Floor Statements

Mr. Speaker, it was with great sadness that I learned of the passing of Mrs. Rosa Parks on October 24, 2005. I rise today along with my colleagues to celebrate and remember the life of a remarkable woman. I know that I speak for my colleagues here today when I say that America has lost one of its greatest citizens.

Mrs. Rosa Parks became one the Nation's first heroes of the Civil Rights Movement. Her refusal to give up her seat on a Montgomery Alabama bus solely because of her race sparked a result that no one could have predicted. The 381-day boycott of the Montgomery Alabama bus system and Mrs. Parks' court case were the first nationally recognized battles of the Civil Rights Movement. This movement eventually brought about legislation to end segregation in public accommodations, to secure the voting rights of all citizens, and to eliminate discriminatory housing practices, effectively changing the face of American society forever.

Although Mrs. Parks' actions were pivotal in creating laws, her actions also galvanized public support for the equal treatment of African Americans. It's important to remember that Mrs. Parks' actions did not exist in a vacuum. Less than a year had passed since the grisly lynching death of Emmett Till in Mississippi. Violence was a constant threat to anyone, black or white, who spoke out against the status quo. Mrs. Parks' actions resulted in death threats against her and her husband, threats which caused her to leave Alabama. The fact that people could harbor such hatred against Mrs. Parks solely for her desire to be treated as an equal person exposed to much of the country the cruel and ignorant practices of Jim Crow. The images from the fight for civil rights filled television screens throughout the world and were central in changing public opinions.

I had the honor and pleasure to meet Mrs. Parks when I was a fifth grade student in the late 1950's. She worked at Hampton Institute, now Hampton University, with my grandmother at the Holly Tree Inn. After leaving Hampton, she moved to Detroit, Michigan where she found work as a seamstress. In 1965, she went on to serve in the office of our distinguished colleague, the gentleman from Michigan, Mr. Conyers. Her 23 years of service to him and to this body are also worthy of commendation.

I want to express my condolences to the Parks family. Rosa Parks' act of non-violent resistance showed the world the power of one person in the face of injustice. Her name rightly belongs in the pantheon of individuals who have put the civil rights of all above their own personal safety. We have lost a national treasure.

Mr. Speaker, the gentleman indicated that last year was the third largest deficit in the history of the United States. When were the other two?

Mr. Speaker, I thank the gentleman for pointing that out. Sometimes it is helpful to puts these numbers in perspective. Is it not true that the military budget on an annual basis is approximately $400 billion?

So the debt service in 2015 is going to rival the entire military budget?

And you get absolutely nothing for interest on the national debt. It is money down the drain. You do not get the first rifle. You do not get the first schoolbook. You do not get any health care. You do not get anything for interest on the national debt.

Mr. Speaker, I would point out, and I appreciate the gentleman bringing this to our attention, that when the Committee on the Budget instructed the Committee on Education and the Workforce to cut mandatory spending by those billions of dollars, there were only a couple of programs in the education jurisdiction that has mandatory spending. One is student loans, and then school lunches, and, to a little minor extent, job training. Those are the only programs we could cut to accommodate that instruction that the Committee on the Budget gave.

When you start talking about balancing the budget, and we say balancing the budget on the backs of those that actually need the help, going after student loans, when student loans right now and when assistance for higher education is at an all-

time low, 20 or 30 years ago a Pell grant would cover about 85 percent of the cost of going to a public college. Now it is about 30 percent, and the rest you have to make up with student loans. We are cutting the student loan subsidies, which means that the students could end up paying thousands of dollars more for their education than they do now. That is because we are not paying for Katrina. We are paying for the tax cuts, and some of these tax cuts are about as mean-spirited in terms of priorities as you can imagine.

We call them tax cuts for the wealthy. People say, oh, no, no, it is not tax cuts for the wealthy. The gentleman from South Carolina (Mr. Spratt) is familiar with the tax cut that had not even gone into effect yet but will go into effect next year.

Two hundred billion dollars, 5-year cost, to implement the two tax cuts that address the personal exemption and standard deduction phase- in. We have a chart that shows who gets the benefit of this $200 billion. If you make under $75,000 a year, you do not get anything; $75,000 to $100,000, on average you will get $1.00; $100,000 to $200,000 on average will get $25, there is a bar down there, you just cannot see it, in terms of what you might get, but $25; $200,000 to $500,000, about 500 and some dollars on average; $500,000 to $1 million, over $4,000; and over $1 million, on average you will be getting $19,000. That is how we distribute 5-year costs, $200 billion, and rather than let us not make this go into effect and have the $200 billion go to deficit reduction.

Mr. Speaker, $200 billion, and instead, we are going after student loans. We are going after food stamps. We are going after Medicaid. This is not something new, somebody taking something somebody already has. This had not even gone into effect yet, where the millionaires get $19,000. Everybody making less than $75,000 gets nothing; $75,000 to $100,000, you get $1. You cannot even see on this chart what you get until you get up around $200,000 in income. So, when we talk about tax cuts for the wealthy, this is what we are talking about, $200,000.

You talked about paying for Katrina and what that does to our fiscal situation. This chart shows the annual deficit as you have outlined, if we pay for Katrina and if we do not pay for Katrina, and the solid line shows what the projections are, and the dotted line is if we borrow money and do not pay for Katrina how much more deficit there would be.

This is obviously a blip on the screen because it shows that there is a 1-year deterioration in the budget, but then it goes back. You can hardly tell a difference in the lines later on. It does not make any difference at all later on what we are doing to Katrina.

When this administration came in, there was a projected over $5 trillion surplus coming in, and by the time they finish, we are looking at in excess of $3 trillion in deficit for the same 10 years, a $9 trillion swing, $200 billion for Katrina, which is the estimated total cost. That is .2. Nobody said anything about the $9 trillion, and all of the sudden, as you have suggested, they are going to jump up and try to be fiscally conservative by making people cut student loans and food stamps and Medicaid to pay for the .2, which has zero to do with the long-term deterioration in the budget to begin with.

I appreciate your pointing this out to everyone, that the Katrina cost is virtually negligible compared to all of the other damage done to this budget.

Mr. Speaker, I would say if you talk about student loans and helping student loans, if you cut back on the student loan program, somebody has to pick up that weight. The students who are affected by this will be paying thousands of dollars, $5,000 and $6,000 more, for their college education than they would have had we not gone after the student loan program to pay for the tax cuts.

The simple bottom line is if you take money out of the student loan program, somebody's going to pay it. It is the students, and it is thousands of dollars more per student.

The Committee on Education and the Workforce has essentially three programs they can get the money from: student loans, school lunches, and, to a small extent, job training programs. That is about it.

So when you have billions of dollars coming out of those programs, obviously the students who are borrowing money, the students who eat lunches at school and possibly job training. The job training money is so small that you could wipe the whole program out and still not come up to the billion of dollars you need to reconcile the instruction from the Committee on the Budget. Basically it is student loans and school lunches.

In order to fund tax cuts, in this case as we have shown primarily for the wealthy, and as you have indicated, had we done nothing with the budget, had we not passed the budget, had we not made any changes, just let the budget go on as it usually does without the changes, the bottom line would be over $100 billion better off if we had done nothing.

Instead we have cut taxes, those well over $100 billion worth coming up next year, and to make up for some of it, we are going after student loans, school lunches, and other committees and child support payments, facilitating those. We are cutting back on those support services, cutting back on Medicaid and other necessary food stamps.

The kinds of services that Katrina victims would actually need, that is what we are cutting back on to fund not the cost of Katrina, the cost of the tax cuts, because the cuts we are making have not even covered the tax cuts yet. So obviously we are not doing anything in term of the ravages of the hurricanes.

The bottom line is you get it from the students. They will be paying more. Thousands of dollars each on average for student loans, they will have to pay. It is the only way to get it. If you cut the subsidy, somebody's got to pick it up, and it is the students.

We also try to make up for a little bit of it by attacking pensions, those who have pensions in the Pension Guaranty Fund, come up with a little money by adding some fees on to that.

But in terms of trying to meet the requirement of the Committee on the Budget to try to get this thing closer in terms of deficit, student loans and school lunches, it just seems to be an inappropriate priority, and we can certainly do better than that.

Madam Speaker, let me remind Members, this is the kind of tax cut that is under the jurisdiction of the Committee on Ways and Means. As this chart shows, it is $200 billion primarily for the wealthy. If a family makes less than $200,000, you can hardly see what you would get. Instead of going after this tax cut that has not even gone into effect yet, they attack unemployment compensation, SSI, and the child support enforcement services. Those are the kinds of things that make a difference in people's lives.

When I was in the State senate, one of the things that we kept having problems with in child support enforcement was the interstate cases. Virginia could take care of its own cases. We put the resources in to find the responsible parent. We would get the wage withholding. We could take care of the case if it was in Virginia. But once it went out of State, we had problems. Those are the kinds of cases that the child support enforcement from the Federal Government can help.

That is what you are eliminating, and those are the kinds of things that make a difference in people's lives because parents need that child support to help raise the children. If you do not get it, it is much more difficult to raise the children. You have financial stress. We are cutting back on that kind of assistance to people in order to fund the tax cuts, many of which go primarily to the wealthy.

Madam Speaker, as we look at that chart where each year under the Clinton administration was better than the one before, and we went into such surplus that when Chairman Greenspan was testifying before Congress in 2001, he was answering questions like, What happens if we pay off the entire national debt? What is going to happen to the bond market? What is going to happen to interest rates?

We had at that point projected we would be able to pay off the national debt held by the public by 2008. By 2013, if we were continuing to run surpluses, we would be able to put all of the money back in the trust funds. Members talk about Social Security being empty. Social Security would have had gotten all its money back, and there would be assets in the trust fund, not the IOUs we have now.

But in 2001, Congress passed massive tax cuts, President Bush signed them, and we see what happened.

Now, Members will remember in 1995 when the Republicans took over the United States House and Senate, they also passed massive tax cuts. What happened to those tax cuts in 1995? What did President Clinton do to those tax cuts?

And Republicans threatened to close down the government. In fact, they closed down the government, but President Clinton refused to sign those massive tax cuts we could not afford. Year by year he held that veto pen out to make sure that we did not do anything irresponsible, and we ran up those surpluses.

The first thing this President did was sign those massive tax cuts that we could not afford, and we see what happened.

I think it would be helpful if the gentleman would explain what PAYGO means to know how we could maintain that fiscal discipline.

Madam Speaker, with PAYGO, that means if you want to have a new spending program, you have to cut spending somewhere else or raise taxes to pay for it. If you have a new tax cut, either you have to cut spending that same amount or raise some other taxes, but you have to pay as you go. What happens under that is if you have natural growth, you can do better each year on the deficit. But what happened in 2001 with PAYGO?

Therefore, when the tax cuts were offered, they did not have to be paid for. So the question was not how would you like some new tax cuts with these spending cuts, or how would you like these tax cuts with increased taxes here to pay for them; the question before us was: How would you like some tax cuts? Congress said, well, I think I will.

At the same time, how would you like some more spending increases? You do not have to raise taxes to pay for them and/or cut other spending, so the question before you is how would you like to spend more money? Well, I think I will. This chart shows what happened.

Madam Speaker, I just want to emphasize the fact that all of these cuts in spending today are not due and have virtually nothing to do with Hurricane Katrina. They are there whether Hurricane Katrina spending happened or not.

Madam Speaker, as this chart shows, we could have done better, and we did do better when President Clinton vetoed the irresponsible budgets and there were enough Democrats in Congress to sustain those vetoes. And if we look at that chart, every year is better than the one before. And when this administration came in in 2001, they inherited a 10-year $5 trillion surplus, $5 trillion surplus; and now it looks like those same 10 years will run into a deficit of over $3 trillion, a total of over $9 trillion.

In the wrong direction.

Mr. Speaker, once again we find ourselves here debating the scope of the Second Amendment and whether its purpose is to protect the sanctity of state militias or provide a fundamental right to individuals, irrespective of their relationship to state militias, to possess firearms. While this bill cites in its findings that the Second Amendment protects the right of individuals to bear arms, there has been a definitive resolution by the courts of just what right the Second Amendment protects.

In United States v. Miller, the Supreme Court wrote in 1939 that the ``obvious purpose'' of the right to keep and bear arms in the Second Amendment was ``to assure the continuation and render possible the effectiveness'' of state militias and that the guarantee of that right ``must be interpreted and applied with that end in view.'' This language was a clear indication that the Second Amendment right to ``bear arms'' guarantees the right of the people to maintain effective state militias, but does not provide any type of individual right to own or possess weapons.

Mr. Speaker, for more than sixty years following the Supreme Court's decision in Miller, there was little judicial debate regarding the scope of the Second amendment. In fact, virtually every federal appeals court has decided this issue and only one, the Fifth Circuit in United States v. Emerson, has endorsed the individual rights view. Since the Emerson opinion in 2001--which was joined by only two circuit court judges and actually upheld the gun law at issue--the individual rights view has been rejected by the Fourth, Sixth, Seventh, Ninth and Tenth Circuits. The First, Second, Third and Eighth Circuits also have issued definitive rulings rejecting the individual rights view.

The First Circuit held that the second amendment applies only to firearms having a ``reasonable relationship to the preservation or efficiency of a well-regulated militia.'' 1939 Miller case.

In 1984, in the Second Circuit, the court cited Miller for the proposition that the right to possess a gun was ``not a fundamental right'' because the Second Amendment did not guarantee the right to keep and bear a weapon unless the evidence showed the firearm had some ``reasonable relationship'' to the preservation or efficiency of a well regulated militia--U.S. v. Toner.

In 1996, in the Third Circuit, defendant's possession of machine guns did not have a connection with militia-related activity required for second amendment protections to apply--U.S. v. Rybar.

The Fourth Circuit, a 1995 case, stated that courts have consistently held that the second amendment only confers a collective right of keeping and bearing arms which bear a reasonable relationship to the preservation or efficiency of a well-regulated militia--Love v. Pepersack.

The Sixth Circuit, in 2000, held that the lower courts have uniformly held that the second amendment preserves a collective rather than an individual right--U.S. v. Napier.

The Seventh Circuit, the second amendment establishes no right to possess a firearm apart from the role possession of the gun might play in maintaining a State militia. That is a 1999 case--Gillespie v. City of Indianapolis.

The Eighth Circuit stated that the purpose of the second amendment is to restrain the Federal Government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia. That is a 1992 case--U.S. v. Hale.

The Ninth Circuit in 2003 stated that it is this collective rights model which provides the best interpretation of the second amendment-- Silveira v. Lockyer.

The Tenth Circuit, a 1977 case, to apply the amendment so as to guarantee an appellant's right to keep an unregistered firearm which has not been shown to have any connection with the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or policy--U.S. v. Oakes.

The Eleventh Circuit, a 1997 case concerning motivating the creation of the second amendment, convinces us that the amendment was intended to protect only the use or protection of weapons reasonably related to a militia actively maintained and trained by the States--U.S. v. Wright. I believe these cases are evidence of the remarkable degree of judicial consensus on the meaning of the Second Amendment.

Mr. Speaker, I suggest that if my colleagues across the aisle want to amend the Constitution, they should do it by amendment rather than attempting to do it through findings.

Mr, Speaker, this bill also contains a provision requiring a conviction before a defendant who has violated 18 U.S.C. 924(h) can be sued. Requiring a conviction before an offender can be sued for the civil consequences of his unlawful acts would constitute an extraordinary change in traditional civil liability standards. The public will remember that O.J. Simpson was found civilly liable for damages, even though he had been acquitted in criminal court. Moreover, such a requirement would create absurd results, based on what a prosecutor may decide to do in a particular case, and when he decides to do it. The prosecutor may choose not to prosecute a particular case at all, for various reasons. This would preclude a claim, regardless of how egregious the injuries or clear the liability. Or, even where the case is prosecuted, the prosecutor may decide to plea bargain by allowing a defendant who has unlawfully transferred a number guns to plead guilty to one transfer and drop the remainder. It would be absurd to allow one case to go forward and not others, depending on which case was technically pleaded. Of course, it is always possible that a case will be thrown out because of an unlawful search or seizure because of a coerced confession, or simply because the prosecutor is unable to obtain a conviction. And even where there is a conviction, the timing of the conviction, alone, may be dispositive of the claim, because there is nothing in the bill or the law which tolls the statute of limitations on a civil claim, pending a conviction. And there is nothing in the bill to deal with what happens if the conviction is reversed or appeal.

Absent a conviction, the unlawful transfer still must be proven in order to pursue the case. This should be protection enough for someone who causes another harm by criminal conduct.

Mr. Speaker, this bill is an unprecedented attack on the due process rights of victims injured by the misconduct of an industry that seeks to escape the legal rules that govern the rest of us and I urge my colleagues to oppose this bill.

I submit the following list of cases supporting collective view for the Record.

A Sampling of Court Decisions that Support the Militia

Interpretation of the Second Amendment from The Legal Action

Project.

u.S. SUPREME COURT

U.S. v. Miller, 307 U.S. 174 (1939).

Lewis v. United States, 445 U.S. 55 (1980).

Madam Chairman, I thank the gentleman for yielding me time.

Madam Chairman, in addition to the violation of principles of federalism outlined by my colleague from North Carolina, this piece of legislation is another piece in which we are taking upon ourselves the right to try a case in the legislative branch instead of respecting the separation of powers by allowing cases to be tried in the judicial branch where they belong.

Instead of respecting separation of powers and honoring the rule of law and standing behind the principle that laws should be applied equally to all, we are once again giving special treatment to special cases.

The majority in Congress has apparently already decided the proper outcome of these cases and is adjusting the law accordingly just for these cases, rather than trusting our laws and our courts to hear evidence from both sides and decide the cases on their merits. If these are losing cases, then let the judicial process make that decision. Even if they are frivolous cases, the judicial branch has ways to sanction people for bringing frivolous cases; but once again, special interests are receiving, in these cases, special treatment.

Instead of having to go through the courts like everybody else, where they do not know the outcome of the case until evidence is presented and the law is applied, these defendants will get to try their cases in the legislative branch, where popularity and politics prevail. Even financial contributions are allowed.

Meanwhile, everyone else without special privileges is stuck trying their cases in the courts, where they have an unbiased judge and jury, instead of favorable politicians, and they are stuck with the same law that applies to everybody else.

This is not the only recent example of special treatment. Just a few months ago, we changed the law for Terri Schiavo because her parents knew how to reach someone in Congress; and we ignored the multitude of judicial decisions that had already been decided, and we changed the law for that case, not cases like that, just for that case.

A few years ago, in a child custody case in the Washington, DC, area that case was decided by special legislative language in a transportation appropriations bill. The Committee on Education and the Workforce likewise considered a case on appeal between the Department of Labor and a bank and voted to retroactively change the law to fix the result on behalf of the bank. Later today, as my colleague from North Carolina has pointed out, the House will probably pass legislation to fix the result in firearms legislation so that the firearms industry will get to try their cases and their issues in the legislative branch, rather than being stuck with the law that applies to everybody else.

Mr. Chairman, trying cases in the legislative branch is bad policy. We should honor the rule of law and apply the law in all cases. There will always be special interests, but we should not make special laws for those who can get to a Congressman to introduce a bill on their behalf. Let us honor and respect the rule of law to be applied equally to all and reject this legislation.

Mr. Chairman, I offer an amendment.

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

Mr. Chairman, we have apparently decided to try these kinds of cases on the floor of the House where politics and popularity will be considered, even financial contributions will be allowed, rather than have those cases and special interests relegated to the judicial branch where they will be facing unbiased judges and juries and relegated to the same laws that apply to everybody else. But if we are going to try the cases, we ought to at least limit the impact of the bill to the fast food rhetoric that we have heard.

This bill, unfortunately, covers not only fast food lawsuits but also litigation involving consumer protection when obesity or weight gain may be one of the elements of the case.

Now, every single State has laws on the books to protect its consumers. Every State has laws to protect consumers from misleading practices and each attorney general has the power to enforce these laws. But unfortunately as written, the bill will prevent State attorneys general from enforcing those laws. It will not just stop the individual fast food lawsuits that my colleagues have been discussing, but because a person who may be a plaintiff is defined in the bill to include governmental agencies, it will prevent States from getting injunctions, cease and desist orders, or imposing fines against those who endanger consumers.

It is important to note that not only money damages are precluded by the bill. Rather, the bill refers to damages, penalties, injunctive or declaratory relief, restitution or other relief, all are prohibited forms of relief that will no longer be available to State attorneys general if this bill passes without my amendment.

The exception for a ``knowing'' violation is not enough. State deceptive practices are just like the Federal Trade Commission Act. They allow civil enforcement actions whether or not the defendant willfully or knowingly violated the law. In fact, food labeling and deceptive practices have often exacted strict liability, that is, if the government can get an injunction whether the person was intentionally or knowingly in violation.

Mr. Chairman, my State of Virginia has the Consumer Protection Act. It prohibits misrepresenting that goods or services have certain qualities, characteristics, ingredients, uses or benefits that they do not have, and any other conduct which similarly creates a likelihood of confusion or misunderstanding. A court may order an injunction or restitution to injured parties even if the violation was unintentional.

In fact, Virginia is not alone. At least 12 other States have specifically adopted the Uniform Deceptive Trade Practices Act, section 3, which says that intentional deceptive action is not necessary to get injunctive relief.

At least 23 other States have similar standards.

So, Mr. Chairman, my amendment that I present today will address that problem in the bill. It will ensure that attorneys general and State agencies can put an end to mislabeling, to deceptive practices, to false advertising, and other consumer fraud within the borders of the State. Whatever we think of the individual fast food lawsuits, we should not prohibit State attorneys general from enforcing States laws and protecting their citizens.

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

Mr. Chairman, in closing let me just say that, as the gentleman from Arkansas, who is a physician, indicated, weight gain can be caused by contamination or other problems, even if that contamination was unknowing. Under this bill, the attorney general would not be able to get an injunction. We should trust our States attorneys general and consumer protection agencies to do the right thing and not prohibit them from protecting our citizens.

Mr. Chairman, I would hope the amendment would be adopted.

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

Madam Speaker, I would like to thank the gentleman from South Carolina for his comments. I want to get back to the chart where he has debt service in 10 years of $458 billion. When you use big numbers like that, sometimes I like to put them into perspective. At $45,000 each with that money which is just going down the drain, you could hire over 10 million Americans for $458 billion, at $45,000 each, 10 million. There are less than 9 million unemployed today, drawing unemployment. So that is just money right down the drain.

You can hire everybody that is on unemployment, have money left over, and a $45,000 a year job for the money that we are going to waste on debt service because we have let this deficit get out of control.

In the deficit for 2015, the gentleman has listed $640 billion. We need to put that number in perspective. The entire revenue from the individual income tax, what everybody pays in individual income tax, is approximately $800 billion. They have overspent, gone in the hole $640 billion. You just wonder how bad it would have to get before they realized that this just is unsustainable.

I would ask the gentleman from South Carolina (Mr. Spratt) to explain this.

So the outyear deficit is essentially the same whether you pay for Katrina or not. That it is really a blip on the screen. So whatever our fiscal problems are, Katrina is absolutely irrelevant because that is only a blip on the screen.

This is the size of the deficit, the solid line without Katrina, the dotted line with Katrina. And after a couple years, you do not notice the distance.

Madam Speaker, I thank the gentleman for yielding to me, and the gentleman from North Carolina (Mr. Price) mentioned the question of whether the wealthy would be sacrificing in this budget. I just want to point out as we consider how to pay for the $200 billion potential cost of Katrina that there are two particular tax cuts that have not gone into effect yet, but will go into effect January 1. They are nicknamed PEP and Pease, the Personal Exemption Phaseout and the standard deduction phaseout. And as the gentleman has inferred, they only help the wealthy.

Now, we have to show a chart, because no one will believe it unless you show a chart. This shows how that cost of PEP and Pease will be distributed. If you make under $75,000 a year, you will get zero from this tax cut. If you make $75,000 to $100,000, you might get a dollar. If you make $100,000 to $200,000, you might get $25. You can hardly see the bar. Take my word for it, there is a little bar there to show the $25 you might get. At $200,000 to $500,000, you get $558, on average; and at $.5 million to $1 million, you get over $4,000. But if you make over $1 million, this tax cut that has not even started yet but will start next year, you will get about a $19,000 benefit from that.

To implement this tax cut, the 5-year cost is $200 billion. We wonder how to pay for Katrina? How about not letting this tax cut go into effect. That would cover the entire potential cost of a Katrina right there. But instead we are going to ask Medicare and Medicaid, possibly veterans health care, certainly student loans and school lunches, food stamps, and those who are most in need, those programs that the Katrina victims would actually be using, those are the programs that will be cut and not a tax cut for millionaires.

I think our priorities are wrong, and I appreciate the gentleman giving us the opportunity to bring this kind of chart to show what kind of tax cuts have not even gone into effect yet, but will go into effect beginning next year. And when we say it is a tax cut skewed to the wealthy, this chart shows exactly how that takes place.

Mr. Speaker, if the gentleman would yield, have we ever had PAYGO?

Mr. Speaker, if the gentleman would continue to yield, if you have a tax cut without PAYGO, you do not have to pay for it; and what happens when you cut taxes and increase spending without paying for it?

Mr. Speaker, will the gentleman yield?

Mr. Speaker, I believe the gentleman has some charts that he wanted to discuss about some of the choices that we are making.

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

Mr. Speaker, I come from a State that has a long tradition in supporting religious freedom. In fact, it was Thomas Jefferson of Virginia who wrote the Virginia Statute for Religious Freedom which predates the amendment to the Constitution.

Unfortunately, H. Con. Res. 245 is not about supporting religious freedom. In fact, this resolution is totally gratuitous, as it will do nothing to change the underlying law. This is because we are dealing with constitutional issues that cannot be altered by resolution. If the judicial branch ultimately finds the Pledge, or the national motto to be constitutional, then nothing needs to be done. On the other hand, if the Court ultimately finds it to be unconstitutional, no law that we pass will change that.

Although I tend to agree with the dissent in the 2002 Ninth Circuit decision in Newdow v. U.S. Congress, which

found that the words ``under God'' in the Pledge are permissible under the Constitution, I believe it is important to review the reasoning of the majority decision in that case which held that the words ``under God'' are impermissible on constitutional grounds.

The majority in the Newdow case applied each of the three Supreme Court tests that have been used over the last 50 years in evaluating Establishment Clause cases. That review is essential, because if we support the Pledge, we need to make sure that we support it based on appropriate constitutional principles.

One test the Ninth Circuit cited was whether the phrase ``under God'' in the Pledge constitutes an endorsement of religion. The majority opinion said it was an endorsement of one view of religion, monotheism, and, therefore, was an unconstitutional endorsement.

Another test was whether the individuals were coerced into being exposed to the religious message, and the majority opinion concluded that the Pledge was unconstitutional because young children are compelled to attend school and ``may not be placed in the dilemma of either participating in a religious ceremony or protesting.''

Finally, the Court applied the Lemon test, named after the 1971 Supreme Court case Lemon v. Kurtzman. Part of that test holds that a law violates the Establishment Clause if there is no secular or nonreligious purpose. Mr. Speaker, the Pledge was amended in 1954 to add the words ``under God'' to the existing Pledge, and so the Ninth Circuit concluded that the 1954 law had no secular purpose and was, therefore, unconstitutional.

Mr. Speaker, while I believe that the majority's reasoning was sound, I indicated that I tend to agree with the dissent in the 2002 Newdow case. The operative language in the dissent which persuaded me was as follows:

``Legal world abstractions and ruminations aside, when all is said and done, the danger that `under God' in our Pledge of Allegiance will tend to bring about a theocracy or suppress someone's belief is so minuscule as to be de minimis. The danger that phrase represents to our first amendment's freedoms is picayune at best.

``Judges, including Supreme Court Justices, have recognized the lack of danger in that and similar expressions for decades, if not for centuries.''

Mr. Speaker, I agree with the dissent and support the Pledge of Allegiance as is under the theory that the words ``under God'' are de minimis. Because the language fails other traditional Establishment Clause tests, the principle that the words ``under God'' are de minimis is the only principle that supports the Pledge as it is. If we suggest that the words are not de minimis, then what do we have to rely on? We would have to overturn one of the existing Supreme Court tests. What will we base that decision on? Would we permit, for example, the government endorsement of one religious view and open the door to other endorsements? Will we permit proscribed coercion of young and impressionable schoolchildren and open the door to other government proscribed religious messages? Should we repeal the Lemon law test and permit the enactment of legislation that only has a religious purpose?

Moreover, if we elect to maintain the Pledge with the words ``under God'' simply because it represents a page in our history as the Fourth Circuit appears to allow, then are we establishing a new Supreme Court test, a historical setting test, or is that the same de minimis standard that the Ninth Circuit cited?

Again, the only principle which upholds the constitutionality of the Pledge is that the words ``under God'' are de minimis, as explained by the dissent in the 2002 Newdow case in the Ninth Circuit. The problem with relying on that principle and enacting H. Con. Res. 245 is that our actions do more harm than good. The de minimis principle is precarious at best.

It is easily undermined by the emphasis we place on the language. If the courts look at the importance that we apparently affix to the words ``under God'' by passing this legislation and increasing the magnitude of the attention we give the issue, we subvert the argument that the phrase has de minimis meaning and, in fact, increase the constitutional vulnerability of that phrase in the pledge.

Mr. Speaker, when we were sworn in, we promised to uphold the Constitution. It is important to acknowledge that any court ruling based on constitutional rights will be unpopular. If the issue was popular, the complainant would be able to vindicate his rights using the normal democratic legislative process. Obviously, the fact that he had to rely on constitutional rights and go through the courts means that he was in the minority.

This will always be the case with constitutional rights. You do not need the Constitution to protect the freedom of speech to say something that is popular. You only need it when the majority tries to use the democratic legislative process or police power to stop you from expressing your views, and stopping the majority from exercising that power will always be unpopular.

Mr. Speaker, whatever we think of the recent California district court or the previous Ninth Circuit decisions, the only thing worse than those decisions is a spectacle of Members of Congress putting aside efforts to address the tragedies caused by Hurricanes Katrina and Rita, considering the appointments to the Supreme Court, completion of the appropriations process for the fiscal year that begins 3 days from now, and the need to address a budget deficit that jeopardizes the next generation in order to take time to pass this resolution. Such a spectacle only emphasizes the importance of the words ``under God'' and, simultaneously, undermines the only constitutional argument that supports the Pledge as it is, and that is, that the words are not important.

Mr. Speaker, in that light, the majority of the Members of Congress will always disagree with the constitutional decision of the judicial branch, and so, Mr. Speaker, because this resolution actually makes it less likely that a court can find the Pledge unconstitutional and because what we think about the decision is actually irrelevant and because we have other important business to do, I would hope that this resolution is defeated.

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

Mr. Speaker, I yield 6 minutes to the gentleman from New York (Mr. Nadler), the ranking member of the Subcommittee on the Constitution.

Mr. Speaker, I yield 6 minutes to the gentleman from Michigan (Mr. Conyers), the ranking Democrat on the Committee on the Judiciary.

Mr. Speaker, I yield myself such time as I may consume and point out that out of respect for the judicial branch and because the passage of this resolution will actually make it less likely that the Pledge will be found constitutional by the judicial branch, we should defeat this resolution.

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

Mr. Chairman, the bill as passed by the Committee on the Judiciary makes important improvements on the Department of Justice authorization. It was approved on a bipartisan basis. It deals with the Violence Against Women Act, especially as it applies to immigrants, the COPS authorization, fighting drug abuse. It adds administrative efficiencies, and, as I indicated, it came out of committee on a bipartisan basis. Unfortunately, the manager's amendment will ruin this bipartisan cooperation.

Reference has been made to the letter we have received from the NAACP that points out that the bill as passed out by the Committee on the Judiciary was much better than the manager's amendment.

Mr. Chairman, there were no hearings on this amendment, there is no public comment, it is just a manager's amendment which is supposed to be uncontroversial. It would have been helpful if we could have had committee consideration and agreed on bipartisan language.

I am sensitive to the concerns of the chairman that the Constitution may jeopardize the language that is in the bill, but I think we should have worked it out, and, in the absence of an agreement, I would hope that we would defeat the manager's amendment. If we are expected to appropriately address and relieve racial tensions in our communities, the only way I think we can do this appropriately at this point would be to defeat the manager's amendment and come back and try to work out language that everyone can agree on.

Mr. Speaker, I oppose the rule because it allows the Boustany amendment. Let us be clear. First of all, faith- based organizations sponsor Head Start programs now. They have and they will continue to. My own church hosted a Head Start program. They sponsor the programs, just like everybody else, on a level playing field. They have to use the money for Head Start and they cannot discriminate in employment.

Any organization that can sponsor a Head Start program under that amendment can do it anyway if they agree not to discriminate. We are talking just about discrimination. We are not talking about allowing groups to sponsor Head Start programs. We are talking about allowing them to discriminate in employment with the Federal money.

Now they can still discriminate with the church money, just not with the Federal money. This discussion really represents a profound change in civil rights discussions, because there was a time traditionally if an employer had a problem with somebody's religion, the employer has a problem because the weight of the Federal Government would come down supporting the victim. Now we are talking about what rights the group has to discriminate against the victim.

If we are talking about religion, we are also talking about race because if you can discriminate based on religion, some religions are virtually all white, others virtually all black. So if you can discriminate based on religion, you can discriminate based on race. Where is your moral authority to tell somebody with their private money what they can do and cannot do, if you are going to turn around and allow people to discriminate with Federal money?

Mr. Speaker, that is wrong and a rule that allows that is wrong. There used to be a time when parents would have to describe to their children why they could not eat at the lunch counter, why they had to sit in the back of the bus, why they could not get a job at certain firms. And now we are going to have to have parents tell children why they could not get a job at the Head Start program while their neighbors could get a job at the Head Start program.

I want to remind Members that any organization can sponsor the federally funded Head Start program now if they agree not to discriminate. We do not need to turn the clock back, and we also do not need a rule that allows this to ruin the Head Start program.

Mr. Chairman, I just wanted to remind the House that faith-based organizations can and do sponsor federally funded Head Start programs. Any sponsor who will agree not to discriminate in employment, if they can sponsor a program with the discrimination amendment, they can sponsor the program without that amendment if they would agree not to discriminate.

What we are talking about is discrimination. Some people want to discriminate against Catholics, Jews, Muslims, African Americans. We had this discussion in the 1960s, and the consensus back then was that discrimination in employment was so offensive that we made it illegal. The victim needs to be protected and the weight of the Federal Government will fall down on the side of the victim.

The vote was not unanimous. Some people did not like it then; they do not like it now. And we are discussing where should the weight of the government be, with the victim or with somebody trying to discriminate. This is Head Start. We should not give students of Head Start the idea that their parents were denied a federally funded job solely because of their religion.

We have heard of the Supreme Court. All of the Supreme Court decisions have said it is okay for a church to discriminate in employment with church money. None have supported discrimination with direct Federal funding. We have heard of our forefathers in 1964. We know that since 1965 it has been illegal, at least until this administration, to discriminate with Federal money. Head Start has been reauthorized for over 40 years with the civil rights protections.

President Clinton's name has been invoked. What is left out is his signing statement where he said that his analysis was that they could not discriminate with the Federal money under his analysis. This administration has changed that analysis, but we need to make sure that President Clinton's whole signing statement is included.

Mr. Chairman, I submit for printing in the Record letters from numerous organizations including the National Head Start Association which oppose the discrimination amendment and ask us to vote ``no'' on the underlying bill if they sabotage civil rights protections.

September 22, 2005.

Dear Member of Congress: I have become aware that an

amendment has been offered by Rep. Boustany (R-LA) to the

Head Start bill on the House floor today that would give

faith-based organizations providing Head Start services the

right to discriminate with federal funds against employees

who are of different faiths. As the State President of the

Louisiana Head Start Association, I strongly oppose such an

amendment.

It is a sad day when Members of Congress try to manipulate

compassion evoked by the national tragedy in my state of

Louisiana caused by Katrina to pass a civil rights repeal in

Head Start or jeopardize the passage of this law so important

to the children of my state and our nation.

I know, firsthand, that Head Start is a model for

demonstrating that a strong prohibition on religious

employment discrimination with federal funds is fully

compatible with federal assistance to faith-based charities.

Faith-based organizations, like the ones I oversee, can and

do fully participate in federally funded programs without

discriminating in hiring with those same federal funds. I see

no reason to change the law to allow them to use federal

funds to discriminate against our employees. My state's

religiously affiliated providers are more than capable and

willing to honor the civil rights requirements of the Head

Start program.

I am greatly concerned that the provision to remove civil

rights protections for employees could have a negative impact

on the children and families who participate in these

programs. Tens of thousands of at-risk 3- and 4-year-old

children currently in Head Start could lose their teachers--

who often are the most important adults to whom they have

bonded, other than their parents--not because those teachers

are doing a bad job, but because they are the ``wrong''

religion.

As the State President of the Louisiana Head Start

Association, I urge you to reject the Boustany amendment to

allow discrimination in Head Start. Such a provision is

incompatible with the mission of this program.

Sincerely,

Barbara Pickney,

St. Landry Parish Head Start Program, State President of

the Louisiana Head Start Association.

Mr. Chairman, I just want to make clear the Supreme Court cases made it clear that you could discriminate with your personal church money, but not with Federal money. All of the cases are consistent. In fact, if my colleagues read the cases, they point out that if you are using Federal money, you cannot discriminate.

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

Madam Speaker, S. 1368, which passed the Senate by unanimous consent, is identical to H.R. 3020, which was reported out of the Committee on the Judiciary by voice vote without apparent opposition.

For the reasons outlined by the chairman of the Committee on the Judiciary, the bill will reauthorize the U.S. Parole Commission for an additional 3 years. It will also give the Sentencing Commission emergency authority to promulgate sentencing guidelines which will implement sentencing policies reflective of recent changes in Federal law relating to sentencing in areas of obstruction of justice and anabolic steroids. Both provisions are necessary to continue to properly implement Federal sentencing laws, and I, therefore, urge my colleagues to support the bill.

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

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

H.R. 3827 was introduced by the gentleman from Wisconsin (Chairman Sensenbrenner); the ranking member of the Committee on the Judiciary, the gentleman from Michigan (Mr. Conyers); and the ranking member of the Subcommittee on Immigration, the gentlewoman from Texas (Ms. Jackson-Lee).

Mr. Speaker, among the many tragic consequences of Hurricane Katrina, immigrants and foreign visitors lost important immigration benefits; as the gentleman from Wisconsin (Mr. Sensenbrenner) indicated, spouses who had filed family-based visa petition on behalf of their family members who may have died, and that obviously nullifies those petitions. This bill would provide special immigration status for the surviving family members.

Another example is the plight of foreign students who lost their schools in

the hurricane. This bill would allow them to continue their student status at a new school if they can resume their studies by February 1. This bill was the result of bipartisan cooperation, and I urge my colleagues to support the Immigration Relief for Hurricane Katrina Victims Act of 2005.

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

Mr. Speaker, this did not go through committee, so I just had a question for the chairman of the committee, if the chairman would respond.

My question is what impact this will have on someone minding their own business, sitting at a stoplight, that gets rear-ended by someone headed to New Orleans in an automobile accident, simple negligence, with insurance. Does the innocent party now have to pay their own medical bills, or is there some provision in the bill that allows the insurance to still be available to pay the medical bills?

I yield to the gentleman from Wisconsin.

Mr. Speaker, reclaiming my time, in this case, if the volunteer is hit and has an automobile accident, fully insured, you lose the insurance, the innocent victim is now subject to pay his own medical bills. Where, ordinarily, there would be compensation for the automobile accident, that is lost. These are people who could be in States not even affected, just sitting at a stoplight.

Usually, when we have these immunity bills, we provide that the insurance in an automobile accident, the insurance would apply. This would exempt the insurance. I think it is one of the problems of bringing bills like this to the floor without going through committee. I think we could have fixed that.

Mr. Chairman, I yield myself 7 minutes.

Mr. Chairman, we all abhor the horrific cases of child murders or sex offenses committed by those who are referenced in the bill. But the question before us is whether what we are doing in the bill will actually reduce the incidence of child molestation or actually increase it.

We should certainly seek to avoid enacting legislation that expends scarce resources in a manner that is not cost effective or that exacerbates the problem. It is clear that having police supervision and police awareness of the location and identification information about sex offenders is appropriate and helpful.

But it is not clear that putting that information indiscriminately on the Internet, regardless of the dangerousness of the individual, with no guidance or restriction of what people should do with the information, it is unclear whether that is helpful or harmful.

There have been incidents of vigilantes and other activities where offenders have actually been driven underground, so you actually do not know where they are. That is certainly not good for children. And try to sell your home when a sex offender moves a few blocks away. Are children actually helped by that? That would be a necessary problem; but there is no evidence that putting that information on the Internet actually reduces the incidence of child molestation, so the real estate prices all over the neighborhood go down.

Now, research shows that 90 percent of sex offenses against children involve either family members or someone well known to the victim. So when you put names and addresses on the Internet, 90 percent of the offenses are not even covered. We also have the situation where those on the Internet are ostracized and subjected to public notoriety, embarrassment, ridicule, and harassment.

In one actual case, a teacher was reading the names of offenders to grade school students in an apparent effort to protect them, when one student blurted out the question to another student: ``Is that not your father?''

This victimizes the victim twice and may well discourage offense reporting that is already considered very low in these situations. Many offenders identified on the Internet will not only become unemployed and unemployable because of that notoriety, but they may also have to leave their home to avoid embarrassment or other consequences to themselves and their families, and having done that, may just go underground and not bother to register again.

Where an offender clearly represents a threat to the public, perhaps the consequences to the victims and their family members cannot be avoided; but where the individual clearly does not present a threat to the public, informing the general public may do more harm than good.

Law enforcement and child-serving authorities should have access to the information. Until they have reliable information to show that the impact of the Internet will actually reduce the incidence of child molestation, we should be circumspect on how we use this information.

Now, we have taken a step in the right direction in the bill by encouraging those States and localities that are not already doing so to consider whether there are offenders who should be required to register, but may not have to be put on the Internet.

I am pleased, Mr. Chairman, that the gentleman from Wisconsin (Mr. Sensenbrenner) has indicated his willingness as the bill moves towards conference to continue to look for ways we might support the States and localities who are already making such assessments while encouraging those who are not making those assessments to do so.

There are effective things we can do, and hopefully we will have amendments that will deal with this. Because research has shown that intensive, therapeutic sexual offender treatment cuts sexual offense recidivism in half. Fortunately, the evidence is that, even without the treatment, recidivism is low amongst sexual offenders of children. This is not what the legend is, but the facts are that a recent study by the Department of Justice showed that the rearrest rate among child molesters is 3.3 percent, much less than the recidivism rate of other criminals.

Any recidivism rate is too high, so I am pleased that we are working together to fashion a provision that will assure that all sex offenders in the Federal system will receive appropriate, effective treatment prior to their release; and I hope that we can continue to work together to provide a similar system for State offenders where we could significantly reduce child victimization by assuring access to effective treatment for all.

Now there are provisions in this legislation that are not based on research or sound reasoning like the death penalty, mandatory minimums, both of which have been studied and shown not to have any effect on crime. We also have the anomaly in this because it is Federal legislation that because Indian reservations, their sole access to courts is the Federal system, they will all be under the Federal system but most others will not. So it will have a disproportionate effect against Native Americans.

Now, day by day we are seeing more and more evidence that the death penalty administration is fraught with mistake, racial discrimination and it is applied in an arbitrary way. We have also seen the mandatory minimums have been shown to waste the taxpayers' money, been racially discriminatory, and the Judicial Conference reminds us every time we have a mandatory minimum for consideration that mandatory minimums violate common sense compared to traditional sentencing approaches.

This bill includes a 5-year mandatory minimum for any technical violation involved in registration. For example, if you are already registered and you attend the local community college but forgot to recognize that the community college is in a different jurisdiction and you should have registered there, too, well, that offense is subject to a 5-year mandatory minimum. Notwithstanding the fact that the original offense was 15 years ago, was a misdemeanor for which no time was imposed, it is a 5-year mandatory minimum for the technical violation of not registering correctly.

Another provision that is in the bill that will not have much effect on reducing child molestation is eliminating the access to habeas corpus. That will not reduce sex crimes. All of these are good, politically appealing sound bites that will help politicians get elected but which have no evidence that they will actually reduce the incidence of child molestation.

This bill will cost over $500 million over the next few years. We need to

make sure that when we spend that kind of money that we actually do something constructive. Here we have a bill with mandatory minimums, death penalties that have been shown that have nothing to do with reducing crime, it is primarily focused on Native Americans, and I would hope that we would support amendments to eliminate such extraneous matters on the bill so we can concentrate the $500 million on effective crime-reducing approaches.

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

Mr. Chairman, I yield 4 minutes to the gentleman from Michigan (Mr. Conyers).

Mr. Chairman, I yield 2\1/2\ minutes to the gentleman from Illinois (Mr. Emanuel).

Mr. Chairman, I yield 3 minutes to the gentleman from North Dakota (Mr. Pomeroy).

Mr. Chairman, I yield 2 minutes to the gentleman from Alabama (Mr. Cramer).

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

During the last few minutes, we have heard a lot of praise of mandatory minimums. I just want to remind the House that the Judicial Conference writes us frequently and reminds us that mandatory minimums violate common sense. That is because if the offense requires the mandatory minimum and that makes common sense, it can be applied; but if it makes no sense, mandatory minimums require us to impose that sentence anyway.

Many of the provisions of the bill are crimes which we do not think would be subject to 5- or 10-year mandatory minimums. There is a provision in the bill that says that felonious assaults against a juvenile, which could be two juveniles having a fist fight in the school yard, if it gets into a big fight, that that is a 10-year mandatory minimum if no injury occurs. Now, of course, if an injury occurs in the fight, then you are talking about 20 years. I think common sense should prevail and a more appropriate sentence could be given.

This entire registration program that requires people to register has not been shown to reduce the incidence of child molestation. For someone who commits a crime, even as a juvenile, they will be subject to lifetime registration. There is no suggestion and there is no evidence that that reduces crime. It may actually increase crime.

We know that 90 percent of the offenses against children were people that would not be covered by the legislation, and 3.3 percent of those covered by the legislation might offend. We have other ways of dealing with that in such a way that we can actually reduce that 3.3 as much as 50 percent. We ought to be focused on that.

Mr. Chairman, we need to focus on the things that will actually reduce crime. This bill, many of the provisions of it, obviously, do not; and I would hope that we would focus appropriately to actually protect the children.

Mr. Chairman, I have no further requests for time, and I yield back the balance of my time.

Mr. Chairman, I ask unanimous consent to consider amendments No. 4 and 7, preprinted in the Congressional Record, when we call up title III. These amendments primarily affect title III. However, there is a little portion that affects title I.

Mr. Chairman, I would incorporate by reference the comments I have made on mandatory minimums, and I think it would apply to this amendment.

Mr. Chairman, I rise in opposition to the amendment and would just point out that this requirement for a driver's license just adds another little ``gotcha'' for which someone could be subjected to a 5-year mandatory minimum and, therefore, would oppose the amendment.

Mr. Chairman, I move to strike the last word.

I join in support of the amendment. It is money that will be extremely well spent and actually deals with the problem. I thank the gentleman for introducing the amendment.

Mr. Chairman, I move to strike the last word.

Mr. Chairman, this amendment eliminates the 5-year mandatory minimum for failing to properly register and the 5-year mandatory minimum for falsifying registration information, with the possibility still of 20 years.

The amendment keeps the 20-year maximum for both crimes and leaves it to the Sentencing Commission and the courts to determine the gradations of seriousness and the punishment for violations based on the facts and circumstances of the violation.

It is absurd that misdemeanants and other minor offenders who get a suspended sentence for a crime that was committed 15 years ago could get a 5-year mandatory minimum sentence for a technical violation of a registration requirement such as showing up at 5:30 on the last day of registration when the office closed at 5 o'clock or failing to register the fact that they are in a community college that has different sites. Do they have to register everywhere they might take a class or just the main registration place for the community college? Or if they work in construction, if they register at the home office of the construction company, do they also have to register at each location where they are doing construction? If they guess wrong, 5 years mandatory minimum, no discretion on the part of the judge.

Are our children going to be safer or less safe if an offender knows that he is in technical violation? If he shows up to register after he has been in technical violation, he knows he is looking at a 5-year mandatory minimum. Is he going to show up or not?

Mr. Chairman, it is also absurd that an offender would be sentenced to a minimum 5 years for giving a technically false statement regarding this registration when, under the same section of the law, there is a maximum of 8 years, no minimum sentence, for either making a false statement in connection with international or domestic terrorism. A false statement on terrorism, 8 years maximum, no minimum; technical violation on registration, 5 years mandatory minimum, 20 years possibility.

Again, this amendment retains the 20-year maximum for cases such as those cited by the chairman, but it allows common sense in determining which offenders would get what sentence for what violations.

We have been told by the Sentencing Commission and the Judicial Conference time and time again that mandatory minimum sentences violate common sense. For someone who deserves the time, the mandatory minimum has no effect because they will get the time. For those who do not deserve the time, that violates common sense. They will get that time anyway.

In everyday experiences judges can see differences, great and small, in the facts and circumstances in the cases before them. The name of the crime is often a poor indicator of the facts and circumstances of the crime. So it makes sense to have a rational assessment by one who has heard and seen the evidence and facts and circumstances of the case making the appropriate decision within the guidelines set by the Sentencing Commission relating to the gradations in seriousness of the crime and the other characteristics. That is why we set up the Sentencing Reform Act that set up the Sentencing Commission, and these mandatory minimums obviously violate that entire system.

Of course, under the Federal system, the ones who will primarily be affected will be Native Americans because they try all their cases in Federal courts; and it is unfair to them and unfair to common sense where identical offenses can be committed, one by a Native American, another a few miles away, the same crime and vastly different sentences because the Native American is stuck in Federal court with the 5-year mandatory minimum. These mandatory minimums violate common sense, and so I am delighted to join the gentleman from South Carolina in this amendment and hope our colleagues will support it.

Parliamentary inquiry, Mr. Chairman.

Mr. Chairman, are we in title III?

Mr. Chairman, I offer amendments 4 and 7, which unanimous consent was granted to consider at this point.

Mr. Chairman, these amendments eliminate section 302 from the bill. Section 302 is extremely problematic.

First of all, it includes a death penalty that applies to unintentional deaths. That raises severe constitutional problems that you could be put to death for an unintentional act. We already have penalties for the death penalty for intentional acts. This would add unintentional acts.

Over 100 people have been totally exonerated or otherwise released from death row due to erroneous death penalties, and one study showed that 68 of death penalties were overturned as illegal. That does not include the ones where mistakes were made for which the error was so- called ``harmless.'' Other studies have shown that death penalties have been discriminatory against minorities, either affecting the consideration, undue consideration of the race of the defendant or the race of the victim.

We, a few years ago, passed the Innocence Protection Act, which provides for effective counsel and case development to be well-funded, but we have not fully funded that Innocence Protection Act, so until it is fully funded, we should not be passing more death penalties.

In addition, section 302 includes mandatory minimums. Let us see what

these mandatory minimums are for. Any felonious attack on someone under 18 years of age. That would include a schoolyard brawl which gets bad enough when they start throwing chairs at each other or something like that. If there is no injury in that situation, that is a 10-year mandatory minimum. If a dangerous weapon, whatever that means, is used, then you get 15 years, if there is no injury. Now, if there is actually an injury, then the mandatory minimum for this brawl for teenagers fighting teenagers would be 20 years; and if the crime of violence is a more serious offense, then 30 years mandatory minimum.

Starting with 10 years mandatory minimum for a schoolyard brawl, Mr. Chairman, is why these mandatory minimums make no sense. If the felony has been committed, maybe they should be sentenced to 10 years, maybe 20 years. This says no less than 10 years, even if there is no injury.

I would hope, Mr. Chairman, as we consider mandatory minimums that we would look at this as being excessive. Give the judge the discretion to apply a sentence that makes sense. But to have a mandatory minimum to apply in situations where no injury has occurred, no dangerous weapon was involved, 10 years mandatory minimum for teenagers having a fight, this just does not make any sense at all. If an injury actually occurs, it is actually 20 years mandatory minimum.

I would hope we would eliminate the entire section 302 to eliminate those mandatory minimums. There are plenty of provisions throughout this bill and throughout the Criminal Code to deal with people who deserve this kind of time, but to have a mandatory minimum in cases where no injury occurred is clearly excessive to be applied in all cases without discretion, whether it makes any sense or not.

We need to remove this section, and I hope that is what we do by adopting the amendment.

Mr. Chairman, I move to strike the last word.

Mr. Chairman, the language in the bill is bad enough. This just makes it worse. We should eliminate the section of the bill where the bill already severely restricts the right of those convicted of sex offenses from their access to appeal.

Many who have been exonerated through DNA or other evidence have been exonerated and released due to their access to habeas corpus petitions. Restricting access to habeas will result in more innocent people being put to death or languishing in jail for crimes they did not commit.

We have a serious question, Mr. Chairman, as to whether guilty people are entitled a fair trial. If you have a person who is not suggesting that they are actually innocent, but they just did not get a fair trial, they do not have access to habeas corpus anyway. An allegation of innocence is a prerequisite to getting into habeas corpus petitions anyway. This is just going to make it worse, and more innocent people will be in jail. I would hope we would not adopt the amendment to make it worse.

I yield to the gentleman from Arizona.

Mr. Chairman, if you are going to have any review, I think it ought to be a full review: sentencing, conviction, and otherwise. I would hope that we would not make the bill any worse than it is, and the underlying provision is bad enough.

Mr. Chairman, I move to strike the last word.

Mr. Chairman, in the recent case of Free Speech Coalition v. Ashcroft, the Supreme Court indicated that if the material is not obscene it cannot be prohibited unless real children are involved. This amendment prohibits simulated conduct, digital images that may have been produced without real children being involved. If real children are not involved, the material has to be technically obscene to be prohibited.

The Supreme Court indicated in the decision that the fact that this material may whet someone's appetite or the nature of the case caused problems for law enforcement, those could not be the grounds for violating the Constitution in having material that is not obscene being prohibited.

The case, whether you like it or not, and bringing it up as a floor amendment means we cannot try to conform the language to the Supreme Court decision, so the only thing we can do is to vote against it if we believe in the Constitution and if we read Free Speech Coalition v. Ashcroft.

Mr. Chairman, I move to strike the requisite number of words.

Mr. Chairman, I rise in support of the amendment, and I yield to the gentleman from Michigan (Mr. Conyers),

the ranking member of the Committee on the Judiciary.