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Calendar No. 709
107th Congress Report
2d Session SENATE 107-330
UNITED STATES CONSENSUS COUNCIL ACT OF 2001
R E P O R T
COMMITTEE ON GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
TO ESTABLISH THE UNITED STATES CONSENSUS COUNCIL TO PROVIDE FOR A
CONSENSUS BUILDING PROCESS IN ADDRESSING NATIONAL PUBLIC POLICY ISSUES,
AND FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
November 4, 2002.--Ordered to be printed
Filed under authority of the order of the Senate of October 17, 2002
COMMITTEE ON GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan FRED THOMPSON, Tennessee
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
RICHARD J. DURBIN, Illinois SUSAN M. COLLINS, Maine
ROBERT G. TORRICELLI, New Jersey GEORGE V. VOINOVICH, Ohio
MAX CLELAND, Georgia THAD COCHRAN, Mississippi
THOMAS R. CARPER, Delaware ROBERT F. BENNETT, Utah
JEAN CARNAHAN, Missouri JIM BUNNING, Kentucky
MARK DAYTON, Minnesota PETER G. FITZGERALD, Illinois
Joyce A. Rechtschaffen, Staff Director and Counsel
Susan E. Hertling, Counsel
Richard A. Hertling, Minority Staff Director
William M. Outhier, Minority Chief Counsel
Darla D. Cassell, Chief Clerk
C O N T E N T S
I. Purpose and Summary..............................................1
III. Discussion of Legislation........................................2
IV. Legislative History..............................................3
V. Section-by-Section Analysis......................................3
VI. Evaluation of Regulatory Impact..................................7
VII. CBO Cost Estimate................................................8
VIII.Changes to Existing Law..........................................9
Calendar No. 709
107th Congress Report
2d Session 107-330
UNITED STATES CONSENSUS COUNCIL ACT OF 2001
November 4, 2002.--Ordered to be printed
Filed under authority of the order of the Senate of October 17, 2002
Mr. Lieberman, from the Committee on Governmental Affairs, submitted
R E P O R T
[To accompany S. 1651]
The Committee on Governmental Affairs, to which was
referred the bill (S. 1651) to establish the United States
Consensus Council to provide for a consensus building process
in addressing national public policy issues, and for other
purposes, reports favorably thereon with an amendment in the
nature of a substitute and recommends that the bill as amended
I. PURPOSE AND SUMMARY
S. 1651 is a bill to establish the United States Consensus
Council (Council), an independent nonprofit entity that will
provide professional mediation services in cooperation with
Congress (and perhaps others) to help resolve difficult policy
issues by building consensus agreements among stakeholders.
Following the completion of a consensus-building process, the
Council will issue a report reflecting the results of its
consideration and efforts. This report is advisory and will not
be binding on the decision-makers, but should contain policy
solutions that would be acceptable to key stakeholders involved
in the issue.
The United States Consensus Council is modeled upon similar
entities that have operated in several states, including the
Montana Consensus Council and the Consensus Council, Inc. in
North Dakota. These Councils have addressed a wide variety of
issues at the state level, such as hazardous waste treatment,
mental health care, and urban sprawl.
Although it is the role of Congress to find solutions to
the country's important public policy issues, the creation of
the United States Consensus Council may be useful to Congress
when it is faced with issues that are particularly complex or
contentious, or that cross committee jurisdictional lines. In
such cases, the Council may identify the range of stakeholders,
assist those stakeholders to clarify and narrow their
differences, and find areas of common ground on which they can
agree. The Council will address only issues that are chosen in
cooperation with appropriate leaders of Congress from both
parties and the results reported by the Council based on its
efforts will be solely advisory, subject to the normal
III. DISCUSSION OF LEGISLATION
Senator Lieberman offered a substitute amendment to S. 1651
at the Committee's October 9, 2002 markup, which was co-
sponsored by Senator Carper. The substitute, which was adopted
by the Committee, clarifies the focus of the Council's work on
policy issues before Congress, ensures that the Council is
appropriately constituted and operated as an independent
nonprofit organization, and provides for disclosure of the
sources of funding received by the Council.
As revised by the substitute, S. 1651 establishes the
United States Consensus Council as an independent nonprofit
corporation under the District of Columbia Nonprofit
Corporation Act. The Council will not be an agency or
instrumentality of the United States.
The Council's powers are vested in an 8 member part-time
Board of Directors. Each of the leaders of the majority and
minority in the House of Representatives and the Senate may
select two Board members, who will not be subject to Senate
confirmation. Members of the Board will not be federal officers
or employees, and may not be selected from among those who are
federal officers or employees or Members of Congress. Directors
will serve no more than two four year terms, except that the
first Directors selected by the Speaker and the Minority Leader
of the House of Representatives will be initially appointed to
terms of two years, and may then be reappointed to no more than
two additional four-year terms.
The Council will also be headed by a President, selected by
the Board, who will be the chief executive officer of the
Council and carry out the functions of the Council subject to
the supervision of the Board. The Council may request that
federal employees be detailed to the Council from any federal
department or agency or from any Congressional office on a
reimbursable basis. The Council will work with existing federal
agencies that provide consensus-building services, such as the
Federal Mediation and Conciliation Service and the U.S.
Institute for Environmental Conflict Resolution, to ensure that
the Council avoids duplicating the mission of those agencies.
The Council may receive appropriated funds from Congress
and may also accept private sector contributions for its
activities. It must report annually to Congress and the
President on its activities to disclose the sources of funding
it receives and the purposes for which the funds were
contributed. The report must also include a copy of the
Council's audited annual financial statement. GAO will review
the annual report. On dissolution of the Council, all funds
received from appropriations, including any interest earned on
appropriated funds, will revert to the United States Treasury.
IV. LEGISLATIVE HISTORY
S. 1651 was introduced on November 7, 2001 by Senator
Dorgan and was referred to the Committee on Governmental
Affairs. The bill was co-sponsored by a bipartisan group of
nine Senators. At the Committee's markup on October 9, 2002, S.
1651 was reported out with a Lieberman/Carper substitute
amendment by a roll call vote of 9-0. Members present were
Levin, Akaka, Cleland, Durbin, Torricelli, Carper, Carnahan,
Dayton and Lieberman.
A companion bill, H.R. 3305, was introduced in the House of
Representatives on November 15, 2001 by Representative Dennis
Rehberg and was referred to the Subcommittee on Government
Efficiency, Financial Management and Intergovernmental
Relations of the House Committee on Government Reform.
V. SECTION BY SECTION ANALYSIS
Sec. 1. Short title
This section states that the Act may be cited as the
``United States Consensus Council Act of 2002.''
Sec. 2. Findings and purpose
Paragraph (a). Findings. Paragraph (a) sets forth
congressional findings which: (1) recognize that there is
increasing success in addressing critical public policy issues
through consensus building approaches; (2) state the need for a
national Council to use such approaches on legislative policy
issues of national importance; (3) assert that such a Council
may enroll specific stakeholders, both public and private, to
build agreements that may be implemented by appropriate
authorities; (4) conclude that such a Council will strive to
create agreements that integrate differing perspectives into
highest common denominator solutions; (5) state that such a
Council is an appropriate investment by the people of this
Nation; (6) state that such a Council could prevent
polarization on emerging policy issues; (7) recognize that such
a Council may contribute to a renewed sense of civility and
respect for different points of view; and (8) state that the
Council may become a repository of wisdom and experience on
public policy collaboration.
Paragraph (b). Purpose. This paragraph states that the
purpose of this Act is to establish an independent, nonprofit,
national Council to serve the Nation by seeking to produce
consensus on policy issues of national importance.
Sec. 3. Definitions
This section provides the definition of three terms.
``Board'' means the Board of Directors of the Council.
``Council'' refers to the United States Consensus Council.
``Director'' means an individual appointed to the Council's
Board of Directors.
Sec. 4. United States Consensus Council
Paragraph (a). Establishment. Paragraph (a) provides for
the establishment of the United States Consensus Council.
Paragraph (b). District of Columbia Nonprofit Corporation;
Status; Restrictions. Paragraph (b) requires that the Council
be incorporated as an independent, nonprofit corporation under
the District of Columbia Nonprofit Corporation Act, and that
the Council shall be subject to all the requirements and
oversight applicable pursuant to this Act. It further states
that the Council is not an agency or instrumentality of the
Paragraph (c). Trade Name and Trademark Rights; Vested
Rights Protected; Condition for Use of Federal Identity.
Subsection (c)(1) authorizes the Council to have the sole and
exclusive right to use and to authorize the use of the term
``United States Consensus Council,'' as well as any emblem,
badge, seal, or other mark of recognition adopted by the
Council. Subsection (c)(2) restricts the Council's ability to
reference the United States Government or Nation in its name or
in any mark of recognition to those fiscal years in which the
Council has received an authorization of appropriations, or
appropriations, by law.
Sec. 5. Powers and duties
Paragraph (a). In General. Paragraph (a) states that the
Council may exercise all the authorities conferred by the
District of Columbia Nonprofit Corporation Act that are
consistent with this Act.
Paragraph (b). Description of Specific Activities.
Subsection (b)(1) describes some of the specific activities
that the Council may undertake in carrying out its purpose of
assisting in the development of consensus on national policy
issues. These activities include designing consensus processes,
establishing relationships with other institutions, both
private and public, that will be able to assist in such
processes, and coordinating with existing federal entities to
avoid duplication. Subsection (b)(2) requires that the Council
avoid taking action that would conflict with the authority of
the United States Institute for Environmental Conflict
Resolution or the Federal Mediation and Conciliation Service,
unless the Institute or the Service consents. The Council may
wish to enter into memoranda of understanding with these
agencies that will delineate the situations in which potential
conflicts may arise so that the circumstances under which
consent must be sought are clear. The Institute or Service may
also refer matters to the Council or ask the Council to partner
with them on a particular matter. Subsection (b)(3) sets
outsome of the steps the Council may take in designing a consensus
process for a specific policy issue, such as considering the ripeness
of the issue and identifying the stakeholders and appropriate
facilitators for the particular issue. It also allows the Council to
undertake a full range of activities to support its consensus building
efforts. Subsection (b)(4) authorizes the Council to engage in any
other activity that is consistent with its mission.
Paragraph (c). General Authority. Paragraph (c) grants the
Council the authority to do any and all lawful acts necessary
or desirable to carry out the objectives and purposes of this
Paragraph (d). Guidelines for Council Operations. Paragraph
(d) directs the Council to develop guidelines, as necessary,
for matters related to: (1) personal service contracts; (2)
standards for Directors, employees, and agents to avoid
conflicts of interest; (3) fundraising policies; (4) duties and
responsibilities of the Council, its Board, officers,
employees, and agents; and (5) the establishment of advisory
committees or similar working groups.
Sec. 6. Board of Directors
Paragraph (a). Vested Powers. Paragraph (a) vests the
powers of the Council in the Board of Directors unless
otherwise specified in the Act or delegated by the Board.
Paragraph (b). Appointments. Paragraph (b) provides for the
appointment of the 8 voting members of the Board, who may be
private citizens or state or local employees. Two appointments
each are given to the Speaker of the House of Representatives
and the Minority Leader of the House of Representatives, and
two appointments each are given to the Senate Majority and
Paragraph (c). Term of Office: Commencement and
Termination, Interim and Remainder Service, Limitation.
Subsection (c)(1) provides that the terms of Directors are four
years, with a limit of two consecutive terms. The initial
appointees of the Speaker and Minority Leader of the House will
have a two-year term with the possibility of serving two
additional four-year terms. This will allow for the
``staggering'' of appointments to avoid turnover of the entire
Board in any given year. Subsection (c)(2) provides that a
Board member may continue to serve until a replacement is
appointed. Subsection (c)(3) states that a Director who is
appointed to replace another Director whose term has not
expired shall be appointed to serve the remainder of that term.
Subsection (c)(4) provides that the President of the Council
will serve as a nonvoting Director of the Board.
Paragraph (d). Qualifications. Subsection (d)(1) provides
that a demonstrated interest in the mission of the Council or
expertise in consensus-building shall be considered in making
appointments to the Board of Directors. Subsection (d)(2)
precludes any person who is a federal officer or employee or a
Member of Congress from serving as a Director to avoid the
potential for conflicts such individuals might have with
matters that could be addressed by the Council.
Paragraph (e). Removal From Office. Paragraph (e) provides
that a Director may be removed at any time by the appointing
official (or his or her successor in office) or by a process to
be established in the bylaws of the Council.
Paragraph (f). Meetings; Notice in Federal Register.
Paragraph (f) requires the Board to establish bylaws governing
Subsection (f)(1) mandates that the Council shall meet at
least semi-annually with a majority of the Directors in office
constituting a quorum. Subsection (f)(2) requires that all
governing meetings of the Board be noticed in the Federal
Register and remain open to the public, subject to narrow
exceptions relating to personnel issues, litigation and matters
involving the status of individual Directors.
Paragraph (g). Compensation. Subsection (g)(1) provides
that a Director may be compensated at the daily rate payable
for a position at level IV of the Executive Schedule under
section 5315 of title 5, United States Code, for each day in
which the Director is engaged in the performance of duties of
the Council. Subsection (g)(2) makes clear that a Director may
be compensated under this paragraph if he or she notifies the
Board of an election to receive compensation. Subsection (g)(3)
states that such compensation will be available only for duties
performed after the date of this notification.
Paragraph (h). Travel Expenses. Paragraph (h) provides that
a Director may receive reasonable travel, subsistence, and
other necessary expenses while away from home or regular place
of business in the performance of duties for the Board.
Sec. 7. Officers and employees
Paragraph (a). Appointment, Compensation, and Status of
President of Council and Other Officers. Paragraph (a) requires
the Board to appoint a President to be the chief executive
officer of the Council. The President will carry out the
functions of the Council under the supervision and direction of
the Board. Subsection (a)(1) provides that the annual rate of
pay of the President may not exceed the rate payable for a
position at level II of the Executive Schedule under section
5313 of title 5, United States Code. Subsection (a)(2) permits
federal officers or employees to be detailed to the Council on
a fully reimbursable basis. There will be no impact on the
federal employment benefits and rights of such an officer or
employee during the course of the detail. Subsection (a)(3)
authorizes the President of the Council to appoint and fix the
compensation of such additional personnel as is determined
necessary, and states that neither the President nor any other
employees of the Council will be employees of the United
States. Subsection (a)(4) prohibits inurement of any Council
resources to any employee, agent, or member of the Council,
either during the life of the Council or upon dissolution, and
prohibits the Council from making loans to such persons.
Sec. 8. Procedures and records
Paragraph (a). Monitoring and Evaluation of Programs.
Paragraph (a) directs the Council to monitor and evaluate
Council programs to ensure compliance with the provisions of
this Act and all other legal requirements.
Paragraph (b). Accounts of Receipts and Disbursements;
Financial Reports. Paragraph (b) requires the Council to keep
correct and complete records of accounts, with separate and
distinct accounts of receipts and disbursement of Federal
funds. This paragraph also requires the Council's annual
financial report to specify how it used these federal funds and
to give a clear description of the full financial situation of
Paragraph (c). Minutes of Proceedings. Paragraph (c)
requires the Council to keep minutes of the proceedings of the
Board and of any committees having authority under the Board.
Paragraph (d). Record and Inspection of Required Items.
Paragraph (d) delineates some of the specific records that the
Council must maintain and make available to any Director.
Subsection (d)(1) specifies that these records include the
names and addresses of Directors, legal documents pertaining to
the Council, minutes of proceedings, documents relating to
applications and proposals or to grants or contracts issued or
received, and financial records of the Council. Subsection
(d)(2) provides that any Director or attorney of a Director may
inspect these records at any reasonable time for any proper
Paragraph (e). Audits. Paragraph (e) requires that the
accounts of the Council be audited annually in accordance with
generally accepted auditing standards by an independent
certified public accountant or independent licensed public
accountant. The person(s) conducting the audit must have full
access to all records and documents necessary to conduct the
Paragraph (f). Annual Report to Congress; Copies for
Public. Subsection (f)(1) requires the Council to provide an
annual report to the Congress and the President, within six
months after the close of the fiscal year. Subsection (f)(2)
specifies that the report must include a description of the
Council's activities for the prior year, a copy of the
independent audit conducted pursuant to paragraph (e), and a
disclosure statement indicating the source of all funds
received in the prior year and the purposes for which the funds
were contributed. Subsection (f)(3) requires that the report be
made publicly available.
Paragraph (g). GAO Review. Paragraph (g) requires that the
annual report submitted to Congress pursuant to paragraph (f)
be simultaneously submitted to the General Accounting Office
for its review.
Sec. 9. Funding
Paragraph (a). Authorization of Appropriations. Paragraph
(a) authorizes the appropriation of $2 million for FY 2003 and
such sums as are necessary for succeeding years to carry out
the purposes of this Act.
Paragraph (b). Availability. Paragraph (b) provides that
the funds authorized in paragraph (a) will remain available to
the Council until they are expended.
Paragraph (c). Investment of Funds. Paragraph (c) permits
the funds appropriated under paragraph (a) to be invested only
in instruments backed by the full faith and credit of the
United States or in a federally insured financial institution.
The interest earned on such funds may be used only for the
purposes provided under this Act.
Sec. 10. Dissolution
This section provides that upon dissolution or final
liquidation of the Council, all funds appropriated by the
United States, including any interest attributable to such
funds, shall be returned to the United States Treasury. Any
other funds held by the Council will be handled under the laws
of the District of Columbia applicable to nonprofit
VI. EVALUATION OF REGULATORY IMPACT
Paragraph 11(b)(1) of rule XXVI of the Standing Rules of
the Senate requires that each report accompanying a bill
evaluate ``the regulatory impact which would be incurred in
carrying out this bill.''
The enactment of this legislation will not have significant
VII. CBO COST ESTIMATE
Congressional Budget Office,
Washington, DC, October 16, 2002.
Hon. Joseph I. Lieberman,
Chairman, Committee on Governmental Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1651, the United
States Consensus Council Act of 2002.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Barry B. Anderson
(For Dan L. Crippen, Director).
S. 1651--United States Consensus Council Act of 2002
S. 1651 would establish the United States Consensus
Council, consisting of eight members to be appointed by the
Senate Majority and Minority Leaders and the Speaker and
Minority Leader of the House of Representatives. The council
would provide advice to the Congress on policy issues of
national importance through a collaborative process. The bill
would authorize the commission to accept and spend private
donations and would direct the General Accounting Office to
review the council's annual report. The bill would authorize
the appropriation of $2 million in 2003 and such sums as may be
necessary in subsequent fiscal years to carry out its
CBO estimates that implementing the legislation would cost
about $2 million annually, assuming appropriation of the
necessary amounts. The bill would authorize the commission to
earn interest on unspent appropriated funds and spend that
amount without further appropriation. CBO estimates that direct
spending funded by private contributions and interest earnings
would be insignificant.
S. 1651 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act and would impose no costs
on state, local, or tribal governments.
S. 1651 would not allow any business or individual to use
the term ``United States Consensus Council'' or mark of
recognition without the consent of the council. If a company or
individual is found to be using the name currently and the
council does not grant permission for such usage, then the bill
would impose a mandate on the private-sector entity. The cost
of such a mandate would be equal to the fair market value of
the name. In such an instance, the federal government would be
required to compensate the owner. A search through the Internet
and the U.S. Trademark and Patent Office database found no
other use of that name. Although such a search is not
exhaustive, CBO expects that the bill would probably not impose
a private-sector mandate.
The CBO staff contact for this estimate is Matthew
Pickford. This estimate was approved by Robert A. Sunshine,
Assistant Director for Budget Analysis.
VIII. CHANGES TO EXISTING LAW
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee notes that the
legislation is a free standing bill that will make no changes
to any existing law.