Report text available as:

  • TXT
  • PDF   (PDF provides a complete and accurate display of this text.) Tip ?

                                                       Calendar No. 709
107th Congress                                                  Report
 2d Session                      SENATE                         107-330


                              R E P O R T

                                 of the


                          UNITED STATES SENATE

                              to accompany

                                S. 1651

                         AND FOR OTHER PURPOSES


                November 4, 2002.--Ordered to be printed

  Filed under authority of the order of the Senate of October 17, 2002


               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
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
 II. Background.......................................................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




                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 
                             the following

                              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 
do pass.

                         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.

                             II. BACKGROUND

    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 
legislative process.


    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 
United States.
    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 
Minority Leaders.
    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 
its meetings.
    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 
the Council.
    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 


    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 
regulatory impact.

                         VII. CBO COST ESTIMATE

                                     U.S. Congress,
                               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.