that is 
providing an indispensable service to Americans living underserved 
rural areas. The committee has provided funding above request levels 
for the Office of Rural Health Policy, and I applaud this decision. 
Rural telemedicine is a novel initiative in that it provides people in 
rural communities across the country access to physicians and instant 
diagnosis. This is a particularly essential program given the declining 
numbers of doctors who practice general medicine in our Nation's small 
communities. Telemedicine research has been ongoing, with specific 
efforts to determine the best and most efficient methods of delivering 
these services to America's citizens.
  One of the excellent telemedicine research projects which would have 
been funded in 1995 was from Louisiana State University Medical Center 
in New Orleans. LSU went through the competitive process and was highly 
regarded on the merits, and I'm proud of their accomplishments, and the 
work that they are doing in southeast Louisiana.
  Mr. President, a number of telemedicine projects were approved last 
year, but did not receive funding as a result of rescissions. The LSU 
Telemedicine projects was just such a program. In order that LSU 
Medical Center might continue its outstanding work, I would ask the 
distinguished chairman and ranking member, and hope that they agree, 
that consideration would be given to those programs that, after the 
required peer review, should have received funding from the fiscal year 
1995 appropriation, but were not based simply on timing.
  Mr. SPECTER. I thank my distinguished colleague from Louisiana for 
his comments, and for bringing this component of telemedicine research 
to the subcommittee's attention. The subcommittee adjusted the funding 
levels for the Office of Rural Health Policy because it felt that 
programs, such as telemedicine, offer promise for improving services to 
rural communities in the future. There is a need to evaluate how 
telemedicine projects currently underway or under consideration fit 
into the overall scheme of health care delivery in the areas being 
served. Therefore, I think it would be consistent for the Health 
Resources and Services Administration to consider previously approved 
projects when it obligates Rural Health funding.
  Mr. HARKIN. Mr. Chairman, I concur with your remarks. It would be 
appropriate to continue these efforts to secure effective telemedicine 
services for rural communities and to use existing, approved projects 
where possible.


                    hcfa research and demonstrations

  Mr. SIMON. Mr. Chairman, I want to bring to the attention of the 
Senate and the committee language included in the Senate Appropriations 
Committee Report accompanying H.R. 2127, the 1996 Labor, Health and 
Human Service, Education Appropriations bill. It is my understanding 
that unless specifically contradicted, all items in that committee 
report are incorporated, by reference, in the committee report 
accompanying the continuing resolution now being considered by the 
Senate.
  Mr. SPECTER. That is correct.
  Mr. SIMON. Accordingly, language included in the Senate committee 
report under the Health Care Financing Administration Research, 
Demonstrations, and Evaluations account that encourages HCFA to give 
``full and fair consideration'' to a proposal from Northwestern 
Memorial for a ``3-year project to develop a comprehensive health care 
information management system'' is incorporated by reference in the 
report accompanying the continuing resolution now under consideration.
  Mr. SPECTER. That is further correct. This is a project that warrants 
full and fair consideration by HCFA, which should adhere to the 
intentions of the Senate with regard to this important piece of report 
language.
  Mr. SIMON. At a time when the Congress is proposing--and HCFA will be 
responsible for administering--significant reductions in Medicare and 
Medicaid costs, this proposal is particularly timely. Specifically, 
with the advent of managed care, and the resulting shift of patient 
care from inpatient acute care to ambulatory and other primary care 
settings, an integrated health care delivery system is essential. At 
present, information management systems to measure cost outcomes--and 
achieve cost savings--beyond the acute care setting are not 
commercially available. The information management system recommended 
in this report language would serve as a prototype for other health 
care delivery systems, and offers the promise of cutting health care 
costs while maintaining quality health care.
  Mr. SPECTER. I share your interest in ensuring that HCFA has the 
information necessary to reduce the costs of

[[Page S2288]]

health-related entitlements while maintaining quality care. I also 
agree that the information management system referenced in the 
committee report is precisely the kind of project that HCFA should be 
exploring to achieve these objectives.
  Mr. SIMON. Thank you for your interest in this important project.


                              flint creek

  Mr. McCAIN. Mr. President, I would like to clarify for purposes of 
the Record the amendment that we have just adopted.
  First, the amendment gives the Federal Energy Regulatory Commission 
[FERC] the discretion of whether to transfer the license for the Flint 
Creek project. Second, in determining whether to transfer the license 
the commission must determine whether the waiver of fees is warranted, 
necessary and in the public interest.
  In making these determinations FERC will ensure that the current 
licensee receives no payment or consideration for the license transfer, 
that no entity other than a political subdivision of the State of 
Montana would accept the license if made available, and that a fee 
waiver is necessary in order to transfer the license.
  Mr. President, the proponents of this amendment inform me that 
without a limited fee waiver, the Flint Creek project would be defunct, 
the dam removed and that, accordingly, the Federal Treasury would 
receive no fee revenues whatsoever, leaving both the people of the area 
and the Federal Treasury worse off.
  I trust that FERC will carefully examine the situation and exercise 
its discretion to ensure fairness to the parties in Montana, the 
Federal Treasury and all similarly situated projects. I ask my friend 
from Montana, is that a correct reading of the amendment.
  Mr. BURNS. My friend has described the amendment correctly.


                               cdbg funds

  Mr. BOND. Mr. President, I support the amendment offered by the 
Senators from South Dakota to earmark $13 million from the CDBG program 
to enable the city of Watertown to replace a failed sewage treatment 
plant without burdening that city with unfair additional debt and 
devastating economic consequences. This grant will be matched by the 
city.
  The city of Watertown participated in an innovative wastewater 
treatment project which failed. When that city undertook this 
demonstration, it was with the encouragement of EPA, and with the 
understanding that if the plant were to fail, that Federal grant funds 
would be provided to enable the city to meet its secondary treatment 
responsibilities.
  Unfortunately, the plant has failed, and the authorization to make 
such grants by EPA also has expired, since Congress has directed that 
henceforth such assistance only be available in the form of formula 
allocated capitalization of state revolving loan funds. It has been 
argued that we should over-ride this statutory direction and make 
specific grants to certain communities. Throughout the consideration of 
this bill I have opposed such earmarks from the EPA state revolving 
loan account, and I remain opposed to the diversion of EPA funding for 
such site specific concerns.
  Mr. President, despite my concern over such use of EPA revolving loan 
funds, I reluctantly have accepted the argument of the Senators from 
South Dakota that this city would be unfairly burdened with a massive 
additional cost of financing a replacement wastewater treatment plant, 
a cost that they were assured previously they would not have to pay. 
More importantly, this additional cost, necessitated by the failure of 
a technology recommended by the Federal Government, will have 
devastating economic consequences for this city.
  As such, amelioration of these consequences is one which the HUD CDBG 
program was intended to address: that of creating or preserving 
employment in a community. While I also am generally opposed to such 
earmarks in the CDBG program, this is a program which has such purposes 
under its current authorization, and as such, is a more appropriate 
means of addressing the legitimate concerns of this community.


the committee for minority veterans and the committee on women veterans

  Mr. AKAKA. Mr. President, would the Senator from Missouri, the 
chairman of the VA, HUD, and Independent Agencies Subcommittee, yield 
for a question?
  Mr. BOND. I would be happy to yield for a question from the junior 
Senator from Hawaii.
  Mr. AKAKA. Is it the intention of the committee to include the 
Committee for Minority Veterans and the Committee on Women Veterans 
under the restrictions placed on the travel budget of the Secretary of 
Veterans Affairs?
  Mr. BOND. No, it was not.
  Mr. AKAKA. Will the Committee for Minority Veterans and the Committee 
on Women Veterans be able to meet their responsibilities, including 
travel obligations, under the restrictions placed on the Secretary's 
travel?
  Mr. BOND. Yes, they will. I believe that the ranking member of the 
Subcommittee, the Senator from Maryland, also supports this view.
  Ms. MIKULSKI. That is correct. As a strong proponent of the Committee 
on Women Veterans and the Committee for Minority Veterans, I fully 
support their efforts and will make every effort to see that their 
activities are not adversely affected.
  Mr. AKAKA. I am most grateful for the Senator from Maryland's past 
assistance in providing support and funding for the two centers.
  As created by Congress, the centers were established to address the 
special needs of women and minority veterans overlooked under the 
Department's previous structure. Both centers and their respective 
Advisory Committees have made great strides in identifying and 
assisting minority and women veterans.
  The Committee for Minority Veterans is required to meet at least 
twice a year and submit a annual report no later than July 1. The 
Committee on Women Veterans is scheduled to meet four times during a 
fiscal year and is expected to submit its next annual report in January 
1997. The projected costs for the two committee to hold meetings, 
conduct public hearings, visit VA field facilities, and outreach to 
minority and women veterans are estimated to be over $120,000 for the 
remainder of the fiscal year. I am pleased that the provision in this 
bill will not adversely affect the activities of the Center for 
Minority Veterans and the Center on Women Veterans.
  Mr. President, I thank the Senator from Missouri and the Senator from 
Maryland for their assistance on this matter.


                           devils lake basin

  Mr. CONRAD. I notice that the chairman and ranking member of the 
Appropriations Subcommittee on VA-HUD and Independent Agencies are on 
the floor and Senator Dorgan and I would like to engage them in a short 
colloquy.
  As you know, two amendments to the omnibus appropriations bill were 
adopted on the floor on Monday providing much needed hazard mitigation 
and disaster relief for the people of the Devils Lake Basin in North 
Dakota. As Senator Dorgan and I stated on the floor prior to adoption 
of those amendments, Devils Lake reached a 120-year high water level 
last year, and the resulting flooding caused more than $35 million in 
damages. Based on the most recent National Weather Service forecast on 
March 1, we anticipate record high lake levels again this year. The 
amendments which were adopted will go a long way toward preventing 
another disastrous flood from occurring. We would like to know if 
additional assistance might be available to North Dakota through the 
Community and Development Block Grant Program.
  Mr. DORGAN. We note that an additional $100 million dollars is 
provided for the Community Development Block Grant Program in the 
disaster supplemental portion, title II, of the pending bill. The State 
of North Dakota, working with the affected counties of Benson and 
Ramsey and the Devils Lake Sioux Tribe, have identified many homes that 
will require relocation or acquisition to prevent them from being 
damaged by floods later this year. A substantial portion of the 
anticipated $50 million in flood damage could be prevented if homes in 
the flood plain are acquired or moved prior to the flood. Senator 
Conrad and I would like to inquire if CDBG block grant funds have been 
used for acquisition and relocation in the past.

[[Page S2289]]

  Mr. BOND. It is my understanding that CDBG funds have been used for 
acquisition and relocation in the past and would be an allowable use of 
these funds under HUD guidelines for the CDBG program.
  Ms. MIKULSKI. I concur with the chairman of the subcommittee on the 
use of CDBG funds for acquisition and relocation assistance. If Federal 
dollars can be saved by taking action before flooding occurs, I think 
we should do so.
  Mr. CONRAD. I thank the chairman and ranking member for their 
comments. We have one additional question for the chairman and ranking 
member.
  Mr. DORGAN. North Dakota has received a Presidentially declared 
disaster declaration for each of the past 3 years. H.R. 3019 provides 
disaster assistance for the Pacific Northwest and other recent natural 
disasters. Could the chairman provide me with his view as to whether 
the Devils Lake Basin would have eligibility for additional CDBG 
assistance under the ``other recent disasters'' provision in title II 
of H.R. 3019?
  Mr. BOND. I believe the State of North Dakota would be eligible to 
receive CDBG funding under title II of this bill, provided the 
administration concurs with the congressional designation of the 
appropriation as an emergency requirement pursuant to the Balanced 
Budget and Emergency Deficit Control Act of 1985, and submission of an 
official budget request to this end.
  Ms. MIKULSKI. I believe the chairman's interpretation of the 
provisions in the bill is correct.
  Mr. CONRAD. I thank the chairman and ranking member of the 
subcommittee for clarifying the intent of Congress regarding the 
utilization of CDBG funds for flood mitigation efforts. I also want to 
thank the chairman and ranking member of the full committee for their 
help throughout this process.
  Mr. DORGAN. I want to concur with the remarks of Senator Conrad. They 
and their staffs have provided us with invaluable help in our efforts 
to seek assistance to prevent flooding in the Devils Lake Basin in 
North Dakota.


                  b-52 supplemental funding amendment

  Mr. CONRAD. Mr. President, my distinguished colleague from North 
Dakota and I offered an amendment reprogramming $44.9 million from Air 
Force research and development, R&D, accounts to operations and 
maintenance, O&M, earmarked for retention of our entire fleet of B-52H 
aircraft in active status or a fully maintained attrition reserve.
  Retention of these aircraft makes good sense. The B-52 is currently 
our only dual-capable aircraft, capable of responding anywhere in the 
world with advanced conventional precision guided munitions or in 
support of our nuclear deterrent. The B-52 is our most proven bomber, 
and as a result of consistent upgrades which are continuing, the B-52 
is a thoroughly modern aircraft. Gen. Michael Low, former Commander of 
the Air Combat Command, has stated that the B-52's airframe is good 
until 2035. The B-52 is also cost effective, making it a good buy as we 
work to balance the budget.
  As my colleagues may be aware, the Air Force has announced its 
intention to send up to 28 of these aircraft to the boneyard at Davis-
Monthan. This is clearly unwise. In the context of great uncertainty 
over Russian ratification of START II, loss of the capability to 
reconstitute the current force structure in a relatively short period 
of time would likely decrease Russia's incentive for ratification. I 
know that my colleagues shared this concern when they voted to pass the 
fiscal year 1996 Defense Authorization Act, which included a provision 
prohibiting the retirement of any B-52's or any strategic systems, with 
fiscal year 1996 funds.
  Recent events in the Taiwan Strait and frequent threatening Iraqi 
military maneuvers near Kuwait since the gulf war highlight the wisdom 
of this provision. In an era when we face the possibility of sudden 
massive aggression that leaves us little time to deploy reinforcements, 
the B-52's global reach is a valuable capability we ought not 
sacrifice.
  As many of my distinguished colleagues are aware, the Botton-Up 
Review [BUR] found that 100 deployable conventional bombers are needed 
to win one major regional conflict [MRC] before swinging to another 
MRC. Because of the slow pace of conventional upgrades to the B-1 fleet 
and the continuing production of the B-52, however, we could only 
deploy 92 global range bombers if we had to go to war today. Sending 
dual-capable B-52's to the boneyard when we are unable to meet our 
requirements for even one MRC is unwise, if not dangerous.
  Retention of these proven, cost effective, and highly capable bombers 
is clearly in our interest, and I believe that this amendment is the 
right way to do it. In light of the great budgetary pressure faced by 
the Air Force in this time of fiscal austerity, I am pleased that a 
portion of the Defense Department's unexpected inflation dividend was 
available for reprogramming. No other valuable Air Force program will 
be negatively affected by this amendment.
  I urge my colleagues to support this amendment, and call on the 
Department of Defense to respect Congress's prerogative to determine 
the structure of our Armed Forces. In particular, I urge the Defense 
Department to postpone inactivation of any part of our B-52 force until 
Congress has completed all action on this year's defense budget, 
including the reprogramming package currently under development by the 
administration and supplemental appropriations legislation for fiscal 
year 1996.
  I thank my distinguished colleagues for their careful consideration 
of this amendment, and yield the floor.
  Mr. DORGAN. Mr. President, I rise to explain the amendment that I 
have offered with Senator Conrad to ensure full funding for the B-52 
bomber fleet. Let me outline what my amendment would do and then let my 
colleagues know why the Senate should pass it.
  We have 94 B-52 bombers in active service in the Air Force today. Our 
experience in the Vietnam war and the Persian Gulf war shows that the 
B-52 has long been our workhorse bomber. But despite what the B-52 
continues to do for our national defense, the Air Force is considering 
drawing down the B-52 fleet.
  I am trying to prevent this from happening, and to keep B-52's up and 
flying. My amendment would provide the Air Force with the funding to 
operate and maintain 94 B-52 aircraft either in active status or in 
attrition reserve. A plane in active status, of course, is part of a 
combat coded squadron. A plane in attrition reserve is not in a 
separate squadron but is cycled through active squadrons, and is 
maintained in flyable condition.
  In order to pay for full maintenance of the B-52 fleet, my amendment 
would transfer $44.9 million in Air Force research and development 
funds to Air Force operations and maintenance. The $44.9 million has 
already been appropriated in the defense appropriations bill. The money 
is available for transfer because the Defense Department's new 
estimates of inflation led the Department to conclude that it can 
accomplish its Air Force research and development with less money. In 
fact, the Defense Department proposed that this $44.9 million be 
rescinded as part of its supplemental appropriations and rescissions 
request.
  I have run my amendment by the Congressional Budget Office, and CBO 
tells me two things that should cause my colleagues to support my 
amendment. First, CBO believes that the $44.9 million funding transfer 
will enable the Air Force to carry out my amendment's purpose of 
maintaining 94 B-52's. So this amendment is fully funded. Second, CBO 
has scored this amendment as saving $4 million in fiscal year 1996 and 
as deficit neutral over the 5 years 1996 to 2000. CBO projects that 
this amendment would actually save money in this fiscal year and be 
deficit neutral over the next 5 years.
  Having described my amendment, let me briefly tell my colleagues why 
I think it is important that we retain our full, 94-plane B-52 fleet.


                            start ii treaty

  The most important reason to keep 94 B-52's flying is that Russia has 
not yet ratified the START II Treaty. START II is the arms control 
treaty that requires both us and the Russians to cut our nuclear 
stockpiles. It makes no sense to retire strategic weapons systems when 
START II has not yet gone into effect. Disarmament should

[[Page S2290]]

not be unilateral. Members of the Russian Duma will doubtless ask 
themselves why they should ratify START II if the United States is 
cutting its strategic bomber force anyway.


                          congressional intent

  Second, Congress has explicitly recognized the force of these START 
II considerations. We wrote a provision into law, section 1404 of the 
National Defense Authorization Act for Fiscal Year 1996, forbidding the 
retirement of any strategic weapon system this year. We did that 
because we knew that we should not cut our nuclear arsenal until Russia 
subjects itself to the limits in START II. That is why section 1404 
explicitly prohibits retiring B-52 bombers or even preparing to retire 
them. My amendment simply backs up section 1404 with the funding the 
Air Force needs to maintain the full B-52 bomber fleet. I seek to 
enable the Air Force to carry out the intent of Congress.


                       capabilities of b-52 fleet

  Third, I would remind my colleagues that B-52 bombers are long-range 
force projectors. With maximum fuel load, the B-52 can fly 10,000 miles 
without in-air refueling, which is over 33 percent further than the B-1 
or B-2 bombers. With in-air refueling, the B-52 literally has a 
worldwide range. The B-52 has been modified to carry up to 12 air-
launched cruise missiles externally and 8 internally. Alternatively, it 
can carry up to 50,000 pounds of attack missiles and gravity bombs. A 
bomber of such range and payload is vital in order to project air power 
to areas where the United States lacks prepositioned equipment or bases 
capable of handling heavy bombers.
  To take an example, Mr. President, right now we face a crisis in 
Southeast Asia, in the Taiwan Strait. China is firing live ammunition 
and testing dummy missiles in a way that is calculated to disrupt 
Taiwan's economy and rattle Taiwan's electorate. We have one carrier 
task force in the area; we are moving a second carrier task force from 
the Persian Gulf to Southeast Asia in order to keep the peace. Well, 
the B-52 has already kept the peace in the Persian Gulf. And it can 
keep the peace in Southeast Asia in one hop if need be. It makes no 
sense to retire B-52's at a moment when our ability to project force 
into every corner of the world is key to the peace of Southeast Asia.


                          bomber study ongoing

  Last, my colleagues will recall that in February President Clinton 
ordered the Defense Department to study the future of our long-range 
bomber fleet. The Deep Attack Weapons Mix Study, which is headed by 
Under Secretary of Defense for Acquisition and Technology Paul Kaminski 
and Vice Chairman of the Joint Chiefs of Staff Gen. Joseph Ralston, 
will examine both the munitions and the bombers used to strike deep 
into enemy territory. That study includes a close look at the strategic 
bomber force structure. It seems to me that any retirement of B-52 
bombers would prejudge the results of the Deep Attack Weapons Mix 
Study. I think my colleagues will agree that we should ensure that the 
Air Force can await the results of the study before retiring any B-52 
bombers.
  In conclusion, Mr. President, I am asking the Senate to approve an 
amendment that is paid for, that fulfills congressional intent, that 
maintains America's strategic forces, and that keeps a capable bomber 
in the air. I hope my colleagues will support this amendment.
  Thank you, Mr. President. I yield the floor.


                               americorps

  Mr. LEAHY. Mr. President, I support the mission of AmeriCorps. I 
believe that engaging Americans of all ages to help communities solve 
their own problems is a worthy goal.
  One of the greatest threats facing our cities and towns today is the 
loss of a sense of community responsibility. AmeriCorps invites 
Americans to put something back into their communities--to reestablish 
the local ties that have been so important to this country.
  I am very concerned about the provision in this omnibus 
appropriations bill which terminates AmeriCorps grants through Federal 
agencies. Right now, about half of AmeriCorps participants in my home 
State run through the USDA AmeriCorps Program. This includes the 
Vermont Anti-Hunger Corps and a rural development team. These projects 
have involved nonprofit groups, and a unique partnership of Federal, 
State, and local organizations. All of which have contributed to their 
success.
  I want to clarify with the Chairman that this language would not 
preclude these local programs currently funded through Federal agencies 
to continue through national direct grants or through State 
commissions.
  Mr. BOND. Yes, the Senator is correct. If local programs currently 
being funded through Federal agencies are doing a good job, then I 
would encourage them to either work with national groups to apply for 
funding or work with the commission in the State in which they reside. 
These local programs have the experience and expertise to compete very 
well for AmeriCorps grants. I expect the Corporation for National and 
Community Service and the State commissions to take this experience 
into consideration when reviewing new grantees. The bottom line is that 
we do not want Federal agencies capitalizing on funds that should be 
going directly to nonprofit organizations.
  Mr. LEAHY. I thank the Chairman Senator Bond. I ask Senator Mikulski 
if this is also her understanding?
  Ms. MIKULSKI. I share the concern of the Senator, about the 
termination of the grants to Federal agencies. Unfortunately, we lost 
the public relations war in defining how these Federal agency grants 
really work. These programs are not bloated bureaucracies, but a way 
for small local programs to benefit from the technical expertise of 
Federal agencies in designing programs to meet their own local needs. I 
would urge any local program currently being funded through a Federal 
agency to apply through the national direct grants or through their own 
State commissions.
  Mr. LEAHY. I thank Chairman Bond and Senator Mikulski. I plan to work 
closely with these Vermont programs so that they can continue to 
providing services through AmeriCorps. And I appreciate all of the work 
the Senators have done to come to a bipartisan agreement on funding for 
AmeriCorps. I look forward to continue working with them on this 
important issue.


                          veterans health care

  Mr. McCAIN. Mr. President, we need to take immediate steps to 
implement a plan to better allocate health care funding among the 
Department's health care facilities so that veterans, no matter where 
they live or what circumstances they face, have equal access to quality 
health care.
  The amendment that I propose here today with my distinguished 
colleague, Senator Bob Graham of Florida, will, I hope, finally direct 
the Department of Veterans Affairs to do the right thing. That is, to 
eliminate funding disparities among VA health care facilities across 
the country.
  Mr. President, inequity in veterans' access to health care is an 
issue that I originally brought to Secretary Jesse Brown's attention in 
March 1994. The Department of Veterans Affairs is currently using an 
archaic and unresponsive formula to allocate health care resources. The 
system must be updated to account for population shifts.
  The veterans population in three States, including Arizona, is 
growing, at the same time that it is declining in other parts of the 
country. Unfortunately, health care allocations have not kept up with 
the changes. The impact of disparate funding has been very obvious to 
me during my visits to many VA medical centers throughout the country, 
and particularly in Arizona, and was confirmed by a formal survey of 
the Carl T. Hayden VA Medical Center in Phoenix, which was conducted by 
the Veterans of Foreign Wars [VFW] in April 1994.
  The problem has been further verified by the General Accounting 
Office [GAO] in a report entitled ``Veterans Health Care: Facilities' 
Resource Allocations Could Be More Equitable.'' The GAO found that the 
Department of Veterans Affairs continues to allocate funding based on 
past budgets rather than current needs, and has failed to implement the 
Resource Planning and Management system [RPM] developed 2 years ago to 
help remedy funding inequity.

[[Page S2291]]

  Mr. President, the GAO cites VA data that the workload of some 
facilities increased by as much as 15 percent between 1993 and 1995, 
while the workload of others declined by as much as 8 percent. However, 
in the two budget cycles studied, the VA made only minimal changes in 
funding allocations. The maximum loss to a facility was 1 percent of 
its past budget and the average gain was also about 1 percent.
  This inadequate response to demographic change over the past decade 
is very disturbing, and, I believe, wrong. To illustrate the problem, I 
would point out that the Carl T. Hayden VA Medical Center experienced 
the third highest workload growth based on 17 hospitals of similar size 
and mission, yet was only funded at less than half the RPM process.
  Mr. President, the GAO informs me that rather than implementing the 
RPM process to remedy funding inequities in access to veterans health 
care, the VA has resorted to rationing health care or eliminating 
health care to certain veterans in areas of high demand.
  The GAO says:

       Because of differences in facility rationing practices, 
     veterans' access to care system wide is uneven. We found that 
     higher income veterans received care at many facilities, 
     while lower income veterans were turned away at other 
     facilities. Differences in who was served occurred even 
     within the same facility because of rationing.

The GAO also indicates that there is confusion among the Department's 
staff regarding the reasons for funding variations among the VA 
facilities and the purpose of the RPM system.
  Mr. President, this problem must be addressed now. This amendment 
compels the VA to take expeditious action to remedy this serious 
problem and adequately address the changes in demand at VA facilities.
  To conclude, I want to reiterate that I find it simply unconscionable 
that the VA could place the Carl T. Hayden VA Medical Center at the 
bottom of the funding ladder, when the three VA medical facilities in 
the State of Arizona must care for a growing number of veterans, and 
are inundated every year by winter visitors, which places an additional 
burden on the facilities.
  I ask unanimous consent that the VFW survey and the GAO summary 
report be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       Veterans of Foreign Wars of


                                            the United States,

                                    Washington, DC, April 7, 1994.
     John T. Farrar, M.D.,
     Acting Under Secretary for Health (10), Veterans Health 
         Administration, Department of Veterans Affairs, 
         Washington, DC.
       Dear Dr. Farrar: A member of my staff, Robert F. O'Toole, 
     Senior Field Representative, conducted a survey of the 
     Phoenix, Arizona, Department of Veterans Affairs Medical 
     Center, on March 14-15, 1994. During his time at the medical 
     center, he was able to talk with many patients, family 
     members and staff. This enabled him to gather information 
     concerning the quality of care being provided and the most 
     pressing problems facing the facility.
       While those receiving treatment in the clinics and wards 
     felt that the quality was good, they almost all commented on 
     the long waits in the clinics and the understaffing 
     throughout the medical center. In discussing their problem 
     with various staff members, it was noted that nurses were 
     under extreme stress. More than one was observed by Mr. 
     O'Toole in tears when completing their tour. The nursing 
     staff on evening shifts must rush continually through their 
     duties in an attempt to cover all their patients needs due to 
     the shortage in staffing in both support and technical 
     personnel.
       In attempting to determine the reason for this problem, it 
     became apparent that the station was grossly underfunded. 
     Which means that the staff must either take unwanted 
     shortcuts or continue to work beyond the point expected of 
     staffs at the other medical centers. While it is well 
     understood that the Veterans Health Administration is 
     underfunded throughout the system, it is clear from the 
     comparisons that this facility has not received a fair 
     distribution of the available resources resulting in the 
     deplorable situation now facing the health care team.
       Another problem in Phoenix that must be addressed is the 
     serious space deficiency, especially in the clinical areas. 
     The ambulatory care area was designed to handle 60,000 annual 
     visits. In fiscal year 1993, the station provided 218,000 
     annual visits, almost four times the design level. Many 
     physicians are required to conduct exams and provide 
     treatment from temporary cubicles set up inside the waiting 
     rooms. This bandaid approach has added to the already 
     overcrowding.
       The other problem that we feel should be pointed out is 
     that of the staffing ceiling assigned to the Carl T. Hayden 
     Veterans Medical Center. Currently, the medical center has a 
     FTE of 1530 which is over the target staffing level. Based on 
     available reports, the medical center would need an 
     additional 61 registered nurses just to reach the average 
     Resource Program Management (RPM) within their group. This 
     facility operates with the lowest employee level in their 
     group when comparing facility work loads, and 158th overall. 
     To reach the average productivity level of the Veterans 
     Health Administration medical centers, they would need an 
     additional 348 full-time employees. While it is realized that 
     this station will never be permitted to enjoy that level of 
     staffing, it is felt that they, at the least, should have 
     been given some consideration for their staffing problems 
     during the latest White House ordered employee reductions.
       To assist the medical center to meet their mandatory work 
     load, and the great influx of winter residents, it is 
     recommended that the $11.4 million which was reported to the 
     Arizona congressional delegation to have been given Phoenix 
     in addition to their FY 94 budget be provided. To enable the 
     station to handle the ever increasing ambulatory work load, 
     the Veterans Health Administration must approve the pending 
     request for leased clinic space in northwest Phoenix and, the 
     implementation plan for the use of the Williams Air Force 
     Base hospital as a satellite outpatient clinic, along with 
     the necessary funding to adequately operate the facility. In 
     addition, VHA should approve and fund, at a minimum, the 
     expansion of the medical centers clinical space onto the 
     Indian School land which was acquired for that purpose.
       Approval of the above recommendations would make it much 
     easier for this medical center to meet the needs of the ever 
     increasing veteran population in the Phoenix area. There is 
     no indication that the increasing population trends will 
     change prior to the year 2020. This hospital cannot be 
     allowed to continue the downhill slide. The veterans of 
     Arizona deserve a fair deal and the medical staff should be 
     given the opportunity to provide top quality health care in a 
     much less stressful setting.
       I would appreciate receiving your comments on the Phoenix 
     VA Medical Center at your earliest opportunity.
           Sincerely,
                                            Frederico Juarbe, Jr.,
                              Director, National Veterans Service.
                                 ______

         U.S. General Accounting Office, Health, Education, and 
           Human Services Division,
                                 Washington, DC, February 7, 1996.
     Hon. John McCain,
     U.S. Senate.
       Dear Senator McCain: The Department of Veterans Affairs 
     (VA) is faced with the challenge of equitably allocating more 
     than $16 billion in health care appropriations across a 
     nationwide network of hospitals, clinics, and nursing homes. 
     The challenge is made greater by the shifting demographics of 
     veterans. While nationally the veteran population is 
     declining, veterans have migrated from northeastern and 
     midwestern states to southeastern and southwestern states in 
     the past decade, offsetting veteran deaths in these states.
       VA has historically based its allocations to facilities 
     primarily on their past funding levels--providing incremental 
     increases to facilities' past budgets. In an effort to 
     improve its planning, allocation, and management processes, 
     VA made a considerable investment in implementing a new 
     system, called the Resource Planning and Management (RPM) 
     system, for use initially in fiscal year 1994. VA considers 
     RPM to be a management decision process to use to formulate 
     its budget, allocate most of its resources, and compare 
     facility performance.\1\ As the basis for resource 
     allocation, RPM classifies each patient into a clinical care 
     group, calculates average facility costs per patient, and 
     forecasts future workload. VA envisioned that the system 
     would improve VA's management of limited medical care 
     resources, better define future resource requirements, and 
     enable VA to explore opportunities to improve quality and 
     efficiency in its health care system. This vision included 
     improving the equity of its allocations by more closely 
     linking resources with facility workloads and alleviating 
     inconsistencies in veterans' access to care across the 
     system.
---------------------------------------------------------------------------
     \1\ Footnotes at end.
---------------------------------------------------------------------------
       Two recent events could have significant implications for 
     VA's resource allocation system. First, VA is restructuring 
     its organization to establish 22 veterans integrated service 
     networks (VISN) that will replace four regional offices and 
     assume the individual facilities' role as the basic budgetary 
     and planning unit for health care delivery. The new structure 
     will require some change in how resources are allocated.\2\ 
     Second, the Senate passed your proposed amendment to the 
     VA appropriations bill that would require VA to develop a 
     plan for the allocation of health care resources among its 
     health care facilities to ensure that veterans have the 
     same access to quality health care.\3\
       Because of your interest in this issue, you asked us to 
     review the equity of VA's resource allocation system, 
     particularly as it related to the allocations made to the 
     Carl T. Hayden Medical Center in Phoeniz, Arizona. More 
     specifically, you asked us to determine the following:
       To what extent does VA's allocation system provide for an 
     equitable distribution of resources among VA facilities?

[[Page S2292]]

       What are the causes of any inequity in the distribution of 
     resources, and what changes, if any, would help ensure that 
     the system more equitably distributes resources?
       In September 1995, we sent you our preliminary 
     observations.\4\ This report presents our final results.
       To accomplish our objectives, we first needed to apply a 
     definition of the term ``equity.'' We based our evaluation of 
     the equity of the system's distribution on VA's vision for 
     RPM.\5\ We considered the following two elements to be 
     characteristics of an equitable system:
       It provides comparable resources for comparable workload.
       It provides resources so that veterans within the same 
     priority categories have the same availability of care, to 
     the extent practical, throughout the VA health care system.
       We then reviewed VA documents and analyzed RPM system data 
     to determine the degree to which these two elements were 
     present. We discussed potential reasons for any inequities in 
     allocations with VA Headquarters, the Boston Development 
     Center, the RPM Committee, and facility officials in several 
     locations. To assess potential changes to address inequities, 
     we discussed such changes with VA officials and reviewed VA 
     documents on its original plans for RPM and minutes of 
     several RPM committees and work groups. Further details of 
     our scope and methodology are in appendix I. We performed our 
     review between December 1994 and October 1995 in accordance 
     with generally accepted government auditing standards.


                            results in brief

       The resource allocation system gives VA the ability to 
     identify potential inequities in resource distribution and to 
     forecast workload changes. Data generated by the system show 
     wide differences in operating costs among facilities that VA 
     considers comparable, even after factors such as locality 
     costs and patient mix differences are considered. VA's data 
     also show some facilities' overall patient workloads 
     increasing by as much as 15 percent between 1993 and 1995, 
     and others' workloads declining by as much as 8 percent. 
     However, in the two budget cycles in which RPM has been in 
     effect, VA used it to make only minimal changes in 
     facilities' funding levels--the maximum loss to any facility 
     was about 1 percent of its past budget and the average gain 
     was also about 1 percent. As such, VA's distribution of 
     resources has remained almost exclusively related to 
     incremental changes to the amount that each facility has 
     received in the past.
       To date, VA has chosen not to use the RPM system to help 
     ensure resources are allocated more equitably. VA officials 
     indicated that larger reallocations were not made during the 
     first 2 years of RPM to allow facilities time to understand 
     the process. VA officials also cited several other reasons 
     that significantly larger reallocations among facilities 
     could not be made. Although VA is taking some actions on 
     these issues, it has not fully addressed concerns that (1) 
     facilities cannot efficiently adjust to large budget changes, 
     (2) VA needs a better understanding of the reasons for the 
     variations, and (3) resources allocated to facilities outside 
     the RPM process should also be considered in judging the 
     equity of distributions. VA's reasons for not using RPM to 
     even out differences in veteran access to care were less 
     clear as there appeared to be confusion within VA about 
     whether the resource allocation system was intended to 
     achieve this goal.


                               footnotes

     \1\ VA in 1995 operated 172 hospitals, 375 ambulatory 
     clinics, 133 nursing homes, and 39 domiciliaries. For 
     resource allocation purposes, RPM combines certain health 
     care facilities that are managerially associated. In total 
     the RPM system develops allocations for 167 facilities.
     \2\ VA officials indicated that as part of this change, the 
     resource planning and management processes it used would 
     change and the system would be renamed. At the time of our 
     review, the system was known as RPM.
     \3\ On September 26, 1995, the Senate adopted amendment 
     number 2787 to the VA appropriations bill, which was in 
     conference at the time of our review. If it becomes law, the 
     provision would require the Secretary of VA to develop a plan 
     for the allocation of health care resources to ensure that 
     veterans having similar economic status, eligibility 
     priority, and/or similar medical conditions have similar 
     access to care regardless of the region in which the veterans 
     reside. The plan will include, among other things, procedures 
     to identify reasons for variations in operating costs among 
     similar facilities.
     \4\ See VA's Medical Resource Allocation System (GAO/HEHS-95-
     252R, Sept. 12, 1995).
     \5\ This vision was described in the Secretary's statements 
     to the Congress on RPM and in other VA publications.
  Mr. GRAHAM. Mr. President, I am here to offer my enthusiastic support 
as an original cosponsor of Senator McCain's amendment. Mr. President, 
as a nation, we have always been able to come together in times of 
crisis--especially in times of war.
  Despite our sometimes vehement disagreements, we as citizens of this 
great country have always been able to put partisanship aside when our 
young men and women are called to fight for democracy. For this--we can 
all be very proud. But the strength of a nation is displayed not just 
during war, but also in its aftermath. When the battles have long since 
raged, and the memories of welcome home parades have faded, it is at 
this time when our Nation can proudly display its commitment to those 
who fought the battles to keep this country free--our Nation's 
veterans. Mr. President, please take note when I say ``Our Nation's 
Veterans.'' They are not Florida's veterans or Arizona's veterans or 
New York's veterans. They are our veterans, and we as a nation have a 
collective responsibility to honor the commitment we made to them. When 
Members of this honorable body, including my esteemed colleague from 
Arizona, volunteered to do battle for America's freedom, no one asked 
what geographic region they came from. That question would have been so 
insignificant as to border on the absurd.
  Sadly, after our veterans returned home, and it is our turn to honor 
our commitments to them--where they live matters a great deal. Mr. 
President, just last month, the General Accounting Office published a 
rather startling report.
  Allow me to highlight a few of the report's findings.
  The Department of Veterans Affairs has had a system in place for 3 
years, known as RPM--Resource Planning and Management--designed to give 
veterans better access to health care regardless of where they live. 
While not perfect, the system as designed would go a long way toward 
equal treatment for veterans.
  However, despite the time, money, and effort put into designing such 
a system--VA has chosen not to use it. Between 1993 and 1995, some VA 
facilities' patient workloads have skyrocketed by as much as 15 
percent. At other facilities, patient workloads have decreased by 8 
percent.
  Despite this wide disparity in patient workload change, the VA has 
used its own resource allocation system to change any given facility's 
budget by the minuscule total of plus or minus 1 percent.
  The decision to pay homage to bricks and mortar rather than to our 
Nation's veterans has its price--and our Nation's veterans pay it. GAO 
reports that patient workload increases above historical workload are 
funded at 17 cents on the dollar--so if a veteran moves from New York 
to Florida--he will get 83 percent less care solely because he moved. 
That is not right.
  Surely, though, the VA must have compelling reasons for not acting on 
the RPM system. Surely, there must be terrible consequences should VA 
decide to forgo the status quo. Again, sadly--no. VA's justifications 
for inertia are weak--but here they are.
  First, VA claims that facility managers will have difficulty in 
adjusting to the large budgetary changes that would come about should 
resource allocation become more equitable. Mr. President, isn't 
adjusting to budget fluctuations what makes for good management, and in 
this case good government? In a private sector system, the chief 
executive of the hospital makes budgetary decisions based on 
forecasting patient workload on an annual basis. Why should we demand 
any less from the VA? Further, any difficulties VA facility managers 
have in adjusting to budgetary changes pale in comparison to the 
difficulties our veterans face as a result of VA's inertia. This seems 
to me, Mr. President, as a perfect example of the tail wagging the dog.
  Second, the second justification for failing to treat veterans 
equally is that VA doesn't understand why some facilities are able to 
make do with less funding while others require more resources for the 
same number of patients. VA reasons that until it understands why some 
facilities are more efficient than others, the agency won't implement a 
system that achieves fairness. Mr. President, it is a given that 
facilities which receive more than their share of resources will use 
all of these resources and facilities which receive less than their 
share will struggle and make do as best they can--rationing care along 
the way. But there are breaking points for even the most efficient 
facilities. And the consequences for these facilities fall squarely on 
our Nation's veterans and manifest themselves in concrete ways.
  For instance, a veteran who would normally have to wait 2 weeks to 
see an orthopedic surgeon may have to wait 6 months to see one should 
he choose to retire to Florida and Arizona. Or, a veteran who used to 
get free prescription glasses up North is laughed out of the VA 
facility down South. Because of this disparity, some

[[Page S2293]]

veterans are forced to move back home to get the care to which they are 
accustomed. Others simply give up in despair. Mr. President, we can 
help to rectify this inequity today. Right now. Our amendment would 
simply mandate that VA develop a plan for their fair allocation of 
resources to ensure that veterans having similar economic status, 
eligibility priority, and similar medical conditions have similar 
access to care regardless of where they live. And in the end, providing 
equal care to all our Nation's veterans is what the VA health care 
system is all about.
  We as politicians can quibble over such terms as construction 
projects, resource allocation methodology, and patient workload, but 
one thing is certain: We all have a stake in honoring our collective 
commitment to our veterans--and they deserve no less.
  Thank you, Mr. President.
  Mr. CHAFEE. Mr. President, the managers' amendment to the omnibus 
appropriations bill for fiscal year 1996 includes a provision--added on 
behalf of myself and Senator Kempthorne--to increase the appropriation 
for Endangered Species Act listing activities by the U.S. Fish and 
Wildlife Serivce from $750,001 to $2,000,001. The total amount 
available for the Fish and Wildlife Service's resource management 
activities is increased by $1,249,999 to accommodate this addition to 
the listing account. Senator Kempthrone and I proposed this amendment 
in order to address concerns raised during debate last week on the 
Endangered Species Act listing moratorium.
  Let us review the bidding.
  On March 13, the Senate approved a second-degree amendment offered by 
Senator Hutchison and Senator Kempthorne to Senator Reid's underlying 
amendment to strike the moratorium on final listings under the 
Endangered Species Act. The Hutchison second-degree amendment imposes a 
moratorium on final decisions to list species as threatened or 
endangered and on final decisions to designate critical habitat. 
However, the Hutchison amendment allows the Fish and Wildlife Service 
to use funds appropriated under the omnibus bill to issue emergency 
listings, to propose species for listing, and to review and monitor 
species on the candidate list.
  Mr. President, I oppose Senator Hutchison's second-degree amendment 
because I believe that a moratorium on adding species to the threatened 
and endangered list is wrong. Thus, I supported Senator Reid's 
amendment to strike the provisions that would impose a moratorium on 
adding new species to the threatened and endangered lists. Make no 
mistake about it--I continue to oppose the provision in this bill that 
would impose a moratorium on final decisions by the Secretary of the 
Interior or the Secretary of Commerce to list a species or to designate 
critical habitat under the Endangered Species Act.
  During the March 13 debate on the ESA moratorium, it was pointed out 
that the second-degree amendment offered by Senators Hutchison and 
Kempthorne increased the authority of the Fish and Wildlife Service, as 
compared to that included in the underlying bill, but provided only $1 
in new funding. This would have resulted in a difficult situation for 
the Fish and Wildlife Service as appropriations for listing activities 
would have been sorely inadequate to meet the needs and requirements of 
the law. In other words, it would have been nearly impossible for the 
Service to perform the tasks that are authorized under the Hutchison 
language--tasks such as decisions on emergency listings or responses to 
citizen petitions--without an increase in funding. The $1,249,999 that 
is added to the listing account under this amendment is intended to 
provide the U.S. Fish and Wildlife Service with funding necessary to 
perform emergency listings and other listing activities that are 
authorized under the Hutchison amendment.
  Mr. President, it was a pleasure to work with Senator Kempthorne and 
Senator Hutchison on this amendment. And, while I oppose the ESA 
listing moratorium, I believe that--working together to secure 
additional funding for listing activities--we have improved the 
prospects for orderly, effective research and conservation efforts by 
the Fish and Wildlife Service. It is my hope that we can continue to 
work together to enact responsible legislation to reauthorize the 
Endangered Species Act later this year.
  I would like to thank Senators Hatfield and Gorton and their 
Appropriations Committee staff for their assistance with this 
amendment. Also, I very much appreciate the willingness of Senator 
Hatfield and of Senator Byrd to include this provision in the managers' 
amendment.


                      hiv-positive servicemembers

  Mr. NUNN. Mr. President, the National Defense Authorization Act for 
fiscal year 1996, which was signed into law by the President on 
February 10, 1996, contains a provision which mandates the discharge of 
every member of the Armed Forces who is HIV positive within 6 months.
  At the present time, the services have in place procedures for 
medically separating HIV-positive personnel who are physically 
disabled. Those who are not disabled are placed in a nondeployable 
status but continue to perform military duties.
  This is similar to the status of others whose medical condition--such 
as cancer, heart disease, asthma, and diabetes--restrict deployability 
but not the capability to provide valuable military service.
  The new procedure would require the Armed Forces to discharge, not 
later than August 31, 1996, those who are physically capable of 
performing their military duties and who are, today, providing valuable 
service to the Nation.
  The new mandatory discharge policy rejects the judgment of the Armed 
Forces that HIV-positive servicemembers should be treated no 
differently from others whose medical condition renders them 
nondeployable.
  That judgment was made by the Joint Chiefs of Staff during the Reagan 
administration, and was recently reemphasized by Secretary of Defense, 
Bill Perry, and JCS Chairman, Gen. John Shalikashvili.
  The new policy represents a sharp break with the traditional military 
practice of considering medical discharge on a case-by-case basis. In 
my judgment, the new policy is unnecessary, wasteful, unfair, and 
unwise.
  The new policy is unnecessary because HIV-positive personnel 
represent a tiny fraction of our Armed Forces. Out of the 1.4 million 
members of the Armed Forces on active duty, only 1,150 are HIV 
positive. That is less than one-tenth of 1 percent.
  Moreover, these HIV-positive servicemembers constitute only one-fifth 
percent of the 5,000 personnel in the military who are permanently non-
deployable for medical reasons.
  If we can usefully accommodate some 4,000 individuals who are non-
deployable for reasons other than HIV, there is no reason why we should 
discharge the small additional fraction who are HIV positive.
  The policy is wasteful because it will be throwing away the large 
investment the military has made in the training and experience of 
individuals who can still make a valuable contribution to the Armed 
Forces. Why throw away that investment at the peak of an individual's 
career?
  Not only will the new policy waste our recruitment and training 
dollars, it will throw away invaluable experience.
  Consider the case of the sergeant who has been married for 10 years, 
who has a child, and who is HIV positive. His service record is full of 
honors, including an award for automating a warehouse system that saved 
the Navy an estimated $2 million over a 2-year period.
  He has 12 years of service and has been HIV positive for 5 
years. There is reasonable likelihood that he could serve for many more 
years, with the potential to develop systems that will save millions 
more for the Navy.

  This new policy will deprive him of his livelihood and deprive the 
taxpayers of the contributions that he can make to greater efficiency 
and savings.
  The new policy is unfair because it will leave many servicemembers 
without employment for themselves and health care for their families. 
There is a sergeant with 13 years of service who is married, with three 
children. He is HIV positive, as is his wife and two of the three 
children.
  Under the new policy, he is the only one of the family who will 
retain a right to DOD medical care. His family, including his HIV 
positive wife and two HIV positive children, will be excluded from any 
DOD health care.

[[Page S2294]]

  As a result of the bill, he will be discharged from service, lose his 
employment, loss his retirement potential, and lose his family's 
medical care.
  This is an individual who is perfectly capable of performing military 
duties, yet we are going to throw away our investment in him and place 
him in dire financial straits--even though those who are non-deployable 
for reasons other than HIV will remain in service. That is unfair.
  The new policy is unwise, because it could undermine the traditional 
doctrine of judicial deference to Congress in the realm of military 
personnel policy.
  In a 1994 essay in the Wake Forest Law Review, I examined the Supreme 
Court's precedents and concluded that the Court's jurisprudence 
reflected ``the highest degree of deference to the role of Congress and 
respect for the judgment of the Armed Forces in the delicate task of 
balancing the interests of national security and the rights of military 
personnel.''
  I also noted, however, that the Supreme Court emphasized that 
Congress is not free to disregard the Constitution when it acts in the 
area of military affairs. Consequently, it is essential that Congress 
act with care when it establishes procedures that would impose 
conditions on military service that would be constitutionally 
impermissible in civilian life.
  In the case of the new HIV discharge policy, we have not acted with 
care. It is instructive to contrast the development of the new policy 
with the process followed in 1993 when the legislative and executive 
branch considered the policy on homosexuality in the Armed Forces.
  In February 1993, Congress rejected an amendment that would have 
imposed a policy without any hearings of deliberation. Instead, we 
provided for a 6 month detailed review within the executive branch and 
Congress.
  That period provided an opportunity for the Department of Defense and 
Congress to hold hearings, receive testimony from the members of the 
Armed Forces, legal and academic experts, and interested members of the 
public. The Senate Armed Services Committee alone complied a record of 
more than 1,000 pages in testimony.
  The hearing process and DOD reviews in 1993 were followed by 
the development of a proposed DOD policy and specific legislation, 
including detailed legislative findings. The findings focused on clear 
expert testimony on the impact on unit cohesion, morale, discipline, 
and military effectiveness.

  The civilian and military leadership of the Department of Defense 
supported the legislation; it was overwhelmingly approved after 
thorough debates in both the House and the Senate, was signed into law 
by the President, and has been defended by the Department of Justice in 
the face of several legal challenges.
  Although there may be disagreement on the merits of the 1993 policy, 
the process ensured careful and thorough review by the legislative and 
executive branches of the relevant policy and constitutional issues. 
The process was designed to provide for careful and thorough review. 
The contrast to the development of the new HIV policy could not be more 
striking.
  There has been no review within the executive branch. In fact, the 
military leadership views the policy as unnecessary and unfair.
  The House did not develop a detailed legislative record, and the 
provision was not even included in the Senate-passed bill.
  There is not a clearly articulated legislative basis for treating 
HIV-positive personnel in a manner that differs from the treatment of 
other nondeployables.
  In the absence of careful legislative consideration, it could be 
difficult for the new policy to survive a constitutional challenge--
particularly in terms of the weak arguments for the policy.
  Supporters of the provision have relied primarily on three reasons to 
justify the provision.
  First, they believe that the retention of HIV-positive personnel 
degrades unit readiness. There has been no showing, however, that the 
small fraction of nondeployable personnel who are HIV positive have a 
significantly greater impact in this regard than the large number of 
persons who are nondeployable for other reasons.
  The second reason given for the policy is to establish deployment 
equity on the grounds that if a person is nondeployable, other 
servicemembers stand a greater risk of deployment. That concern might 
be appropriate if the numbers were significantly greater and if the HIV 
positive personnel were the only nondeployables. For example, if the 
number of HIV positive personnel in the Marine Corps were to become a 
significant percentage, then the HIV policy would have to be 
reconsidered together with the policies that retain servicemembers who 
are medically nondeployable for reasons such as cancer, diabetes, 
asthma, and heart disease.
  This however, is not the case today. The numbers are tiny and the 
persons who are nondeployable for other reasons greatly outnumber those 
who are HIV positive.
  The third rationale offered by supporters of the policy is that 
discharge is warranted because, it is asserted, persons who are HIV 
positive likely contracted the infection through sexual misconduct or 
drug abuse.
  There are two problems with this argument. First, it ignores the 
well-established medical fact that HIV can and often is 
transmitted through actions that do not involve military misconduct, 
such as blood transfusions and heterosexual conduct.

  Second, there are ample administrative and judicial procedures in the 
Armed Forces to discipline those who engage in misconduct involving sex 
and drugs. The record does not establish a military need to discharge 
all who are HIV positive in order to maintain good order and 
discipline.
  The administration, believing the new provision to be 
unconstitutional, has determined that it will obey the law but not 
defend it in court.
  As a result, the judiciary will be thrust into the midst of a 
constitutional debate on a controversial military personnel matter with 
a sparse legislative record and a severe split between Congress and the 
President.
  It is an invitation to undermine the doctrine of deference, which has 
served so well and so long to ensure that the Armed Forces have the 
tools necessary to maintain good order and discipline without 
interference from the courts.
  For that reason alone, the provision should be repealed.
  This provision was not part of the Senate-passed authorization bill. 
I opposed this provision during the conference with the House of 
Representatives on the authorization bill and I spoke out against it on 
the floor of the Senate during debate on the conference report.
  Today, I support the amendment that would repeal this provision.
  Mrs. BOXER. Mr. President, despite my objections to the omnibus 
appropriations bill, I am pleased that it includes an amendment 
overturning the prohibition on military service by HIV-positive 
personnel. As my colleagues are aware, this grossly unfair prohibition 
was established in the fiscal year 1996 DOD authorization bill and will 
become effective this summer.
  I opposed the fiscal year 1996 DOD authorization bill largely because 
of this provision. The day the Senate approved that provision, I vowed 
to mount an effort for repeal. I am pleased that today, the full Senate 
has joined in that fight.
  The policy now in effect--developed in the Reagan and Bush 
administration--works well. The amendment contained in this bill 
reinstates the current policy, in which military personnel who test 
positive for the HIV virus are permitted to keep their jobs, so long as 
they are physically able.
  Currently, HIV-positive personnel are treated in the same manner as 
other soldiers with chronic ailments such as diabetes and heart 
disease. Only about 20 percent of the roughly 6,000 worldwide 
nondeployable troops are HIV positive.
  Dismissing all HIV-positive soldiers makes no sense. Why should the 
Pentagon fire military personnel who perform their duties well and 
exhibit no signs of illness? This would waste millions of tax dollars 
in unnecessary separation and retraining costs.
  Backers of this provision argue that HIV-provision personnel degrade 
readiness because they are not eligible for worldwide deployment. This 
argument is absurd. Can anyone seriously contend that about 1,000 
personnel--less than 0.1 percent of the active force--could have a 
meaningful impact on readiness?

[[Page S2295]]

  Assistant Secretary of Defense Fred Pang clearly expressed the 
Department's position, writing,

       As long as these members can perform their required duties, 
     we see no prudent reason to separate and replace them because 
     of their antibody status. However, as with any Service 
     member, if their condition affects their performance of duty, 
     then the Department initiates separation action . . . the 
     proposed provision would not improve military readiness or 
     the personnel policies of the Department.

  Lt. Gen. Theodore Stroup, Jr., Army Deputy Chief of Staff for 
Personnel has echoed these sentiments, writing,

       It is my personal opinion that HIV-infected soldiers who 
     are physically fit for duty should be allowed to continue on 
     active duty.

  I ask unanimous consent that a column I wrote on this subject for the 
Los Angeles Times be printed at this point in the Record.

               [From the Los Angeles Times, Feb. 6, 1996]

                   Congress Misses the ``Magic'' Show


   military: a bill ousting the hiv-positive has nothing to do with 
                 readiness; it's simply discrimination

                           (By Barbara Boxer)

       Americans cheered last week as Earvin ``Magic'' Johnson 
     triumphantly returned to the Los Angeles Lakers. In just 27 
     minutes, he scored 19 points and dispelled any remaining 
     doubt about his ability to compete at the highest level.
       To their credit, Magic's fans, coaches, teammates and even 
     his NBA opponents welcomed him back with open arms. Imagine 
     how absurd it would be if Congress, just as Magic 
     demonstrated his Hall of Fame talent, passed a law requiring 
     the NBA to fire all basketball players who have the HIV 
     virus.
       This past week, Congress did something just that absurd.
       A little-noticed provision of the annual military spending 
     bill requires the Pentagon to fire all soldiers, sailors and 
     Marines who test positive for the HIV virus, even if they 
     perform their duties as skillfully as Magic Johnson makes a 
     no-look pass. The military strongly objected to this 
     provision, but Congress did not care. The president has 
     called the new policy unfair, but because it is part of a 
     larger bill that includes urgently needed funding for our 
     troops in Bosnia, he will sign it into law.
       Under current policy, military personnel with the HIV virus 
     are permitted to remain in the services as long as they are 
     able to perform their duties. If their health deteriorates, 
     the military initiates separation procedures and provides 
     disability benefits and continued health insurance coverage 
     for them and their dependents. So they can remain near health 
     care providers, military personnel with HIV are placed on 
     ``worldwide nondeployable status,'' which means that they 
     cannot be sent on overseas missions. Soldiers with other 
     serious chronic illnesses, such as severe asthma, cancer and 
     diabetes are also nondeployable. In fact, only about 20 
     percent of the more than 5,000 nondeployable personnel are 
     infected with HIV.
       The congressional authors of the new policy, led by Rep. 
     Robert K. Dornan of Orange County, argue that nondeployable 
     personnel degrade military readiness because they cannot be 
     sent overseas. However, their true motive appears to be less 
     lofty than protecting the readiness of our forces. The new 
     policy irrationally singles out military personnel with HIV. 
     If backers truly believe that nondeployable personnel harmed 
     readiness, why wouldn't they seek to oust soldiers with 
     diabetes and asthma? The only conceivable answer is that 
     readiness is not their real motivation. Their motivation is 
     discrimination, pure and simple.
       Can anyone seriously contend that 1,059 HIV-positive 
     soldiers--less than 0.1 percent of the total force--can 
     meaningfully affect readiness? The Pentagon doesn't think so. 
     Its top personnel policy expert, Assistant Defense Secretary 
     Fred Pang, recently wrote that ``as long as these members can 
     perform their required duties, we see no prudent reason to 
     separate and replace them . . . The proposed provision would 
     not improve military readiness or the personnel policies of 
     the department.''
       If Magic Johnson can run and leap with the best of them, 
     why can't a military clerk file with the best of them, or a 
     military driver drive with the best of them?
       Perhaps the worst aspect of the new policy is its total 
     rejection of the compassion and camaraderie for which the 
     armed forces are rightfully praised. The United States of 
     America does not kick its soldiers when they are down. We 
     have a proud tradition of standing by those courageous enough 
     to dedicate their careers to the defense of our nation. That 
     tradition will end the day this new policy is enacted.
       Military personnel discharged under the new policy will 
     lose their jobs even if they exhibit no signs of illness. 
     They will lose their right to disability benefits and their 
     spouses and children will lose their health care coverage. 
     This policy is worse than wrong, it is un-American.
       The same day that President Clinton signs the bill that 
     includes this new policy, a bipartisan group of senators will 
     introduce legislation to repeal it. The president and our 
     senior military leaders support repeal. Despite their strong 
     support, the odds are unclear. But I am certain about one 
     thing: Those who vote ``no'' should take a good look in the 
     mirror.


                         disaster-related funds

  Mr. McCAIN. Mr. President, my amendment will require that any 
disaster-related funds earmarked in this bill for specific projects by 
Federal agencies will be allocated according to the established, 
priority-based procedures of those agencies.
  This amendment would ensure that funds disaster-related funding 
allocated by the Economic Development Administration, the U.S. 
Department of Agriculture, the Department of Housing and Urban 
Development, the Small Business Administration, and the National Park 
Service, will be awarded based on need--and not according to 
unauthorized earmarks.
  This amendment will not reduce the funding in this bill, nor direct 
these agencies to give preferential priority to any particular project, 
State, or region of the country.
  This proposal is entirely fair and equitable to all of the States and 
communities that we represent. It plays no favorites, and offers no 
advantages to individuals who may be well-intentioned in their desire 
to receive funding for a local project. This amendment will simply 
ensure that taxpayer funding made available under this appropriations 
bill will be spent according to recognized priorities, as opposed to 
congressionally mandated earmarks.
  Let me discuss just one example of what I believe is an inappropriate 
expenditure of taxpayer dollars that was added to the legislation 
before us. Last week, an amendment was offered to this bill, and 
adopted without a recorded vote, that would provide a total of $13.8 
million for an unauthorized flood control project.
  That amendment directs the Economic Development Administration [EDA] 
to spend $10 million for flood control work at Devil's Lake Basin in 
North Dakota; it also directs the U.S. Fish and Wildlife Service to 
spend $3.8 million for related work at Devils Lake Basin. The 
approximately $14 million in new taxpayer dollars for this project was 
not requested by the agencies to be funded in this bill, nor was the 
project subjected to any competitive evaluation process by the EDA or 
HUD.
  Mr. President, I don't think this is how the Senate should be doing 
business. And I definitely don't think this is how we should be 
spending taxpayer's dollars, at a time when we have scarce resources 
with which to address many serious disaster needs across the country.
  I believe earmarking funds for a specific project is unfair, 
especially with respect to vital flood control programs. It clearly 
undermines the competitive-review process that ensures that the most 
urgent needs of distressed cities and townships all across America are 
properly addressed.
  While I'm sure that this situation in North Dakota is worthy of 
attention, we have no way of knowing that it represents the most 
serious need for Federal emergency assistance.
  As most of my colleagues are aware, the Economic Development 
Administration [EDA] provides grants for infrastructure programs and 
community projects in economically distressed areas. In doing so, the 
EDA is barraged with hundreds and hundreds more requests for Federal 
aid than they can possibly fulfill. In fact, Mr. President, the EDA has 
such a backlog on official funding requests that they stopped accepting 
additional applications almost a year ago.
  The EDA makes its funding awards through its regional offices on a 
competitive, agency-review basis. Right now the EDA has almost 600 
funding requests awaiting final decisions--600. These requests 
represent the pleas of communities across the United States for help 
from the Federal Government due to military base closures, job losses, 
natural disaster, and declining local economies. Nationally, the EDA 
has received over $320 million in community-based funding requests that 
local officials and residents are anxiously awaiting an answer on.
  Clearly, the EDA has an extremely difficult task in deciding which 
projects to fund. They do so by considering factors such as an areas' 
per capita income; unemployment rate; the local poverty level; the loss 
of population in the community; and the general distress level of 
residents in the area. There will always be more disappointed 
applicants than there are

[[Page S2296]]

winners in a competitive system, but at least the EDA is utilizing a 
set of economic criteria to ensure that the taxpayer dollars it 
administers are scrutinized, and flow to the projects which represent 
truly compelling needs.
  Mr. President, we have before us a mammoth new appropriations bill 
which presents an inviting target for Members to evade this competitive 
system, and bypass its reasonable guidelines for the expenditure of 
taxpayer dollars. The earmark added to this bill effectively sweeps 
aside higher priority requests, and arbitrarily puts one unauthorized 
project at the head of the line. Instead of a community receiving flood 
control assistance because it's needs are urgent and meritorious, this 
one project will prevail over hundreds of others because it secured 
political support. Well intentioned support, I'm sure, but unfair 
nonetheless.
  As I have said many times on this floor, Mr. President, during one of 
my many unsuccessful attempts to curb the Congress's seemingly 
unquenchable thirst for more spending, my criticisms about this 
specific project is about process. I in no way contend that the Devils 
Lake Basin flood control program is unnecessary. I fully recognize that 
the Senators from North Dakota are affirmatively responding to requests 
for assistance from some of their constituents.
  What I do contend is that the Senate should not respond to such 
requests--requests that all 100 Members of this body receive on a daily 
basis--in a manner that circumvents a thorough, merit-based process, 
and substitutes quick-and-easy earmarks in yet another emergency 
spending bill.
  While I am opposed to the Senate again condoning what I feel is an 
indefensible process, let me state that I have not offered this 
amendment out of any respect for endless bureaucratic analysis; I offer 
it because there are dire problems facing our communities and the 
taxpayers who support them, and it is wrong to subvert their efforts to 
play by the rules when they are in need of Federal disaster aid.
  Again, I don't question the possible benefits of the Devil's Lake 
Basin project. I do question the wisdom in the Senate boosting it to 
the head of the line for funding from the Economic Development 
Administration, when there are 84 other project's among North Dakota's 
neighboring States that are also anxiously awaiting funding. Unlike 
Devil's Lake Basin, however, these communities are properly competing 
for funding from the EDA for their disaster needs.
  I have been advised by the EDA, Mr. President, that they did not 
request funding for the Devil's Lake Basin project, nor have the 
project's sponsors officially filed a request for funds with the EDA's 
Denver Regional Office, which allocates funding to North Dakota and 
nine other Western and Midwestern States. Therefore, dozens of 
communities in States such as Colorado, Kansas, Missouri, South Dakota, 
Iowa, Wyoming, and Utah will continue to have their needs go 
unaddressed by EDA, while $10 million in new moneys they might have 
competed for will instead be diverted to a single project.
  I am not talking about mere pennies, either. The total earmark for 
the Devils Lake Basin project in this bill is larger than the entire 
expected budget of the EDA's Denver Regional Office for fiscal year 
1996. This one project will receive almost $13 million in Federal aid, 
while 84 communities in the above 9 States will have to compete with 
each other for the $11 million that the Denver office is anticipating 
for this year. Without a doubt, a number of these requests are 
emergency projects.
  Regrettably, many communities who have developed meritorious 
proposals, and are willing to play by the rules by competing for scarce 
taxpayer dollars, will never get a dime from the EDA.
  Obviously, Mr. President, every Senator in this body is interested in 
receiving Federal funds for infrastructure and disaster aid for their 
State. I'm certainly no exception. Arizona has over $6 million in 
requests pending with the EDA, some of which have been pending for 
several years. For Arizona to even have a chance at having one project 
funded, communities in my State must compete with 115 requests from 
seven other States in Region 7, which includes California, Idaho, 
Alaska, and Hawaii. These States currently have over $100 million in 
requests pending at the EDA. Most of these will be rejected due to the 
intense competition, yet Devils Lake Basin is guaranteed $10 million 
without having to face any competition.
  The $3.8 million earmark for the Devils Lake Basin project in this 
bill from the Fish and Wildlife Service is similar in the respect that 
it was not officially requested by the agency, in its submission to the 
Appropriations Committee for inclusion in this bill. There are other 
earmarks in the bill, as well.
  The amendment I am offering is very simple, and entirely fair to 
every Member of this body, and every State in our Nation. It simply 
says that funding provided in this bill to the EDA, the Fish and 
Wildlife Service, HUD, and other agencies will be awarded according to 
the established prioritization process of those agencies.
  Mr. KENNEDY. Mr. President, I rise to express my deep concern about 
the title VIII of the pending appropriations bill, the so-called Prison 
Litigation Reform Act [PLRA].
  Its proponents say that the PLRA is merely an attempt to reduce 
frivolous prisoner litigation over trivial matters. In reality, the 
PLRA is a far-reaching effort to strip Federal courts of the authority 
to remedy unconstitutional prison conditions. The PLRA is itself 
patently unconstitutional, and a dangerous legislative incursion into 
the work of the judicial branch.
  In my view, the effort to enact this proposal as part of an omnibus 
appropriations bill is inappropriate. Although a version of the PLRA 
was introduced as a free-standing bill and referred to the Judiciary 
Committee, it was never the subject of a committee mark-up, and there 
is no Judiciary Committee report explaining the proposal. The PLRA was 
the subject of a single hearing in the Judiciary Committee, hardly the 
type of thorough review that a measure of this scope deserves.
  At the hearing, Associate Attorney General John Schmidt expressed 
serious concerns about the feasibility and consequences of the PLRA. 
While Mr. Schmidt did not take issue with provisions in the PLRA that 
merely seek to curb frivolous prison litigation, he noted that other 
aspects of the proposal would radically and unwisely curtail the power 
of the Federal courts to remedy constitutional and statutory violations 
in prisons, jails, and juvenile detention facilities.
  I understand that my colleague from Illinois intends to include 
relevant excerpts of Mr. Schmidt's testimony in the Record, but I will 
just highlight several of the objections that he raised, all of which I 
share. Mr. Schmidt observed that:

       The effort to terminate all existing consent decrees 
     ``raise[s] serious constitutional problems'' under doctrines 
     reaffirmed by the Supreme Court as recently as this year;
       Provisions limiting the power of federal courts to issue 
     relief in prison conditions cases would ``create a very 
     substantial impediment to the settlement of prison conditions 
     suits--even if all interested parties are fully satisfied 
     with the proposed resolution.'' ``This would result in 
     litigation that no one wants . . . and could require judicial 
     resolution of matters that would otherwise be more promptly 
     resolved by the parties in a mutually agreeable manner'';
       The proposal to terminate relief two years after issuance 
     is misguided because, in those cases where the problems have 
     not been remedied, the ``Justice Department and other 
     Plaintiffs would have to refile cases in order to achieve the 
     objectives of the original order, and defendants would have 
     the burden of responding to these new suits. Both for reasons 
     of judicial economy, and for the effective protection of 
     constitutional rights, we should aim at the resolution of 
     disputes without unnecessary litigation and periodic 
     disruption of ongoing remedial efforts.''

  All of these problems remain in the legislative language before us 
today.
  In addition, I call to the attention of my colleagues an assessment 
prepared by the Administrative Office of the United States Courts dated 
June 21, 1995. The Office found that the ``potential annual resource 
costs of [the bill] could be more than $239 million and 2,096 
positions, of which at least 280 would be judicial officers--Article 
III judges and/or magistrate judges.'' The bill appropriates no funds 
to the Federal judiciary to offset this enormous fiscal impact.
  Finally, I note with great concern that the bill would set a 
dangerous precedent for stripping the Federal courts of the ability to 
safeguard the

[[Page S2297]]

civil rights of powerless and disadvantaged groups.
  I do not intend to offer an amendment to this bill, because it is 
clear that a majority of the Senate would not vote to strike the 
provision, and I do not believe the Senate is positioned to consider 
detailed improvements to the PLRA during debate on this omnibus 
appropriations bill. But the abbreviated nature of the legislative 
process should not suggest that the proposal is noncontroversial in 
Congress.
  It is my hope that after the President vetoes this bill, as I expect 
he will, that the administration seek to negotiate changes in the PLRA 
that remedy the profound constitutional, fiscal, and practical problems 
outlined by Mr. Schmidt and other experts.
  I ask unanimous consent that a copy of a letter sent by myself and 
four other Senators to the Attorney General on this subject be printed 
in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                 Washington, DC, February 2, 1996.
     Hon. Janet Reno,
     Attorney General of the United States, Department of Justice, 
         Washington, DC.
       Dear Madam Attorney General: We write to express our 
     concern about aspects of the Prison Litigation Reform Act 
     (PLRA), which has passed Congress as title VIII of the 
     Commerce, State, and Justice Departments Appropriations bill. 
     President Clinton vetoed this appropriations bill on December 
     18, but it is our understanding that issues such as the PLRA 
     may be the subject of negotiations between the Administration 
     and members of the Appropriations Committees in the coming 
     weeks.
       We do not take issue with provisions in the PLRA that 
     merely seek to curb frivolous prison litigation. But in other 
     respects, the PLRA is far reaching legislation that would 
     unwisely reduce the power of the federal courts to remedy 
     constitutional and statutory violations in prisons, jails, 
     and juvenile detention facilities.
       PLRA was considered as one of many issues on the 
     appropriations bill. For this reason, PLRA passed on a voice 
     vote following relatively brief debate. But the manner in 
     which the bill passed the Senate should not suggest to you 
     that the Senate considers the proposal to be entirely 
     noncontroversial.
       In particular, we share some of the concerns that Associate 
     Attorney General John R. Schmidt raised in his testimony 
     before the Senate Judiciary Committee on July 27, 1995. Mr. 
     Schmidt noted that provisions limiting the power of federal 
     courts to issue relief in prison conditions cases would 
     ``create a very substantial impediment to the settlement of 
     prison conditions suits--even if all interested parties are 
     fully satisifed with the proposed resolution.'' ``This would 
     result in litigation that no one wants . . . and could 
     require judicial resolution of matters that would otherwise 
     be more promptly resolved by the parties in a mutually 
     agreeable manner.''
       Mr. Schmidt also pointed out that the proposal to terminate 
     relief two years after issuance is troublesome because, in 
     those cases where the problems have not been remedied, the 
     ``Justice Department and other Plaintiffs would have to 
     refile cases in order to achieve the objectives of the 
     original order, and defendants would have the burden of 
     responding to these new suits. Both for reasons of judicial 
     economy, and for the effective protection of constitutional 
     rights, we should aim at the resolution of disputes without 
     unnecessary litigation and periodic disruption of ongoing 
     remedial efforts.''
       These problems have not been remedied by the changes made 
     to the proposal since Mr. Schmidt's testimony.
       We also call to your attention an assessment prepared by 
     the Administrative Office of the United States Courts dated 
     June 21, 1995. The Office found that the ``potential annual 
     resource costs of [the bill] could be more than $239 million 
     and 2,096 positions, of which at least 280 would be judicial 
     officers (Article III judges and/or magistrate judges).'' The 
     bill appropriates no funds to the federal judiciary to offset 
     this enormous fiscal impact.
       We suggest that the Administration negotiate changes in the 
     PLRA that remedy the serious fiscal and practical problems 
     outlined by Mr. Schmidt and other experts.
       Thank you for your attention to this important matter.
           Sincerely,
     Fred Thompson.
     Jim Jeffords.
     Ted Kennedy.
     Joe Biden.
     Jeff Bingaman.

  Mr. SIMON. Mr. President, I join Senator Kennedy in raising my strong 
concerns about the Prison Litigation Reform Act, a section of S. 1594. 
In attempting to curtail frivolous prisoner lawsuits, this legislation 
goes much too far, and instead may make it impossible for the Federal 
courts to remedy constitutional and statutory violations in prisons, 
jails, and juvenile detention facilities. No doubt there are prisoners 
who bring baseless suits that deserve to be thrown out of court. But 
unfortunately, in many instances there are legitimate claims that 
deserve to be addressed. History is replete with examples of egregious 
violations of prisoners' rights. These cases reveal abuses and inhumane 
treatment which cannot be justified no matter what the crime. In 
seeking to curtail frivolous lawsuits, we cannot deprive individuals of 
their basic civil rights. We must find the proper balance.
  My colleague from Illinois, Associate U.S. Attorney General John 
Schmidt, testified before the Senate Judiciary Committee on July 27, 
1995, and raised numerous concerns about this legislation. I have 
included a copy of his comments for my colleagues to review. I should 
also note that at the same hearing, former Attorney General Barr of the 
Bush administration, agreed with the assertion that there are 
constitutional problems with the bill as drafted which have not yet 
been addressed.
  As outlined in Mr. Schmidt's testimony, the bill has so many problems 
that I cannot list them all here. So let me describe just a few. First, 
the bill severely limits the options available to States and courts in 
remedying legitimate complaints. For example, the bill makes it 
virtually impossible for States to enter into consent decrees even when 
the consent decree may well be in the State's best interest for both 
fiscal and policy reasons. Similarly, this legislation, by creating new 
and burdensome standards of review, would effectively prohibit courts 
from placing population caps on prisons. Prison overcrowding obviously 
creates a serious threat to the general public, as well as to prison 
staffs and the inmates themselves. We must not exacerbate this problem. 
Furthermore, the bill places undue burdens on States and courts by 
requiring that relief be terminated 2 years after issuance even in 
cases where the problems have not been remedied
  I am very discouraged that this legislation was considered as one of 
many issues on an appropriations bill. Legislation with such far 
reaching implications certainly deserves to be thoroughly examined by 
the committee of jurisdiction and not passed as a rider to an 
appropriations bill. I urge the White House to carefully review these 
provisions and work with Congress to make the necessary changes to 
remedy the myriad of constitutional and practical problems found in 
this far-reaching legislation.
  I ask unanimous consent that the relevant portions of Mr. Schmidt's 
testimony be printed in the Record.
  There being no objection, the testimony was ordered to be printed in 
the Record, as follows:

                       Testimony of John Schmidt


                reforms relating to prisoner litigation

       The Department also supports improvements of the criminal 
     justice system through the implementation of other reforms. 
     Several pending bills under consideration by the Senate 
     contain three sets of reforms that are intended to curb 
     abuses or perceived excesses in prisoner litigation or prison 
     conditions suits.
       The first set of provisions appears in title II of H.R. 667 
     as passed by the House of Representatives, and in Sec. 103 of 
     S. 3. These provisions strengthen the requirement of 
     exhaustion of administrative remedies under the Civil Rights 
     of Institutionalized Persons Act (CRIPA) for state prisoner 
     suits, and adopt other safeguards against abusive prisoner 
     litigation. We have endorsed these reforms in an earlier 
     communication to Congress.\1\ We also recommend that parallel 
     provisions be adopted to required federal prisoners to 
     exhaust administrative remedies prior to commencing 
     litigation.
---------------------------------------------------------------------------
     \1\ Letter of Assistant General Shalla F. Anthony to 
     Honorable Henry J. Hyde concerning H.R. 3, at 17-19 (January 
     26, 1995).
---------------------------------------------------------------------------
       The second set of provisions appears in a new bill, S. 866, 
     which we have not previously commented on. The provisions in 
     this bill have some overlap with those in Sec. 103 of S. 3 
     and title II of H.R. 667, but also incorporate a number of 
     new proposals. We support the objectives of S. 866 and many 
     of the specific provisions in the bill. In some instances, we 
     have recommendations for alternative formulations that could 
     realize the bill's objectives more effectively.
       The third set of provisions appears in S. 400, and in title 
     III of H.R. 667 as passed by the House of Representatives, 
     the ``Stop Turning Out Prisoners'' (STOP) proposal. The 
     Violent Crime Control and Law Enforcement Act of 1994 enacted 
     18 U.S.C. 3626, which limits remedies in prison conditions 
     litigation. The STOP proposal would amend this section to 
     impose various additional conditions and restrictions. We 
     support the

[[Page S2298]]

     basic objective of this legislation, including particularly 
     the principle that judicial caps on prison populations must 
     be used only as a last resort when no other remedy is 
     available for a constitutional violation, although we have 
     constitutional or policy concerns about a few of its specific 
     provisions.

      A. The Provisions in Sec. 103 of S. 3 and H.R. 667 title II

       As noted above, we support the enactment of this set of 
     provisions.
       The Civil Rights of Institutionalized Person Act (42 U.S.C. 
     Sec. 1997e) currently authorizes federal courts to suspend 
     Sec. 1983 suits by prisoners for up to 180 days in order to 
     require exhaustion of administrative remedies. Section 
     103(a)-(b), (e) of S. 3 strengthens the administrative 
     exhaustion rules in this context--and brings it more into 
     line with administrative exhaustion rules that apply in other 
     contexts--by generally prohibiting prisoner Sec. 1983 suits 
     until administrative remedies are exhausted.
       As noted above, we recommend that this proposal also 
     incorporate a rule requiring federal prisoners to exhaust 
     administrative remedies prior to commencing litigation. A 
     reform of this type is as desirable for federal prisoners as 
     the corresponding strengthening of the exhaustion provision 
     for state prisoners that now appears in section 103 of S. 3. 
     We would be pleased to work with interested members of 
     Congress in formulating such a provision.
       Section 103(c) of S. 3 directs a court to dismiss a 
     prisoner Sec. 1983 suit if the court is satisfied that the 
     action fails to state a claim upon which relief can be 
     granted or is frivolous or malicious. A rule of this type is 
     desirable to minimize the burden on states of responding 
     unnecessarily to prisoner suits that lack merit and are 
     sometimes brought for purposes of harassment or recreation.
       Section 103(d) of S. 3 deletes from the minimum standards 
     for prison grievance systems in 42 U.S.C. 1997e(b)(2) the 
     requirement of an advisory role for employees and inmates 
     (at the most decentralized level as is reasonably 
     possible) in the formulation, implementation, and 
     operation of the system. This removes the condition that 
     has been the greatest impediment in the past to the 
     willingness of state and local jurisdictions to seek 
     certification for their grievance systems.
       Section 103(f) of S. 3 strengthens safeguards against and 
     sanctions for false allegations of poverty by prisoners who 
     seek to proceed in forma pauperis. Subsection (d) of 28 
     U.S.C. 1915 currently reads as follows: ``The court may 
     request an attorney to represent any such person unable to 
     employ counsel and may dismiss the case if the allegation of 
     poverty is untrue, or if satisfied that the action is 
     frivolous or malicious.'' Section 103(f)(1) of S. 3 amends 
     that subsection to read as follows: ``The court may request 
     an attorney to represent any such person unable to employ 
     counsel and shall at any time dismiss the case if the 
     allegation of poverty is untrue, or if satisfied that the 
     action fails to state a claim upon which relief may be 
     granted or is frivolous or malicious even if partial filing 
     fees have been imposed by the court.''
       Section 103(f)(2) of S. 3 adds a new subsection (f) to 28 
     U.S.C. 1915 which states that an affidavit of indigency by a 
     prisoner shall include a statement of all assets the prisoner 
     possesses. The new subsection further directs the court to 
     make inquiry of the correctional institution in which the 
     prisoner is incarcerated for information available to that 
     institution relating to the extent of the prisoner's assets. 
     This is a reasonable precaution. The new subsection concludes 
     by stating that the court ``shall require full or partial 
     payment of filing fees according to the prisoner's ability to 
     pay.'' We would not understand this language as limiting the 
     court's authority to require payment by the prisoner in 
     installments, up to the full amount of filing fees and other 
     applicable costs, where the prisoner lacks the means to make 
     full payment at once.

                               B. S. 866

       Section 2 in S. 866 amends the in forma pauperis statute, 
     28 U.S.C. 1915, in the following manner: (1) The authority to 
     allow a suit without prepayment of fees--as opposed to 
     costs--in subsection (a) is deleted. (2) A prisoner bringing 
     a suit would have to submit a statement of his prison account 
     balance for the preceding six months. (3) A prisoner would be 
     liable in all cases to pay the full amount of a filing fee. 
     An initial partial fee of 20% of the average monthly deposits 
     to or average monthly balance in the prisoner's account would 
     be required, and thereafter the prisoner would be required to 
     make monthly payments of 20% of the preceding month's income 
     credited to the account, with the agency having custody of 
     the prisoner forwarding such payments whenever the amount in 
     the account exceeds $10. However, a prisoner would not be 
     barred from bringing any action because of inability to pay 
     the initial partial fee. (4) If a judgment against a prisoner 
     includes the payment of costs, the prisoner would be 
     required to pay the full amount of costs ordered, in the 
     same manner provided for the payment of filing fees by the 
     amendments.
       In essence, the point of these amendments is to ensure that 
     prisoners will be fully liable for filing fees and costs in 
     all cases, subject to the proviso that prisoners will not be 
     barred from suing because of this liability if they are 
     actually unable to pay. We support this reform in light of 
     the frequency with which prisoners file frivolous and 
     harassing suits, and the general absence of other 
     disincentives to doing so.
       However, the complicated standards and detailed numerical 
     prescriptions in this section are not necessary to achieve 
     this objective. It would be adequate to provide simply that 
     prisoners are fully liable for fees and costs, that their 
     applications must be accompanied by certified prison account 
     information, and that funds from their accounts are to be 
     forwarded periodically when the balance exceeds a specified 
     amount (such as $10) until the liability is discharged. We 
     would be pleased to work with the sponsors to refine this 
     proposal.
       In addition to these amendments relating to fees and costs, 
     Sec. 2 of S. 866 strengthens 28 U.S.C. 1915(d) to provide 
     that the court shall dismiss the case at any time if the 
     allegation of poverty is untrue or if the action is frivolous 
     or malicious or fails to state a claim. This is substantially 
     the same as provisions included in Sec. 103 of S. 3 and title 
     II of H.R. 667, which we support.
       Section 3 of S. 866 essentially directs courts to review as 
     promptly as possible suits by prisoners against governmental 
     entities or their officers or employees, and to dismiss such 
     suits if the complaint fails to state a claim or seeks 
     monetary relief from an immune defendant. This is a desirable 
     provision that could avoid some of the burden on states and 
     local governments of responding to nonmeritorious prisoner 
     suits.
       Section 6 provides that a court may order revocation of 
     good time credits for federal prisoners if (1) the court 
     finds that the prisoner filed a malicious or harassing civil 
     claim or testified falsely or otherwise knowingly presented 
     false evidence or information to the court, or (2) the 
     Attorney General determines that one of these circumstances 
     has occurred and recommends revocation of good time credit to 
     the court.
       We support this reform in principle. Engaging in malicious 
     and harassing litigation, and committing perjury or its 
     equivalent, are common forms of misconduct by prisoners. Like 
     other prisoner misconduct, this misconduct can appropriately 
     be punished by denial of good time credits.
       However, the procedures specified in section 6 are 
     inconsistent with the normal approach to denial of good time 
     credits under 18 U.S.C. 3624. Singling out one form of 
     misconduct for discretionary judicial decisions concerning 
     denial of good time credits--where all other decisions of 
     this type are made by the Justice Department--would work 
     against consistency in prison disciplinary policies, and 
     would make it difficult or impossible to coordinate sanctions 
     imposed for this type of misconduct with those imposed for 
     other disciplinary violations by a prisoner.
       We accordingly recommend that Sec. 6 of S. 866 be revised 
     to provide that (1) a court may, and on motion of an adverse 
     party shall, make a determination whether a circumstance 
     specified in the section has occurred (i.e., a malicious or 
     harassing claim or knowing falsehood), (2) the court's 
     determination that such a circumstance occurred shall be 
     forwarded to the Attorney General, and (3) on receipt of such 
     a determination, the Attorney General shall have the 
     authority to deny good time credits to the prisoner. We would 
     be pleased to work with the sponsors to refine this proposal.
       Section 7 of S. 866 strengthens the requirement of 
     exhaustion of administrative remedies under CRIPA in prisoner 
     suits. It is substantially the same as part of Sec. 103 of S. 
     3, which we support.\2\
---------------------------------------------------------------------------
     \2\ However, there is a typographic error in line 22 of page 
     8 of the bill. The words ``and exhausted'' in this line 
     should be ``are exhausted.''
---------------------------------------------------------------------------

                         C. The STOP Provisions

       As noted above, we support the basic objective of the STOP 
     proposal, including particularly the principle that 
     population caps must be only a ``last resort'' measure. 
     Responses to unconstitutional prison conditions must be 
     designed and implemented in the manner that is most 
     consistent with public safety. Incarcerated criminals should 
     not enjoy opportunities for early release, and the system's 
     general capacity to provide adequate detention and 
     correctional space should not be impaired, where any feasible 
     means exist for avoiding such a result.
       It is not necessary that prisons be comfortable or 
     pleasant; the normal distresses and hardships of 
     incarceration are the just consequences of the offenders' own 
     conduct. However, it is necessary to recognize that there is 
     nevertheless a need for effective safeguards against inhuman 
     conditions in prisons and other facilities. The 
     constitutional provision enforced most frequently in prison 
     cases is the Eighth Amendment's prohibition of cruel and 
     unusual punishment. Among the conditions that have been found 
     to violate the Eighth Amendment are excessive violence, 
     whether inflicted by guards or by inmates under the 
     supervision of indifferent guards, preventable rape, 
     deliberate indifference to serious medical needs, and lack of 
     sanitation that jeopardizes health. Prison crowding may also 
     be a contributing element in a constitutional violation. For 
     example, when the number of inmates at a prison becomes so 
     large that sick inmates cannot be treated by a physician in a 
     timely manner, or when crowded conditions lead to a breakdown 
     in security and contribute to violence against inmates, the 
     crowding can be addressed as a contributing cause of a 
     constitutional violation. See generally Wilson v. Seiter, 501 
     U.S. 294 (1991); Rhodes v. Chapman, 452 U.S. 337 (1981).

[[Page S2299]]

       In considering reforms, it is essential to remember that 
     inmates do suffer unconstitutional conditions of confinement, 
     and ultimately must retain access to meaningful redress when 
     such violations occur. While Congress may validly enact 
     legislative directions and guidance concerning the nature and 
     extent of prison conditions remedies. It must also take care 
     to ensure that any measures adopted do not deprive prisoners 
     of effective remedies for real constitutional wrongs.
       With this much background, I will now turn to the specific 
     provisions of the STOP legislation.
       The STOP provisions of S. 400 and title III of H.R. 667--in 
     proposed 18 U.S.C. 3626(a)--provide that prospective relief 
     in prison conditions suits small extend no further than 
     necessary to remove the conditions causing the deprivation of 
     federal rights of individual plaintiffs, that such relief 
     must be narrowly drawn and the least intrusive means of 
     remedying the derivation, and that substantial weight must be 
     given to any adverse impact on public safety or criminal 
     justice system operations in determining intrusiveness. They 
     further provide that relief reducing or limiting prison 
     population is not allowed unless crowding is the primary 
     cause of the deprivation of a federal right and no other 
     relief will remedy that deprivation.
       Proposed 18 U.S.C. 3626(b) in the STOP provisions provides 
     that any prospective relief in a prison conditions action 
     shall automatically terminate after two years (running from 
     the time the federal right violation is found or enactment of 
     the STOP legislation), and that such relief shall be 
     immediately terminated if it was approved or granted in the 
     absence of a judicial finding that prison conditions violated 
     a federal right.
       Proposed 18 U.S.C. 3626(c) in the STOP provisions requires 
     prompt judicial decisions of motions to modify or terminate 
     prospective relief in prison conditions suits, with automatic 
     stays of such relief 30 days after a motion is filed under 18 
     U.S.C. 3626(b), and after 180 days in any other case.
       Proposed 18 U.S.C. 3626(d) in the STOP provisions confers 
     standing to oppose relief that reduces or limits prison 
     population on any federal, state, of local official or unit 
     of government whose jurisdiction or function includes the 
     prosecution or custody of persons in a prison subject to 
     such relief, or who otherwise may be affected by such 
     relief.
       Proposed 18 U.S.C. 3626(e) in the STOP provisions prohibits 
     the use of masters in prison conditions suits in federal 
     court, except for use of magistrates to make proposed 
     findings concerning complicated factual issues. Proposed 18 
     U.S.C. 3626(f) in the STOP provisions imposes certain 
     limitations on awards of attorney's fees in prison conditions 
     suits under federal civil rights laws.
       Finally, the STOP provisions provide that the new version 
     of 18 U.S.C. 3626 shall apply to all relief regardless of 
     whether it was originally granted or approved before, on, or 
     after its enactment.
       The bills leave unresolved certain interpretive questions. 
     While the revised section contains some references to 
     deprivation of federal rights, several parts of the section 
     are not explicitly limited in this manner, and might be 
     understood as limiting relief based on state law claims in 
     prison conditions suits in state courts. The intent of the 
     proposal, however, is more plausibly limited to setting 
     standards for relief which is based on claimed violations of 
     federal rights or imposed by federal court orders. If so, 
     this point should be made clearly in relation to all parts of 
     the proposal.
       A second interpretive question is whether the proposed 
     revision of 18 U.S.C. 3626 affects prison conditions suits in 
     both federal and state court, or just suits in federal court. 
     In contrast to the current version of 18 U.S.C. 3626, the 
     proposed revision--except for the new provision restricting 
     the use of masters--is not, by its terms, limited to federal 
     court proceedings. Hence, most parts of the revision appear 
     to be intended to apply to both federal and state court 
     suits, and would probably be so construed by the courts. To 
     avoid extensive litigation over an issue that goes to the 
     basic scope of the proposal, this question should be clearly 
     resolved one way or the other by the text of the proposal.
       The analysis of constitutional issues raised by this 
     proposal must be mindful of certain fundamental principles. 
     Congress possesses significant authority over the remedies 
     available in the lower federal courts, subject to the 
     limitations of Article III, and can eliminate the 
     jurisdiction of those courts altogether. In the latter 
     circumstance, state courts (and the U.S. Supreme Court on 
     review) would remain available to provide any necessary 
     constitutional remedies excluded from the jurisdiction of the 
     inferior federal courts. Congress also has authority to 
     impose requirements that govern state courts when they 
     exercise concurrent jurisdiction over federal claims, see 
     Fielder v. Casey, 487 U.S. 131, 141 (1988), but if Congress 
     purports to bar both federal and state courts from issuing 
     remedies necessary to redress colorable constitutional 
     violations, such legislation may violate due process. See, 
     e.g., Webster v. Dob, 486 U.S. 592, 603 (1988); Bowen v. 
     Michigan Academy of Family Physicians, 476 U.S. 667, 681 
     n.12 (1986); Bartlett v. Bowman, 816 F.2d 695, 703-07 
     (D.C. Cir. 1987). We therefore examine the proposal's 
     various remedial restrictions from that perspective.
       Proposed 18 U.S.C. 3626(a)(1) in the proposal goes further 
     than the current statute in ensuring that any relief ordered 
     is narrowly tailored. However, since it permits a court to 
     order the ``relief . . . necessary to remove the conditions 
     that are causing the deprivation of . . . Federal rights,'' 
     this aspect of the proposal appears to be constitutionally 
     unobjectionable, even if it constrains both state and federal 
     courts.
       Proposed 18 U.S.C. 3626(a)(2) bars relief that reduces or 
     limits prison population unless crowding is the primary cause 
     of the deprivation of a federal right and no other relief 
     will remedy the deprivation. We strongly support the 
     principle that measures limiting prison population should be 
     the last resort in prison conditions remedies. Remedies must 
     be carefully tailored so as to avoid or keep to an absolute 
     minimum any resulting costs to public safety. Measures that 
     result in the early release of incarcerated criminals, or 
     impair the system's general capacity to provide adequate 
     detention and correctional space, must be avoided when any 
     other feasible means exist for remedying constitutional 
     violations.
       Certain features of the formulation of proposed 18 U.S.C. 
     3626(a)(2) however, raise constitutional concerns. In certain 
     circumstances, prison overcrowding may result in a violation 
     of the Eighth Amendment, see Rhodes v. Chapman, 452 U.S. 337 
     (1981). Hence, assuming that this provision constrains both 
     state and federal courts, it would be exposed to 
     constitutional challenge as precluding adequate remedy for a 
     constitutional violation in certain circumstances. For 
     example, severe safety hazards or lack of basic sanitation 
     might be the primary cause of unconstitutional conditions in 
     a facility, yet extreme overcrowding might be a substitute 
     and independent, but secondary, cause of such conditions. 
     Thus, this provision could foreclose any relief that reduces 
     or limits prison population through a civil action in such a 
     case, even if no other form of relief would rectify the 
     unconstitutional condition of overcrowding.
       This problem might be avoided through an interpretation of 
     the notion of a covered ``civil action'' under the revised 
     section as not including habeas corpus proceedings in state 
     or federal court which are brought to obtain relief from 
     unconstitutional conditions of confinement. See e.g., Preiser 
     v. Rodriguez, 411 U.S. 475, 499 (1973). However, this depends 
     on an uncertain construction of the proposed statute, and the 
     proposal's objectives could be undermined if the extent of 
     remedial authority depended on the form of the action (habeas 
     proceedings vs. regular civil action). Since the relief 
     available in habeas proceedings in this context could be 
     limited to release from custody, reliance on such proceedings 
     as an alternative could carry heavy costs in relation to this 
     proposal's evident objective of limiting the release of 
     prisoners as a remedy for unconstitutional prison 
     conditions.
       A more satisfactory and certain resolution of the problem 
     would be to delete the requirement in proposed 18 U.S.C. 
     3626(a)(2) that crowding must be the primary cause of the 
     deprivation of a federal right. This would avoid potential 
     constitutional infirmity while preserving the requirement 
     that prison caps and the like can only be used where no other 
     remedy would work.
       Proposed 18 U.S.C. 3626(b)--which automatically terminates 
     prospective relief after two years, and provides for the 
     immediate termination of prospective relief approved without 
     a judicial finding of violation of a federal right--raises 
     additional constitutional concerns. It is possible that 
     prison conditions held unconstitutional by a court may 
     persist for more than two years after the court has found the 
     violation, and while the court order directing prospective 
     relief is still outstanding. Hence, this provision might be 
     challenged on constitutional grounds as foreclosing adequate 
     judicial relief for a continuing constitutional violation.
       However, we believe that this provision is constitutionally 
     sustainable against such a challenge because it would not cut 
     off all alternative forms of judicial relief, even if it 
     applies both to state court and federal court suits. The 
     possibility of construing the statute as not precluding 
     relief through habeas corpus proceedings has been noted above 
     (as has the possibility that habeas may provide only limited 
     relief), More importantly, the section does not appear to 
     foreclose an aggrieved prisoner from instituting a new and 
     separate civil action based on constitutional violations that 
     persisted after the automatic termination of the prior 
     relief.
       A more pointed constitutional concern arises from the 
     potential application of the restrictions of proposed 18 
     U.S.C. 3626(b) to terminate uncompleted prospective relief 
     ordered in judgments that became final prior to the 
     legislation's enactment. The application of these 
     restrictions to such relief raises constitutional concerns 
     under the Supreme Court's recent decision in Plauty, 
     Spendthrift Farm, Inc., 115 S.Ct. 1447 (1995). The Court held 
     in that case that legislation which retroactively interferes 
     with final judgments can constitute an unconstitutional 
     encroachment on judicial authority. It is uncertain whether 
     Plaut's holding applies with full force to the prospective, 
     long-term relief that is involved in prison conditions cases. 
     However, if the decision does fully apply in this context, 
     the application of proposed 18 U.S.C. 3626(b) to orders in 
     pre-enactment final judgments would raise serious 
     constitutional problems.
       While we believe that most features of that STOP proposal 
     are constitutionally sustainable, at least in prospective 
     effect, we find two aspects of the legislation to be 
     particularly problematic for policy reasons.

[[Page S2300]]

       First, the proposal apparently limits prospective relief to 
     cases involving a judicial finding of a violation of a 
     federal right. This could create a very substantial 
     impediment to the settlement of prison conditions suits--
     even, if all interested parties are fully satisfied with the 
     proposed resolution--because the defendants might effectively 
     have to concede that they have caused or tolerated 
     unconstitutional conditions in their facilities in order to 
     secure judicial approval of the settlement. This would result 
     in litigation that no one wants, if the defendants were 
     unwilling to make such a damaging admission, and could 
     require judicial resolution of matters that would otherwise 
     be more promptly resolved by the parties in a mutually 
     agreeable manner.
       Second, we are concerned about the provision that would 
     automatically terminate any prospective relief after two 
     years. In some cases the unconstitutional conditions on which 
     relief is premised will not be corrected within this 
     timeframe, resulting in a need for further prison conditions 
     litigation. The Justice Department and other plaintiffs, 
     would have to refile cases in order to achieve the objectives 
     of the original order, and defendants would have the burden 
     of responding to these new suits. Both for reasons of 
     judicial economy, and for the effective protection of 
     constitutional rights, we should aim at the resolution of 
     disputes without unnecessary litigation and periodic 
     disruptions of ongoing remedial efforts. This point applies 
     with particular force where the new litigation will revisit 
     matters that have already been adjudicated and resolved in an 
     earlier judgment.
       Existing law, in 18 U.S.C. 3626(c), already requires that 
     any order of consent decree seeking to remedy an Eighth 
     Amendment violation be reopened at the behest of a defendant 
     for recommended modification at a minimum of two year 
     intervals. This provision could be strengthened to give 
     eligible intervenors under the STOP proposal, including 
     prosecutors, the same right to periodic reconsideration of 
     prison conditions orders and consent decrees. This would be a 
     more reasonable approach to guarding against the unnecessary 
     continuation of orders than imposition of an unqualified, 
     automatic time limit on all orders of this type.
  Mr. HATFIELD. Mr. President, for the better part of an hour we have 
notified Members through the communication system that we are ready to 
go to third reading and finalize, first of all, the managers' package--
for the better part of an hour. And I think it has now reached a 
reasonable period of time to bring this to a halt.
  So I want to say that at 5:05--in 15 minutes--I will ask for the 
lifting of the quorum and the Chair will put the question. So that will 
mean we have waited for an hour and 10 minutes for anyone to exercise 
their parliamentary right. I think that is a fairly good test of 
knowing if anyone is interested in doing so. Then we will move to the 
third reading following the adoption of the managers' package.
  Mr. FAIRCLOTH addressed the Chair.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. FAIRCLOTH. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator is recognized.

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