Respect for America's Fallen Heroes Act

Mr. Speaker, I rise today to offer my unwavering support for H.R. 5037, the Respect for America's Fallen Heroes Act. I am proud to be an original cosponsor of this bill.

The rights of free speech and expression under the Constitution's First Amendment are not absolute, and there are many U.S. Supreme Court decisions interpreting and explaining the right and its limits. As Chairman Buyer explained, there are several judicial precedents which make clear that H.R. 5037 is constitutional. On April 6, the Subcommittee on Disability Assistance and Memorial Affairs, the subcommittee I chair, took testimony on this bill.

Said David Forte, Professor of Law, Cleveland-Marshall College of Law, Cleveland State University, in written testimony submitted to the Subcommittee:

``There are thus two constitutional issues to be

confronted: (1) Does the ban on ``certain'' demonstrations

meet the requirement

of First Amendment law as laid down in Supreme Court

precedents, and (2) Is the discretion lodged in the cemetery

superintendent to permit exceptions fall within an acceptable

constitutional range? I conclude that the answer to both

questions is in the affirmative and that the bill is well

within constitutional limits.

Mr. Speaker, at this time I ask unanimous consent that Mr. Forte's statement be included in the Congressional Record.

I have visited the troops in Afghanistan and Iraq several times over the years.

While always moving and inspiring experiences, one time in particular stands out. It was September 2003 and we were preparing to return to the States. After quite a wait, we were told that they were loading onto the plane the casket of Sergeant Trevor Blumberg, and we would be leaving Baghdad with his body. I have had few honors as great as that one. I am pleased to say that Mrs. Blumberg has since contacted Representative Rogers' office to express her and her husband's support for this bill.

Our Nation's veterans have made the ultimate sacrifice, and it is appalling to see and hear their military service being derided. Unfortunately, throughout the country, that is indeed what is happening and it must stop.

I want to thank Mr. Rogers, Chairman Buyer, and Mr. Reyes for all their work in crafting this legislation and their continued dedication to the men and women of our armed forces.

I would also like to recognize Mr. Paul Taylor and Ms. Hilary Funk, staff on the Judiciary. Committee's Subcommittee on the Constitution, for working so closely with my staff and me.

Mr. Speaker, I urge all my colleagues to support this bill.

Testimony of David F. Forte, Professor of Law, Cleveland-Marshall

College of Law, Cleveland State University, in Support of H.R. 5037

Before the House Committee on Veterans' Affairs, Subcommittee on

Disability Assistance and Memorial Affairs, Jeff Miller, Chairman,

April 18, 2006

I. Introduction

H.R. 5037, entitled the ``Respect for America's Fallen

Heroes Act,'' seeks to limit ``certain demonstrations'' in

cemeteries under the control of the National Cemetery

Administration or on the property of Arlington National

Cemetery. The bill defines what constitutes a demonstration

disruptive of the memorial services or funerals being held in

or within 500 feet of such cemeteries, but allows an

exception for demonstrations on cemetery grounds if

``approved by the cemetery superintendent.'' There are thus

two constitutional issues to be confronted: (1) Does the ban

on ``certain'' demonstrations meet the requirements of First

Amendment law as laid down in Supreme Court precedents, and

(2) Is the discretion lodged in the cemetery superintendent

to permit exceptions fall within an acceptable constitutional

range? I conclude that the answer to both questions is in the

affirmative and that the bill is well within constitutional

limits.

II. The Ban on Demonstrations

Demonstrations are a form of expressive conduct. In all

governmental restrictions on expressive conduct, Supreme

Court jurisprudence requires application of the O'Brien test,

United States v. O'Brien, 391 U.S. 367 (1968) or of the

``time, place, and manner'' test. Cox v. New Hampshire, 312

U.S. 569 (1941). The Court has declared that both tests have

similar standards. Clark v. Community for Creative Non-

Violence, 468 U.S. 288 (1984).

Under the O'Brien test, ``a governmental regulation is

sufficiently justified if it is within the constitutional

power of the government; if it furthers an important or

substantial governmental interest; if the governmental

interest is unrelated to the suppression of free expression;

and if the incidental restriction on alleged First Amendment

freedoms is no greater than is essential to the furtherance

of that interest.'' 391 U.S. at 376. Under the ``time, place,

and manner'' test, government regulations of expressive

conduct are valid ``provided that they are justified without

reference to the content of the regulated speech, that they

are narrowly tailored to serve a significant governmental

interest, and that they leave open alternative channels for

communication of the information.'' Clark, 468 U.S. at 293.

It is clear from the text of H.R. 5037 that the purpose of

the bill is to assure the dignity of funerals or memorial

services held in honor of our fallen dead by preventing

demonstrations that are disruptive of those ceremonies. To

that end, the bill delineates what kind of demonstrations

shall be prohibited, viz, a demonstration within five hundred

feet of a cemetery in which a funeral or memorial service is

to be held if the demonstration takes place within a time

period from 60 minutes before until 60 minutes after the

funeral or memorial service. Furthermore, the bill requires

that only those demonstrations in which a ``noise or

diversion'' is willfully made and ``that disturbs or tends to

disturb the peace or good order of the funeral service or

memorial service or ceremony'' shall be prohibited.

Maintaining cemeteries for veterans is clearly within the

constitutional power of government. It is also clear that,

under 38 U.S.C. sect. 2403, the purpose of maintaining

cemeteries ``as a tribute to our gallant dead'' is an

important or substantial governmental interest. It is

similarly evident from the text of the bill that its purpose

is to prevent conduct that is intentionally disruptive of a

funeral or memorial service without reference to the content

of the expressive conduct. The text does not ban accidental

noises present in our modern society near to many cemeteries,

such as traffic or the sounds of children playing. Nor does

it ban only demonstrations with a particular kind of message.

A demonstration connected with a labor dispute that is

disruptive of a funeral is as violative of the law as would

be an anti-war demonstration or a ``support our troops''

march. Finally, ``the incidental restriction on First

Amendment freedoms is no greater than is essential to the

furtherance'' of the interest of maintaining the dignity of a

funeral for our fallen dead. Demonstrations 60 minutes before

or 60 minutes after the ceremony are permitted. Even during

the period in which a ceremony is being held, a demonstration

beyond 500 feet of the cemetery is permitted. This is no

blanket ban at all.

The fact that H.R. 5037 prohibits disruptive demonstrations

on grounds that are not part of a national cemetery finds

support in Supreme Court precedent. The case of Grayned v.

City of Rockford, 408 U.S. 104 (1972) is directly on point.

In Grayned, the Supreme Court upheld an antinoise ordinance,

which read: ``No person, while on public or private grounds

adjacent to any building in which a school or any class

thereof is in session, shall willfully make or assist in the

making on any noise or diversion which disturbs or tends to

disturb the peace or good order of such school session or

class thereof.'' 408 U.S. at 107-08. It is axiomatic in our

legal tradition that the state may take reasonable steps to

abate a nuisance that may emanate from private property. What

H.R. 5037 does is to abate a nuisance that would disturb the

good order of a federally mandated activity in our national

cemeteries, namely, to provide memorial services and

ceremonies that are ``a tribute to our gallant dead.''

It should be noted that in Grayned, the Supreme Court held

that the antinoise ordinance was good against claims of

overbreadth or vagueness. H.R. 5037's prohibition on

``willfully making or assisting in the making of any noise or

diversion that disturbs or tends to disturb the peace or good

order of the funeral or memorial service or ceremony'' tracks

the language approved by the Court in Grayned.

Furthermore, the language of H.R. 5037 finds support in the

case of Boos v. Barry, 485 U.S. 312 (1988). In the case, the

Supreme Court reviewed a District of Columbia law that made

it unlawful to display any sign that brought a foreign

government into ``public odium'' or ``public disrepute''

within 500 feet of an embassy, and which banned

``congregating'' within 500 feet of an embassy. The Court

struck down the ban on displaying a sign critical of a

foreign government, but upheld the ban on congregating if, as

construed by the lower courts, the congregation was

``directed at a foreign embassy.'' H.R. 5037 bans only those

demonstrations within 500 feet of a cemetery that are

intentionally disruptive of ceremonies or funerals within

national cemeteries. The disruptive requirement does not need

judicial construction. It is made in the terms of the statute

and is fully supported by the decision in Boos v. Barry.

Under H.R. 5037, a person who displays ``any placard,

banner, flag, or similar device, unless the display is part

of a funeral or memorial service or ceremony,'' and such a

display causes a ``diversion that disturbs or tends to

disturb the good order of the funeral or memorial service''

is subject to the law. This prohibition is closely akin to

the focused picketing ordinance upheld by the Supreme Court

in Frisby v. Schultz, 484 U.S. 474 (1988). That ordinance

banned picketing ``before and about'' any residence. Although

in most public areas, people may picket and expostulate even

though others may object to the message, in certain areas the

functioning of the forum takes precedence, provided there are

alternative ways the protestor may express his message.

Schools are one forum whose functioning may not be disturbed

or diverted. Grayned. The home is another place. Justice

O'Connor noted that the picketers could still march through

the neighborhood to express their opposition to abortion and

abortionists. They simply could not disrupt the

``tranquility'' of a doctor's home. 484 U.S. at 484.

Similarly, in H.R. 5037, the bill seeks to protect the

tranquility and dignity of a memorial service. It allows the

picketer or demonstrator to display whatever kind of sign or

device he wishes one hour before or one hour after the

ceremony, or at any time if more than 500 feet distant from

the cemetery, even if it offends those who may be traveling

to the ceremony.

If, however, a person displays ``any placard, banner, flag,

or similar device, unless the display is part of a funeral or

memorial service or ceremony,'' and the display occurs within

a cemetery, there is no requirement in the bill that it be

part of a disruptive demonstration. But in that case, the

display does not take place in a traditional public forum,

such as a public sidewalk, but rather within a non-public

forum dedicated to honoring our veterans. In that situation,

the ban is a reasonable, and thereby a valid, restriction in

a non-public forum designed to preserve the appropriate

functioning of the forum, i.e., a national cemetery. I

discuss the law applying to non-public forums in Part III

below.

Thus, under either the O'Brien test or under the time,

place and manner test, the statute is drawn to be within

Constitutional standards.

Nonetheless, I find one phrase in the bill puzzling. Under

section (b)(2), a demonstration is defined as ``Any oration,

speech, use of sound amplification equipment or device, or

similar conduct before an assembled group of people that is

not part of a funeral or memorial service or ceremony.''

(emphasis added) It would see that a single individual with a

bullhorn who disrupts a ceremony might not be covered under

this section. Thus, I do not see the use of the phrase

``before an assembled group of people.'' In any event, with

such a phrase, the restriction on expressive conduct is even

less than would be permitted to be under the Constitution.

III. The discretion of the cemetery superintendent

It is a central canon of our First Amendment jurisprudence

that permission to engage in expressive conduct cannot be

left to the unbridled discretion of a governmental official.

City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750

(1988). Such a discretion carries with it the dangers of

prior restraint, vagueness, overbreadth, and content and

viewpoint discrimination. Section (a)(1) of H.R. 5037

prohibits demonstrations in cemeteries under the control of

the National Cemetery Administration or in Arlington National

Cemetery ``unless the demonstration has been approved by the

cemetery superintendent.'' Nonetheless, I do not believe that

this section permits unbridled discretion in the cemetery

superintendent. Rather, I think that his discretion is well-

cabined within and defined by the administrative function the

law places upon the cemetery superintendent.

A case directly on point is Griffin v. Secretary of

Veterans Affairs, 288 F.3d 1309 (Fed. Cir. 2002). Some

veterans were not permitted under federal regulations from

placing a Confederate flag at a national cemetery. Placing a

flag was interpreted as a forbidden demonstration under 38

C.F.R., sect. 1.218(a)(14). Subsection (i) declares in part,

``[A]ny service, ceremony, or demonstration, except as

authorized by the head of the facility or designee, is

prohibited.'' Petitioners asserted that the section gave

unconstitutional discretion to the administrator of the

facility.

In Griffin, the Federal Circuit Court pointed out that

cemeteries are non-public forums the regulations of which are

subject only to a reasonable basis test. However, although

the government may limit the content of expression in non-

public forums, it may not engage in viewpoint discrimination.

The question was whether the discretion given by the law to

the cemetery's administrator brought with it the danger of

viewpoint discrimination. After all, a Confederate flag

carries a different viewpoint from the Stars and Stripes.

The Federal Circuit found that the Supreme Court had

applied the viewpoint discrimination doctrine only in

traditional public forums or in designated public forums. 288

F.3d at 1321. The court zeroed in on the relevant variable in

this kind of case: ``We are obliged to examine the nature of

the forum because the restrictions in nonpublic fora may be

reasonable if they are aimed at preserving the property for

the purpose to which it is dedicated.'' 288 F.3d at 1323.

Finding that there was sufficient Supreme Court

support, citing United States v. Kokinda, 497 U.S. 720

(1990), the Federal Circuit upheld the discretion lodged

in the cemetery's administrator ``when such discretion is

necessary to preserve the function and character of the

forum.'' 288 F.3d at 1323.

The purpose of many non-public forums is normative and

preserving the function of that forum may entail restricting

opposing normative viewpoints. Schools, for example, are

nonpublic forums charged with developing students' character

for participation as well-informed and well-developed

citizens in our system of representative government. To that

end, schools may insist that students observe rules of

respect and avoid hateful or immoral language. A student with

an opposite viewpoint who fails to observe the rules of

respect and makes his point with crude language is not

protected by the First Amendment. Hazelwood School District

v. Kuhlmeier, 484 U.S. 260 (1968). Accordingly, the

superintendent of a national cemetery is charged with

maintaining the cemetery and its activities ``as a tribute to

our gallant dead.'' Under H.R. 5037 he is granted reasonable

discretion to assure that all activities within the cemetery

accord with its lawfully stated purpose. He may permit

ceremonies or demonstrations or signs or programs that accord

with such purpose and forbid those that do not. In doing so,

the restriction imposed is ``reasonable and not an effort to

suppress expression merely because public officials oppose

the speaker's view.'' 288 F.3d at 1321, citing, Cornelius v.

NAACP Legal Del & Educ. Fund, Inc., 473 U.S. 788, 800 (1985).

IV. Conclusion

H.R. 5037 is a well-crafted bill that seeks to maintain the

decorum necessary to honor our veterans and those who have

died for our freedoms and who now rest in national

cemeteries. I find that the bill's careful limitations on

disruptive demonstrations and the limited discretion it gives

to cemetery superintendents to be well with constitutional

limits.

Mr. President, I have sought recognition in these waning hours of the 109th Congress to provide a summary of the good work accomplished over the last 2 years on behalf of America's veterans, and to comment on comprehensive legislation that is now pending in the Senate. I provide this summary in my capacity as chairman of the Committee on Veterans' Affairs, a title I will soon pass on to my friend, Senator Danny Akaka of Hawaii.

Before the 109th Congress convened, I made a decision to serve as chairman of the Committee on Veterans' Affairs

for two fundamental reasons. The first and most important was that our country was at war and continues to be at war, and a nation at war, with hundreds of thousands of young men and women having spent extensive tours overseas in hostile lands, fighting for our country, deserves the full attention of the Senate. Many have died during the course of combat operations. Others have been seriously wounded. Thousands more will transition out of the military service in the coming years and will attempt to reenter the workforce or go to school under the Montgomery GI bill. There simply was no greater calling than for me to assume the leadership role to ensure our Government was effectively assisting the current generation of America's veterans and their families.

Second, I have always been nonplused, I guess, at the characterization that the Committee on Veterans' Affairs was a ``B'' committee. This characterization exists despite these facts. Mr. President, 24 million Americans have served in the military and are potentially eligible for VA-administered benefits. In addition, VA will soon have a budget over $80 billion, which is one of the largest and fastest growing budgets within Government. And finally, VA has the second largest Federal workforce of any Government agency.

Therefore, it was my goal to elevate the committee's profile and the importance of the veterans' benefits and services by embarking on a course of vigorous oversight and legislative effort and, I believe, accomplishment.

It is my humble opinion that I share the credit with 13 other members of the committee. One of them is here on the floor with me, Senator Kay Bailey Hutchison of Texas, who also served not only on the authorizing committee with me but chairs VA MilCon and has played a critical role in veterans issues. We have been diligent and active participants of the committee, and the business of this committee, in my opinion, has been extremely productive in the last 2 years.

The committee held 52 hearings during the 109th Congress. From the start, our focus was on the combat wounded, the combat deceased, and their families. We held a hearing on the difficulty that surviving spouses have in getting timely and effective, consistent information regarding their benefits following the active-duty death of their loved one.

We held several hearings on whether returned combat veterans are provided with a seamless transition--many of us have heard those words used--from active duty to civilian life. We are still working with DOD on that, to make sure it is truly seamless.

We focused on medical and vocational needs of our severely wounded. We examined the research being done within the VA to advance our understanding of various diseases and disabilities confronting veterans in the hope that advances in medical science and technology could one day improve their lives. And there is clear evidence today that that very thing is happening.

The committee was particularly active in examining VA's budget needs, and no one can argue about the high priority this Congress placed on funding the VA system.

The total VA budget will have increased from approximately $63 billion at the end of fiscal year 2004 to over $80 billion upon enactment of a fiscal year 2007 appropriations bill, an increase of 27 percent.

In addition to resources provided, this Congress has put in place a system of accountability to ensure that the appropriations provided to VA are being used to meet the needs of those who rely on the vital health care provided by VA facilities around the Nation.

By law, VA now submits quarterly reports to the Congress on its budget that contain a comparison between VA's planned expenditures and actual expenditures.

More importantly, VA is required to include quality indicators in this report, such as the percentage of primary care appointments scheduled within 30 days of a patient's desired date.

I am confident that the Congress has the mechanisms in place to know, on short order, if VA's budget needs are outpacing its resources, and is therefore equipped to take swift remedial action if necessary.

On the legislative front, the Senate has continued to do the work expected of it by the men and women we serve and represent. Let me give a quick accounting of the legislative provisions that were enacted into law during this Congress:

First S. 1234 and S. 2562. In both the first and second sessions of the Congress, cost-of-living-adjustment legislation was enacted to increase the rates of disability compensation and survivors' compensation. Benefit rates were increased by 4.1 percent for 2006 and will be increased by 3.3 percent for 2007.

Second, Traumatic Injury Protection under Servicemembers' Group Life Insurance, T-SGLI. In many instances the wives, parents, and other family members of servicemembers who are traumatically injured incur substantial financial obligations in order to spend time with their loved ones during recovery periods at military hospitals.

Under the provisions of Public Law 109-13, those traumatically wounded since the start of OIF and OEF as a result of combat wounds are eligible for financial payments which range from $25,000 to $100,000 for qualifying injuries, depending on severity. To date, more than 2.500 wounded servicemembers have received payments as a direct result of this legislation.

As of December 1, 2005, all servicemembers and Reservists insured under the Servicemembers' Group Life Insurance program are also covered under the T-SGLI benefit. The coverage extends to all qualifying injuries regardless of whether injuries are incurred as a result of combat.

Under the provisions of H.R. 3200, the maximum coverage for members of the Armed Forces and veterans of the Service Members Group Life Insurance and the Veterans Group Life Insurance benefit was increased from $250,000 to $400,000.

The bill, as enacted, also requires that spouses be notified when members insured under T-SGLI elect less than maximum coverage or designate a beneficiary other than the spouse or the children or the child.

In fiscal year 2006, the National Defense Authorization Act, H.R. 1815, under provisions of H.R. 1815 and as a result of veterans committees oversights, the Department of Defense was directed to provide customized integrated information to survivors of those killed on active duty about their future Federal benefits through an Internet Web site.

I was amazed when we started these hearings that we were still dealing with a hodgepodge of approaches of how we dealt with the surviving spouse of a lost one.

DOD was also directed to develop a uniform policy on providing casualty assistance to survivors. I would like to especially thank Senators Warner and Levin for their cooperation on that bill.

Also under H.R. 1815, a provision was adopted to prohibit military funeral honors and burial in VA national cemeteries and in Arlington National Cemetery to any person who is convicted of a Federal or State capital murder for which a sentence of death or life in prison may be imposed

We had an example of a fellow from Maryland who had killed two elderly people and was sentenced to death, died in prison, and was buried at Arlington. This provision was adopted following our committee's oversight and hearing of that double murder that I just expressed. I will speak more to my colleagues about the status of the double murder incident in a moment.

In June of 2006 President Bush signed into law S. 1235, a bill to help severely injured servicemembers in their transition from the military to their civilian lives. It authorizes VA to make grants available--ranging from $2,000 to $14,000--to assist with housing adaptations on a family member's home in which a severely disabled veteran is living.

It allows servicemembers, who have been legally determined 100 percent disabled when they separated from the military, up to 2 years from that date to apply for premium-free Servicemembers' Group Life Insurance coverage. Finally, it enables them to convert their coverage to Veterans' Group Life Insurance, or an individual plan or policy, during the same 2-year period.

As to H.R. 5037, undoubtedly most of my colleagues are aware of the fringe

group which has used its protected free speech rights to deliberately disrupt funerals of our military heroes. That is why the Senate voted unanimously to put reasonable restrictions on demonstrations at VA cemeteries and Arlington National Cemetery.

An amendment was put forward on the floor of the Senate balancing the rights of grieving families to a dignified funeral ceremony; the rights of private property owners who live near cemeteries to be free from overly intrusive Federal laws; and the rights of demonstrators to have their message heard. The amendment was accepted, the bill was passed, and it is now Federal law.

In addition to the bills already enacted into law, the House and Senate Committees on Veterans' Affairs have agreed on a comprehensive substitute amendment to S. 3421, which has cleared the House and awaits Senate action. I urge my colleagues to support this important bill.

S. 3421, the ``Veterans Benefits. Health Care, and Information Technology Act of 2006,'' contains provisions that would: enhance veterans' health, education, memorial affairs, and other benefit programs; improve VA's information technology infrastructure; authorize the construction of needed VA medical facilities; improve services for homeless veterans; remove the remains of a convicted double murderer from Arlington National Cemetery; and, I am proud to say, repeal an outdated and paternalistic law that limits the ability of veterans to hire an attorney to represent them during the VA claims process.

While a fuller accounting of the provisions of S. 3421 can be found in the Joint Explanatory Statement language accompanying the amendment text in the Congressional Record--and I ask unanimous consent that the Joint Explanatory Statement be printed in the Record along with the text of the substitute amendment to S. 3421,--I will make a few remarks about three provisions of note that I have championed.

Mr. President, currently, veterans and other claimants seeking veterans' benefits may not hire an attorney until the VA administrative proceedings have been completed--a process that often takes several years.

That law flows from a Civil War era policy intended to protect veterans from unscrupulous attorneys. That policy arose at a time-- unlike today--when attending law school was not required to become a lawyer and there was no effective professional oversight of lawyers.

In recent months, it has become abundantly clear that many veterans and their survivors want the option of hiring an attorney to help them navigate the increasingly complex VA system. In fact, the prohibition against veterans hiring attorneys is considered to be unfair and outdated by a broad spectrum of individuals and organizations, including veterans' organizations, veterans' advocates, judges, law professors, and bar associations.

For these reasons, I am very pleased that a compromise version of legislation I authored was accepted that would allow veterans to hire attorneys after a veteran files a Notice of Disagreement with VA's initial decision on their claim.

A provision of S. 3421 will enable the spouses of seriously wounded veterans to obtain educational assistance benefits sooner than they have ever been able to before.

The need for the educational assistance provision was brought to my attention by U.S. Army SFC Jeff Mittman, a young man who was blinded after an attack in Iraq and is being treated at Walter Reed Army Medical Center.

Sergeant First Class Mittman's wife would like to begin receiving educational assistance benefits from the VA while her husband undergoes treatment in order to improve her job opportunities once he is officially discharged from service, but is now prevented from doing so by law. If enacted, S. 3421 would remove that barrier.

Finally, S. 3421 would remove the cremated remains of a convicted double murderer from Arlington National Cemetery.

In the summer of 2005, we learned that the remains of a brutal murderer--Russell Wayne Wagner--were placed in the Nation's preeminent military cemetery, Arlington National Cemetery.

I was appalled to discover that the law enacted in 1997 to deny capital offenders from burial in national cemeteries did not apply to Wagner.

This was also quickly brought to my attention by the Senator from Maryland, Barbara Mikulski. We joined together in that effort. The answer was it couldn't happen, it couldn't be removed because of the law.

While we moved swiftly to close the loophole that permitted Wagner's burial in the first place, the question remained: Should his remains continue to be included among the scores of honored dead in Arlington? For me and Senator Mikulski, who joined me in this effort, the answer was ``no.''

That is why I am so pleased that S. 3421 would direct the Secretary of the Army to remove Wagner's remains from Arlington.

As I stated last summer, we must not dishonor the sacrifices made by those memorialized at our Nation's military cemeteries by including among them individuals who, through their own heinous acts, have grievously dishonored themselves because at another time in their life they were veterans.

S. 3421 is an impressive assortment of legislation. It contains the collective work of more than 44 Senators. I want to take some time to single out a few of them.

Senators Burr and Obama for their work on the homeless assistance provisions of the bill; Senators Hutchison, Feinstein, Graham, Landrieu, and Murray for their work on the construction provisions; Senators Thune, Salazar, and Burr for their work on the rural health components of the bill.

And lastly, the committee's ranking member, and a true friend of veterans, Senator Akaka.

I ask my colleagues for their vote. And I thank every Senator on the committee and in the Senate for their support in seeing this, and all of the other veterans' bills, through the Senate.

I also want to thank my House colleagues, in particular Chairman Buyer, Ranking Member Evans, and Acting Ranking Member Filner. We were able to come together in the spirit of compromise in the final hour on some key provisions, and it is a fitting way to end this Congress.

As we head into a new Congress, I want to extend my best wishes to my friend, and soon-to-be chairman, Senator Akaka. It has been a pleasure working with a Senator of his quality, and I pledge that as ranking member I will strive to emulate the kindness, cooperation, and ``aloha'' that he showed me during my time as chairman of this great committee.

I yield the floor.

Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 5037) to amend titles 38 and 18, United States Code, to prohibit certain demonstrations at cemeteries under the control of the National Cemetery Administration and at Arlington National Cemetery, and for other purposes.

Mr. Speaker, I yield myself such time as I may consume.

(Mr. BUYER asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I rise today in support of well-considered legislation that will protect the sanctity of military funerals at national cemeteries and will protect the privacy of grieving families as they bury their precious loved ones who died in the service of our country.

The first to rise, however, were the principal individuals in an organization called the Patriot Guard Riders, members of which are in Washington today. The Patriot Riders have two goals: to show respect for fallen heroes, their families and their communities; and to protect the mourning family and friends from interruptions created by any protestor or group of protestors. We owe them our deep sense of thanks and gratitude.

Mr. Speaker, this bill was jointly referred to the Committee on Judiciary, who waived consideration of the bill, and I will insert my letter requesting the waiver and Chairman Sensenbrenner's letter in the Congressional Record at this point.

House of Representatives,

Committee on Veterans' Affairs,

Washington, DC, April 25, 2006.

Hon. F. James Sensenbrenner, Jr.

Chairman, Committee on Judiciary, House of Representatives,

Washington, DC.

Dear Chairman Sensenbrenner: In order to expedite

consideration of H.R. 5037, the ``Respect for America's

Fallen Heroes Act,'' the Committee on Veterans' Affairs

requests that the Committee on the Judiciary waive

consideration of the bill. As you know, H.R. 5037 was

referred to the Committee on the Judiciary in addition to the

Committee on Veterans' Affairs. The Committee on Veterans'

Affairs acknowledges the jurisdiction of the Committee on the

Judiciary over portions of this legislation, particularly

section 3, which provides for criminal penalties under title

18 of the United States Code.

The Committee on Veterans' Affairs would not construe a

waiver of consideration as a waiver of jurisdiction by the

Committee on Judiciary over the subject matter contained in

this or similar legislation, and the Committee on Veterans'

Affairs would fully support any request by you seeking an

appointment to any House-Senate conference on this

legislation. I will place a copy of your reply letter in the

Congressional Record during consideration of the bill on the

House floor.

I very much appreciate the cooperation by you and your

staff in this matter.

Sincerely,

Steve Buyer,

Chairman.

Mr. Speaker, I would like to inform the body that the Congressional Budget Office has determined that implementing H.R. 5037 would have no significant cost to the Federal Government, and it has no intergovernmental mandate as defined by Federal law.

Mr. Speaker, I yield 4 minutes to the gentleman from Michigan (Mr. Rogers), a former captain in the United States Army and former FBI agent, who has worked closely with this legislation.

Mr. Speaker, I yield 3 minutes to the gentleman from Ohio (Mr. Chabot), the chairman of the Subcommittee on the Constitution.

Mr. Chairman, I yield 1 minute to the gentleman from Minnesota (Mr. Kennedy).

Mr. Speaker, I yield 1 minute to the gentlewoman from Michigan (Mrs. Miller).

Mr. Speaker, I yield 1 minute to the gentleman from Maryland (Mr. Bartlett).

Mr. Speaker, I yield 1 minute to the gentleman from Georgia (Mr. Gingrey).

Mr. Speaker, I yield 1\1/2\ minutes to the gentleman from Minnesota (Mr. Gutknecht).

Mr. Speaker, will the gentleman yield?

Mr. Speaker, and my colleagues, I want to thank the gentleman from Texas. It is a pleasure to have worked with you. We are colleagues on the Veterans' Affairs Committee, and I appreciate your service over the years. But you and I haven't had a chance specifically to work on a bill. And I have enjoyed my associations with you. And the cause is right. The spirit of the country is right. They want us to set the standards of dignity, and you recognized that early on and championed this cause in a bipartisan fashion. And it says a lot about who you are. I think it is because you know who you are, and that makes this is a pretty easy process. For that I want to thank the gentleman.

Mr. Reyes, you probably share the very same sense I do when you see the Patriot Guard Riders. And you know, one thing I want to comment to you, that I am proud about them, not only for taking an individual initiative, but also for their restraint.

I do recall what it was like when I came back from the first gulf war, and we buried a friend, and we stood there in our military uniforms, so proud of our service. At the same time we were grieving, and we were also moved that one of the finest of our unit was killed, and it was so powerful to all of us. And it was also yet so private and personal to all of us, given what we had just gone through on behalf of a country.

And as I reflect upon that moment, I could not imagine someone from the outside, based on some other reason or rationale and their own image, would interrupt that moment in time for us. And I think a lot of these Patriot Guard Riders also share that very same feeling I have. And I just want to compliment their restraint; because I could tell you, it would be hard, it would be really hard, if I were in the family, if I were one of the family members and this was happening, I would want to go over there and take matters into my own hands. But you know what? People haven't done that. And I am really proud of some of the families and the Patriot Guard Riders themselves.

So we are not only setting the standards of decency. We are also setting the standards for criminal conduct so everybody is well behaved. But I just want to thank the gentleman.

I am glad and pleased that you and Mr. Rogers took this initiative. But at the same time it is a sad commentary that we actually have to come to the House floor and create a law in title XVIII to do this. We shouldn't have to be doing this. So when people say you are regulating speech again, well, nobody really wants to do that. We have such respect for the first amendment. But at the same time there is a significant government interest here and that deals with our decency that you spoke of in setting those standards.

And also the case law that you cited. The Supreme Court has been very clear to give us that ability to do just that, as Mr. Chabot had also testified to before our committee.

But it is unfortunate we have to be here to do that. But we cannot permit the repugnant acts of a few to define the character of America.

Mr. Speaker, when I rose in March to tell this body of the outrageous acts committed against one grieving family in Indiana, I said that the great virtue of the American character is our compassion. It is our compassion and human decency that represents the very best of our Nation.

I had a task to perform and that was very similar to many of my colleagues in this body, and that is, when we get the word that someone from our congressional districts has died in the service of our country. So it is an easy call to make, but it is a difficult conversation to have.

And I remember calling the mother of Sergeant Ricky Jones in Kokomo, Indiana, and when I spoke with her and said, Ma'am, is there anything that I can do for you or the family, she said, You can't believe what this has been like. And I said, Well, I have two children. You are right. I can't believe that. She said, No, no, you don't understand, and then began to convey to me that, When I had heard that Ricky had died, I began receiving family and friends to the home. They would also call on the telephone. The phone rang. I thought it was going to be either family or friend, and she picked up the phone and the voice on the other end said, I am glad your son is dead. He deserved to die, and hung up the phone. She was shocked and appalled. And she recovered from that.

About an hour later the phone rings again and it is another voice on the other end of the phone that said, I am glad your son is coming home in a body bag. I am glad he is dead, and hangs up the phone.

Later, someone had egged their family home twice. And then they put trash all over their yard in the middle of the night. And all this was done while the body of Sergeant Ricky Jones was being transported back to Indiana.

I was pleased that the Deputy Secretary of Veterans Affairs, Gordon Mansfield, and the Under Secretary for Memorial Affairs, Bill Turk, came to Indiana to stand with this family, with myself, and also the Governor of Indiana was also present. But for Gordon Mansfield to have made that trip was very meaningful because Gordon Mansfield is a highly decorated combat veteran from Vietnam who is a paraplegic. He is in a wheelchair from his combat wounds. And for him to also have been so disturbed by what happened, for him to travel to Indiana to be with that family says so much about Gordon Mansfield and the leadership that he gives at the Department of Veterans Affairs.

I was pleased. It was the first time I had ever seen the Patriot Guard Riders. Hundreds of them were there. And that is why, Mr. Reyes, that I spoke about their restraint, because when you see them, you are not sure what's about to happen here. These are some pretty tough guys.

And one thing that I recall from that experience that was very intriguing was that many of them were also Vietnam veterans. Not all of them were Vietnam veterans, and not all of them were even veterans. Some of them were not. They are patriots.

And Sergeant Ricky Jones is the son of an Air Force Vietnam veteran; so these Vietnam era veterans, they know exactly what it was like when they came home.

Mr. Speaker, I ask unanimous consent for an additional 5 minutes.

They know exactly what it was like when they came home, and they were not going to permit this to occur to their son or daughter; but they were going to set those standards. And so for that reason, and many others, I am so proud of the Patriot Guard Riders.

We have before us an opportunity to make a clear expression of that compassion and decency on behalf of those who are passing their darkest hours and on behalf of all Americans who would give them peace during that difficult journey.

Mr. Speaker, I would like to thank the chief sponsors of this bill, Mr. Rogers of Michigan, Silvestre Reyes of Texas, and Jeff Miller of Florida. Together they have done their due diligence to ensure that the legislation will withstand any judicial scrutiny.

I would like to thank Kingston Smith and Mary Ellen McCarthy, counsel of the Veterans' Affairs Committee; Paige McManus of the Veterans' Affairs Committee for their work on the bill; as well as Andy Kaiser of Congressman Rogers' staff.

I would also like to thank, of the Judiciary Committee staff: Paul Taylor, Hillary Funk and Mike Volkov.

Mr. Speaker, I urge my colleagues to unanimously support H.R. 5037.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I would like to thank Congressman Mike Rogers specifically for his leadership in introducing H.R. 5037, the Respect for America's Fallen

Heroes Act. I would also like to thank House Veterans' Affairs Committee Chairman Buyer and Ranking Member Lane Evans for their strong support and for helping bring this legislation to the House floor.

Today, I was scheduled to be in my congressional district in El Paso, Texas, to participate in a Medicare prescription drug conference, which I helped to organize, so that our seniors would be provided the latest information on Medicare part D.

Mr. Speaker, while I would have liked to have been able to attend that conference, this issue is just as important, and I am proud to be here today and serve as the lead Democrat cosponsor of this bill, which has gained, by the way, Mr. Speaker, very strong bipartisan support, including the entire House Democratic leadership.

I know that all of us agree that our servicemembers who have made the ultimate sacrifice while serving their country deserve to be laid to rest with respect and dignity. The families of these courageous men and women also deserve funerals that allow them to say good-bye to their loved ones and mourn their loss in that same peace and dignity. Organized protests have disrupted the sanctity of these funerals that have been conducted throughout the United States for servicemembers who have been killed while serving in our current military operations. Some protestors have disrupted these funerals with shouts and signs that read, ``Thank God for IEDs'' and ``Thank God for Dead Soldiers.''

In my congressional district of El Paso, our community has mourned the loss of 20 servicemembers who have made this ultimate sacrifice while serving our country in Iraq and Afghanistan.

As a Vietnam combat veteran and member of the House Veterans' Affairs and House Armed Services Committees, I knew I had to do my part to ensure that our Nation's heroes are given the burial that they deserve.

To that end, the respect for America's Fallen Heroes Act would, first, prohibit all demonstrations during the 60 minutes prior to and after funerals taking place at Department of Veterans Affairs national cemeteries or the Department of the Army's Arlington National Cemetery.

Second, impose 500-foot restriction on demonstrations near national cemeteries and Arlington National Cemetery during the funeral and for a brief period before and after the funeral to allow mourners to enter and leave that cemetery in peace and dignity.

Third, allow for civil infraction for violations, including monetary fines and/or jail time of 6 months to a year, as consistent with authority granted to the Secretary of Veterans Affairs to maintain order in national cemeteries under current regulations.

Fourth, express the sense of Congress that all States should enact similar restrictions for State and private cemeteries, as well as funeral homes.

Mr. Speaker, this bill is narrowly tailored to protect military families at the sacred time from verbal attacks, while protecting our freedom of speech at the same time. Furthermore, provisions in this legislation are in line with judicial precedents specific to time, place and manner of demonstration.

In Griffin v. Secretary of Veterans Affairs, the United States Supreme Court upheld the constitutionality of existing regulations that prohibit demonstrations on property under the control of the National Cemetery Administration. The Supreme Court held: ``All visitors are expected to observe proper standards of decorum and decency while on VA property. Toward this end, any service, ceremony, or demonstration except as authorized by the head of the facility or his designee, is prohibited.''

As mentioned earlier, our bill is limited to Federal land under the control of the Department of Veterans Affairs and the Department of the Army's Arlington National Cemetery.

Furthermore, Mr. Speaker, in Grayned v. City of Rockford, the Supreme Court held that the Secretary of Veterans Affairs maintains very broad discretion to implement regulations to prohibit demonstrations. The Court stated: ``Because the judgment necessary to ensure that cemeteries remain `sacred to honor and memory of those interred or memorialized there' may defy objective description and may vary with individual circumstances, we conclude that the discretion vested in VA administrators is reasonable in light of the characteristic nature and function of our national cemeteries.''

Mr. Speaker, this legislation is narrowly drawn to allow the families and friends of our fallen heroes to lay their loved ones to rest in peace and dignity. The restriction on freedom of speech is content neutral.

The restriction is limited in time, manner and place to balance the constitutionally protected rights of law-abiding speakers against the legitimate competing interests of unwilling listeners who would otherwise be distracted from an important social objective, the dignified burial of our honored dead.

So with that, Mr. Speaker, in a few weeks, our Nation will come together to remember and honor our servicemembers who have made the ultimate sacrifice while in service to our country. I ask all my colleagues to join me, to join us, in honoring our fallen servicemembers by voting in favor of H.R. 5037.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 4 minutes to the gentleman from California (Mr. Baca) who knows the pride of wearing America's military uniform, an Army veteran.

(Mr. BACA asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield myself such time as I may consume to read into the Record a statement from our minority leader, Ms. Pelosi.

``I urge all of my colleagues to vote today for H.R. 5037, the Respect for America's Fallen Heroes Act. I am proud to be a cosponsor of this bipartisan legislation that will ensure grieving military families are protected from protesters spewing a message of hatred. For our men and women in uniform who have made the ultimate sacrifice for our country, and for their families, we must act today to ensure that they receive the respect and the moments of solemnity that they have earned and deserve.

``No Americans have stood stronger and braver for our Nation than those who have served in our Armed Forces. Our soldiers have courageously answered when called, gone when ordered, and defended our Nation with great honor. Their noble service reminds us of our mission as a nation, to build a future worthy of their courage and sacrifice.

``Americans may debate and disagree about foreign and domestic policy. This is the essence of our democracy. But when it comes to our military men and women, America must stand united and honor them as the heroes that they are.''

Minority Leader Nancy Pelosi.

Mr. Speaker, I continue to reserve the balance of my time.

Mr. Speaker, I have no further requests for time, so I will now close and then yield back the time.

Mr. Speaker, this afternoon, all around the country they have seen Members of Congress come together to stand up for our men and women in uniform and for their families. I think

the message is clear that we want those that have made the ultimate sacrifice, and those that are laying them to rest, to have the opportunity to do so with peace and dignity. So I am proud to be here, and I am proud to work with my colleagues and thank them for their support in bringing this to the floor this afternoon.

I yield to the gentleman from Indiana.

Thank you, Mr. Chairman. I really equally appreciate the opportunity to work with you because we know, as veterans, the sacrifices that men and women make on behalf of this country and their families, and so it has been a privilege to be able to work with you and my colleague, Mike Rogers, who also has been a leader on this very important issue for our country and for our country's military.

Absolutely. And I also would make two observations. First, the great restraint that they are showing shows the great respect that we have as a Nation of laws because while we may disagree with the message, we don't disagree that they have a right to deliver it. It is just not appropriate. And somewhere along the line they didn't learn the lesson that they should not intrude on somebody's private time to grieve and to be at peace, especially for their loved ones who have just sacrificed everything for their country.

Yesterday morning I had the opportunity to be with some of our military troops at Fort Bliss in my district. And I had several of them come to me and very privately, because, you know, our men and women in uniform are that way. They are courageous, they are professional. They are top-notch, but they are also very private. And in a private way they thanked me and said, please convey to all your colleagues in Congress our deep appreciation that we know that if something happens to us, our families will be taken care of, and specifically referred to this legislation and the peace of mind that they have, and they wanted us to convey that message.

I agree with you, Mr. Chairman.

Mr. Speaker, I yield back the balance of my time.

Mr. President, I commend the distinguished chairman of the Committee on Veterans' Affairs. Senator Craig has done an outstanding job of making sure the laws that weren't working, where we were not doing what we should be doing to help our veterans, were changed.

He has worked a long time on the bill now coming to its final passage--finally. He has been working on it for 2 years, that I am aware. He has done a terrific job. There is a lot of authorization that is essential to go forward next year on appropriations.

I appreciate the work of the Senator. He is retiring as chairman of the Committee on Veterans' Affairs and going to ranking member. I know his working relationship with the new chairman is such that we will continue to see progress in this area.

military construction appropriations

I will talk about the continuing resolution being passed by the House in a few hours that will be sent to the Senate. We will send that bill to the President to meet the midnight deadline so Government can continue to function.

I am talking tonight about this bill with very mixed feelings because I am chairman of the Appropriations Subcommittee on Military Construction, Veterans' Affairs and Related Agencies, and I wanted to pass the full bill, the appropriations for military construction, and I wanted to make sure we covered our veterans' needs. It is an important subcommittee, of which I have served as chairman these last 2 years. I have worked with my ranking member, Senator Feinstein, to assure we had the funding we needed. Senator Feinstein and I were ready to go on our bill. It passed in September. It is a bill that passed unanimously in the Senate. I know everyone agreed we had

covered the bases that need to be covered to do what is right for our military--active duty and the veterans--who have served our country in the past.

Unfortunately, our full bill is not going to pass. It is not going to pass because, first, it was held up in the Senate for appointing conferees, held up by a few Senators who thwarted the majority. I was very disappointed we lost those weeks. Our Appropriations Committee chairman Thad Cochran tried, as I, to pry the bill out so we could go to conference and work with the House.

Finally, this week, through the leadership of Senator Frist and Senator Stevens from Alaska, the chairman of the Appropriations Subcommittee on Defense, we were able to alleviate all of the concerns raised and get the bill to conference.

Then, unfortunately, the members of the House committee had determined we did not have enough time to conference the bill. I think we did have enough time. We had the time to do all of the construction that should be started right now. However, that is not going to happen.

I would not have allowed this bill to go forward, and I would be speaking against it right now if we did not have a provision in the House-passed continuing resolution that will give budget transfer authority to the Department of Veterans Affairs so that there will be no medical need, no service need, no payment to any veteran that will not be made before this continuing resolution runs out.

If that provision had not been added in the bill, we would not be passing this bill tonight because I would be talking all night to keep it from passing.

I called the Secretary of Veterans Affairs this afternoon, and I asked him if he could assure me that there would be enough money in the accounts from which they could transfer to assure that all of the medical needs, including surges in medical needs, would be able to be given. The Secretary assured me that is the case. The Secretary said they had enough surplus money, enough rainy day fund money, and enough money in the other accounts that they would not hurt the other accounts and they would be able to transfer. He did say that by the time we got to February 15, if we didn't have a full bill, they would be beginning to run into trouble. He gave me his word--and I know his word is good-- that if they see some shortfall that would start happening before February 15, and if there is no bill, he would call me immediately, and we would begin to work on a supplemental approach.

I am certainly going to trust his word. Secretary Nicholson has been a man of his word throughout these years I have worked with him. He is a veteran himself, a distinguished veteran. He knows the veterans issues. He cares about veterans. He will call, as he did last year when he saw a looming shortfall and he asked for help and we gave him the help to assure the veterans' needs would be met. We are going to cover it, and we are going to do it in a way that will assure that the medical care is given.

I have to say, I am disappointed we are going to adjourn without completing the full bill, without completing the military construction so it can start right away, without completing the appropriations and the priorities that we are putting in the next year for veterans. I know they will not suffer in any way because Secretary Nicholson assured me of that.

I will be watching. I will be staying on top of the VA's financial situation throughout this period that the continuing resolution is going to run, to the middle of February. If a problem arises, I will not stop advocating for the supplemental appropriation that will be necessary to assure we have the funding we need.

We will work together in this Congress to assure that the men and women who are protecting our freedom, as we speak today, get the quality of life they deserve. We will continue to work together to assure that the veterans who have served our country, who have answered the call of our country, are given everything to which they are entitled and which we owe them.

I am going to be the ranking member of this subcommittee next year, having served as chairman for 2 years with a wonderful ranking member, Senator Feinstein. It has been pure joy. She has a wonderful staff. We have never had a disagreement that couldn't be worked out. We have made sure the priorities, which are the same for both of us, have been met. I will be a loyal ranking member, and I hope the new chairman will have the same relationship and the same overall goal for Military Construction and Veterans Affairs that Senator Feinstein and I have had. I believe he will.

I am going to vote for the continuing resolution. However, I could not be more disappointed that we did not pass the full appropriations bill for Military Construction and Veterans Affairs. I know the veterans will be taken care of, and I know the military construction will begin with the new starts a couple of months late. We will get those projects done with that small delay. I am going to make it my priority to assure that happens.

Senator Stevens has come to the Senate. I want to say, in addition to Senator Cochran, Senator Stevens and Senator Inouye have been the advocates for our military throughout the time I have been in the Senate. I am honored to be a member of the Appropriations Subcommittee on Defense. I know those two leaders work together, as Senator Feinstein and I do, and that is with one goal: to make sure the military, who are in harm's way, who are fighting so we may speak freely in this Chamber, who are fighting for our children and grandchildren to have the freedom we enjoy and that has been given to us by generations past, will have the opportunities they deserve, and that is the quality of life that we can give them.

I thank the Senate for coming to the end with this continuing resolution. I will support it.

I yield the floor.

Mr. President, I would just like to clarify, with the Senator from Alaska on this subject, that the Senate did act. The Senate did pass our bill, and we did appoint conferees, and it was a lack of willingness on the part of the House to have conferees meet with the Senate. His disappointment is the same as mine.

I am going to start working on January 4, when we are sworn in to the new Congress. And I hope we can take the bill that has been passed unanimously by the Senate and work through the appropriations process and pass this bill before the continuing resolution is ended on February 15. We do not have to wait until February 15. And once the committee is constituted, and we have a chairman and a ranking member, I will be the ranking member, and I will work with the chairman. And I hope we can pass this bill because it is in very good order and it was unanimously supported by the Senate. And I think we are pretty close to what the House passed. I think, with a strong will, we will be able to come in before February 15 and start those projects about which the Senator from Alaska just spoke.

So I will look forward to working with him in the new year, both for Defense appropriations and for this Military Construction bill and the Veterans Affairs bill and the military quality of life that is in the bill that we passed in the Senate earlier this year.

I thank the Senator.