Floor Statements

Mr. Chairman, I thank the gentleman for yielding me this time.

Mr. Chairman, I come from a State with a long tradition of supporting religious freedom. The Virginia Statute For Religious Freedom, written by Thomas Jefferson preceded the first amendment to the Constitution. This bill does not protect religious freedom, and it also undermines fundamental rights of American citizens.

Mr. Chairman, most experts believe that the bill is meaningless, because whether or not the recitation of the Pledge is constitutional or not constitutional is a matter for the courts to decide. And if it is unconstitutional, that ruling cannot be changed by a statute enacted by this body.

Now, I happen to believe that the present Pledge of Allegiance is constitutional, and I agree with the dissent in the Newdow versus U.S. Congress case, the recent Ninth Circuit case involving the Pledge of Allegiance. In my judgment, the dissent accurately surmised, and I quote ``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.''

Now, to the extent that ``under God'' is worthy of this excessive attention, every hearing we have and every bill we pass on this issue only serves to chip away at the de minimis argument and we have to deal with the issue as it is explained in the Christian Century, a non- denominational Protestant weekly, which stated, and I quote, ``To the extent `under God' has real religious meaning, then it is unconstitutional. The phrase is constitutional to the extent that it is religiously innocuous. Given that choice, I side with the Ninth Circuit, the government should not link religion and patriotism.'' Now, that is an editorial position expressed by the Christian Century.

The simple fact is we need to protect the Constitution and the rights of the court to decide whether the Pledge is constitutional or not, but the majority will not do that. H.R. 2028 is a court-stripping bill, plain and simple.

We had the same debate on the floor just 2 months ago when we debated the Marriage Protection Act of 2003. Mr. Chairman, I ask that that debate be incorporated by reference here just to save time. Because at that time many of us expressed concern about the detrimental precedent that we would be setting by passing a court-stripping bill. Today, our concerns have been validated.

This bill would strip the courts of their ability to hear cases that are clearly within Federal jurisdiction because they address fundamental constitutional rights and individual liberties guaranteed to us in the bill of rights. Furthermore, this bill is not limited to cases addressing the words ``under God.'' The recitation of the Pledge may, in some circumstances, implicate the right to free speech, the right of free association, the right to the free exercise of religion, and the establishment clause protections, all guaranteed under the first amendment to the Constitution.

We need Federal courts to protect our rights, and this bill prohibits the courts from doing just that. This bill violates over 200 years of constitutional principle established in Marbury versus Madison that the Supreme Court can rule on the constitutionality of legislative actions.

Now, if this kind of court-stripping legislation had been passed in 1954, Congress could have prohibited the Supreme Court from hearing cases involving segregation in public schools and the courts could not have ruled in Brown v. Board of Education. Or if it had passed such language in the 1960s, we might not have had the decision issued by what some are now calling rogue, unelected, lifetime-appointed, activist judges when they ruled to overrule the will of the people of Virginia and require Virginia to recognize marriages between blacks and whites. That could not have happened unless those so-called rogue, unelected, lifetime-appointed, activist judges made the decision they made.

The truth is we rely on Federal courts to determine and enforce our civil rights. In our system of democracy, which we are touting around the world, courts are where citizens can vindicate their rights. Our government works on a system of checks and balances. That is why many organizations, legal associations, civil rights groups, and religious organizations, have written to oppose us overturning 200 years of judicial precedence.

In closing, Mr. Chairman, we should, instead, adhere to the wisdom of the Supreme Court in the Barnette case, which said ``The very purpose of the bill of rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to

vote; they depend on the outcome of no elections.''

Mr. Chairman, I submit for the Record letters from organizations in opposition to this bill.

The Constitution Project,

Washington, DC, September 20, 2004.

House of Representatives, U.S. Capitol, Washington, DC.

Dear Members of House of Representatives: I write on behalf

of the Constitution Project to urge you to oppose H.R. 2028,

the ``Pledge Protection Act of 2003.''

The Constitution Project, based on Georgetown University's

Public Policy Institute, specializes in creating bipartisan

consensus on a variety of legal and governance issues, and

promoting that consensus to policymakers, opinion leaders,

the media, and the public. We have initiatives on the death

penalty, liberty and national security, war powers, and

judicial independence (our Courts Initiative), among others.

Each of our initiatives is directed by a bipartisan committee

of prominent and influential businesspeople, scholars, and

former public officials.

Our Courts Initiative works to promote public education on

the importance of our courts as protectors of Americans'

essential constitutional freedoms. Its co-chairs are the

Honorable Mickey Edwards, John Quincy Adams Lecturer at the

John F. Kennedy School of Government at Harvard University

and former chair of the House of Representatives Republican

Policy Committee (R-OK), and the Honorable Lloyd Cutler, a

prominent Washington lawyer and White House counsel to

Presidents Carter and Clinton.

In 2000, the Courts Initiative created a bipartisan Task

Force to examine and identify basic principles as to when the

legislature acts unconstitutionally in setting the powers and

jurisdiction of the judiciary. The Task Force was unanimous

in its conclusion that some legislative acts restricting

courts' powers and jurisdiction are unconstitutional. The

Task Force also concluded that some legislative actions, even

if constitutional, are undesirable. (The Task Force's

findings and recommendations are published in Uncertain

Justice: Politics and America's Courts 2000.)

Our Task Force arrived at seven bipartisan consensus

recommendations, including the following, which are relevant

to the legislation at hand:

1. Congress and state legislatures should heed

constitutional limits when considering proposals to restrict

the powers and jurisdiction of the courts.

2. Legislatures should refrain from restricting court

jurisdiction in an effort to control substantive judicial

decisions in a manner that violates separation of powers, due

process, or other constitutional principles.

3. Legislatures should not attempt to control substantive

judicial decisions by enacting legislation that restricts

court jurisdiction over particular types of cases.

4. Legislatures should refrain from restricting access to

the courts and should take necessary affirmative steps to

ensure adequate access to the courts for all Americans.

Specifically, our Task Force was unanimous in its view that

there are some constitutional limits on the authority the

legislature to restrict court jurisdiction in an effort to

control substantive judicial decisions. In particular,

separation of powers, due process, and other constitutional

provisions limit such authority. Task Force members had

differing views about the scope and source of the

constitutional limit on the legislature's power in this area.

For instance, some believed that restrictions on jurisdiction

become unconstitutional when they undermine the essential

role of the Supreme Court. Others relied on a reading of the

Vesting Clause of Article III, which places judicial power--

the power to decide cases--in the hands of the courts alone.

Nonetheless, all believed that constitutional limitations

exist.

Apart from the constitutionality of laws restricting

federal court jurisdiction, the Task Force was also unanimous

in its view that legislative acts stripping courts of

jurisdiction to hear particular types of cases in an effort

to control substantive judicial decisions are undesirable and

inappropriate in a democratic system with co-equal branches

of government. Legislative restriction of jurisdiction in

response to particular substantive decisions unduly

politicizes the judicial process, and attempts by

legislatures to affect substantive outcomes by curtailing

judicial jurisdiction are inappropriate, even if believed

constitutional. (Indeed, it was striking that members

reflecting a broad ideological range--from, for example,

Leonard Leo of the Federalist Society to Steven Shapiro of

the American Civil Liberties Union--agreed that restrictions

on jurisdiction to achieve substantive changes in the law are

unwise and undesirable policy.)

The Task Force was also unanimous that legislation that

restricts access to the courts and precludes individuals from

using a judicial forum to enforce rights is undesirable and

unconstitutional. Rights are meaningless without a forum in

which they can be vindicated. Therefore, access to the courts

at both the federal and state levels is essential in order

for rights to have effect. Legislatures have the duty to

ensure meaningful access to the courts and legislative

actions that preclude this are undesirable and

unconstitutional.

Our Task Force reached these conclusions and

recommendations rightly. From its beginning, our system of

constitutional democracy has depended on the independence of

the judiciary. Judges are able to protect citizens' basic

rights and decide cases fairly only if free to make decisions

according to the law, without regard to political or public

pressure. Similarly, the judiciary can maintain the checks

and balances essential to preserving a healthy separation of

powers only if able to resist overreaching by the political

branches. Indeed, the cornerstone of American liberty is the

power of the courts to protect individual rights from

momentary excesses of political and popular majorities.

In recent years, as part of the polarization and posturing

that increasingly characterize our national and state

politics, threats to judicial independence have become more

commonplace. Attacks on judges for unpopular decisions, even

those made in good faith, have become more rampant.

Politicians are responding to unpopular decisions and

litigants by attempting to restrict courts' powers in certain

kinds of cases. However, Americans have much to lose if we do

not exercise self-restraint and instead choose short-term

political gain at the expense of judicial independence.

The independence of our judiciary is, as Chief Justice

Rehnquist described, ``one of the crown jewels of our

system of government.''

In conclusion, while Article III of our Constitution gives

Congress the power to regulate federal court jurisdiction,

this power is not unlimited, and Congress should not--and in

some instances may not--use its power to restrict federal

court jurisdiction in ways that infringe upon separation of

powers, violate individual rights and equal protection, or

offend federalism. H.R. 2028 is poised to do all three by

stripping federal courts--including even the U.S. Supreme

Court--of the authority to hear cases involving the Pledge of

Allegiance, even when such cases involve First Amendment

issues of free speech and freedom of religion. It sets the

dangerous precedent of transferring questions of federal and

constitutional law exclusively to state courts and preventing

American citizens from seeking protection of fundamental

rights in federal court, and it threatens the critical and

unique role that the federal courts play in constitutional

balance of powers, interpreting and enforcing constitutional

law, and providing legal certainty.

For these reasons, as well as those detailed our Task

Force's findings and recommendations, the Constitution

Project urges you to oppose H.R. 2028. Thank you for your

consideration.

Sincerely,

Kathryn A. Monroe,

Director, Courts Initiative.

Mr. Chairman, I applaud the chairman of the committee for offering the manager's amendment that grants to the D.C. residents the same rights that apply to residents of the 50 States under this bill, that is, the right to have some recourse in a local, non-Federal court. However, the manager's amendment still does nothing to address the same problem with respect to U.S. citizens who are residents of the U.S. Virgin Islands, Northern Mariana Islands, and Guam.

This amendment just goes to show that the majority was so busy stripping the courts of jurisdiction that it inadvertently stripped jurisdiction from all the courts, just as they did last week in a tort reform bill allowing foreign corporations to escape all liability for injuries to American citizens because the bill, in some cases, provided no United States jurisdiction in which the case could be brought.

Mr. Chairman, will the gentleman yield?

Mr. Chairman, I would say to the chairman, I think I agree with him on Puerto Rico, but disagree with regard to the Virgin Islands and others. If we could agree that the legislative intent is to make sure there will be some recourse, we could have that fixed in conference.

Mr. Speaker, I would ask the gentleman to explain what this blue line on the top might be.

I thank the gentleman.

Mr. Speaker, I thank the gentleman for yielding to me.

One of the things that we have found in the debate on the budget is you really have to use charts because one side will say the deficit is bad; the other side, it is manageable. But when you look at the chart, going back to Johnson, Nixon, Ford and Carter, that is the yellow; the Reagan and Bush deficits, that is the red; the green, that is the Clinton administration; and this is on-budget surplus. That is after Social Security and Medicare, and then President Bush. You cannot create a chart like this by accident.

The gentleman from South Carolina pointed out that in 1993 we cast tough votes. Not a single Republican in the House or the Senate voted for the budget that turned this deficit around, started it up. Now, some like to point out that the Republicans had control of the House and the Senate during six of the 8 years of the Clinton administration and, therefore, deserve some credit for the elimination of the deficit and the generation of the surplus. Wrong.

In 1995, when the Republicans came in, they passed irresponsible budgets. President Clinton vetoed them. They threatened to close the Government down. He vetoed them again. They closed the Government down, rather than allow those deficits to return, and as a result of the Presidential vetoes, we maintained the progress towards a surplus. So you cannot take credit for those kinds of budgets that were vetoed. In fact, we know what would happen if the President had signed those budgets because, when President Bush came in, they passed the same kind of budget; and we see the total collapse of the budget, record deficits, as the gentleman from South Carolina has pointed out, as far as the eye can see.

Now, just to give you an idea of the deterioration of the budget, this is the 2004 budget, the budget we are in today. In January 2001, when this administration came in, we projected a $390 billion surplus, and then the tax cuts and the administration policy was adopted so they had to, in May, recalculate. A 274 surplus was projected for this year. After September 11, March, almost 6 months after September 11, they projected, well, maybe it will be a small little deficit. In March of 2003, a year later, they recalculated $330 billion in the hole. Last month, latest figures, $422 billion in the hole, a deterioration of over $800 billion.

Now, when you use big numbers we like to put them in perspective. You add up everybody's individual income tax. The revenue generated from the individual income tax across America totaled $800 billion. Deterioration in the budget for this year's budget since this administration came in, $800 billion deterioration. That is the number.

When you run up deficits, you run up interest on the national debt. As the gentleman from South Carolina pointed out, the interest on the national debt, because the debt was headed towards zero, interest on the national debt was headed towards zero, but this chart shows the interest on the national debt that we are going to have to pay. In 2009, the difference of what we thought we are going to have to pay and what we have to pay, over $300 billion, and let us put that number in perspective.

At $30,000 each, how many people can you hire with $300 billion? Answer: 10 million. Another question: How many people are drawing unemployment in America today? How many people are unemployed, drawing unemployment today in America? Answer: less than 9 million. You could hire everybody with a $30,000 job that is on unemployment

and have billions of dollars left over with the additional interest on the national debt.

We cannot fund No Child Left Behind for the lack of $9 billion. We cannot fully fund veterans health care the way it should be funded. There are a lot of things we cannot do because we do not have the money. $300 billion, interest on the national debt.

This has national security implications, too, because a lot of that debt is bought by foreign countries, and you cannot negotiate a trade deal with somebody who has got $100 billion of your paper, China, Japan, other countries. It has national security implications. If somebody wanted to start building nuclear weapons and they are buying all of our debt, what kind of negotiations could we have?

Interest on the national debt is run up because of the fiscal irresponsibility of this administration. We were told that we had to go into that kind of fiscal collapse to create jobs. We have heard this administration, and in fact, we had a member of the other party bragging about the success of this administration creating jobs just this afternoon. This chart shows what the actual numbers are, the percentage increase or decrease in jobs, going back to Herbert Hoover. Herbert Hoover lost jobs. Every other administration since then, before this administration, gained jobs. This administration lost jobs.

Now, this is the chart. So that there is no confusion, this is the private sector job growth since Herbert Hoover. Now we will notice before we come up with the excuses that this time frame includes not only World War II and the Korean War and the Vietnam War and the Cold War and the hostages in Iran, Persian Gulf War, Somalia, Grenada, it also includes Pearl Harbor. Everybody back to that period of time created jobs. This administration did not. So 9/11 could not have caused this chart, and neither could the so-called inherited recession.

First of all, let us get the facts straight. The recession started in March 2001, well after this administration had been sworn in, well after they had been elected and their policies were becoming part of the economy, which was reacting to their articulated policies; but whenever it occurred, this chart shows how many jobs you have 40 months after the beginning of a recession. Everybody is up to 3.8 percent, 1.9 percent. 1990 to 1993 is the worst before this administration. Everybody else 2, 3, 4, 7 percent more jobs, 40 months after a recession began until you get to this administration. So whenever this recession started, you cannot blame that recession for the collapse in the economy.

One of the things that we pointed out is that we ought to be saving money because the baby boomers will retire. The blue bars show that we are bringing in more money in Social Security. The Medicare chart shows the same pattern; but after 2017, you will be paying out more money in Social Security than we are bringing in, and you cross the 300 line, that is $300 billion. That is $2,000 for every man, woman and child in America.

Obviously, this is a very challenging chart to deal with until you look at this chart, which shows that if you add up all of the President's tax cuts and reduce them to present value so we know what we are talking about, that is more than the combined total deficit in Social Security plus the combined deficit in Medicare for as far as the eye can see, 75 years or more.

In other words, we had a choice. We could make Social Security and Medicare solvent, or we could cut taxes. We had a choice. It was about the same amount of money. We cut taxes. We created the deficit, and now we do not know how we are going to pay for Social Security and Medicare.

In fact, the GAO produced a chart that answers the question, if you do not change directions you might end up where you are headed. Where are we headed? This chart shows the line across is the revenue coming in at the President's policies. This shows right now we are borrowing money for some Government spending; but by 2040, we will have enough money for the blue, which is interest on the national debt, a little bit of money for Social Security. We will have to borrow the rest of the money for Social Security, no money for Medicare or Medicaid, and no money for the green which is Government spending like defense, transportation and everything else.

Obviously, this is not sustainable. We have to do something and make profound changes in our economy, in our funding, in balancing the budget; and it is not going to be done with rhetoric and constitutional amendments.

We are tomorrow marking up a constitutional amendment to so-called ``balance the budget,'' the balanced budget amendment. What they do not tell you is that the amendment does not require a balanced budget. It just prescribes the method for passing a budget that is not balanced. We had a hearing on that, and we asked the Republican witnesses whether or not it would be more likely or less likely that you would actually have a balanced budget if that legislation was adopted. They could not give a definitive answer to that question.

The fact of the matter is it would make it less likely that you would pass a good deficit reduction plan because you made it more difficult. So even if that legislation were to pass, and it will not because people know what a fraud it is, it will not, but even if it passed, you would still, at some time or another, have to cast the tough votes.

When we were fixing the deficit, eliminating the deficit, we had a rule called PAYGO, pay-go, pay as you go. If you want to increase spending, you have to increase taxes or cut spending to pay for it. If you want to cut taxes, you either have to cut spending or increase somebody else's taxes to pay for it. You could not have any initiative that had an adverse effect on the budget without paying for it.

Well, right after this administration came in, that policy evaporated and they passed tax cuts without paying for it. They passed other programs without paying for it. And all of the red ink, interest on the national debt in this chart, is a direct result of that policy.

Mr. Speaker, if the gentleman will let me respond to the point on jobs, and the gentleman from North Carolina alluded to it, it is absolutely incredible that we could run all this red ink without creating jobs. At least when President Reagan was running up deficits he was creating jobs. It is difficult to cut taxes the way the administration has cut taxes, in those amounts, without creating some jobs. But the taxes they cut were the kinds of taxes that did not stimulate the economy. It only rewarded those in the very upper income, the ones least likely to actually spend it.

If you want to stimulate the economy, give the money to those who will

actually spend it. The gentleman from North Carolina mentioned extending unemployment benefits. People who had jobs, who lost a job and are continuing to look for a job but have not found one yet, their unemployment benefits have run out. If you give them some money, they will spend it right away. If you give a cut on dividends to someone who has substantial stock holdings already, if you cut tax and dividends in half and someone benefits $300, if you do the arithmetic they must have had, on average, $100,000 in stock. Three hundred dollars to them, if they wanted to buy something that cost $300 and they have a $100,000 stock portfolio, they would have already bought it.

If they wanted a television, they would already have bought the television. The $300 tax cut does not stimulate the economy, given there. But if you give it to a family with children, unemployed, low income, they are going to spend the money.

There are a lot of ways you can cut taxes and create many jobs, as President Reagan did, but if you cut the taxes that President Bush cut, which ruined the economy, ruined the budget and lost jobs, it is incredible how you can run up the deficits. And just the interest on the national deficit in 2009, in that year, if we did not have the kinds of increased interest on the national debt, we could hire 10 million people at $30,000 apiece, which would be more than anybody has created in 4 years. Ten million would be setting records. We could do that in 1 year with just the interest, each and every year, with the interest on the national debt that we are going to have to pay over and above what we expected to pay when this administration came in.

And, Mr. Speaker, the most unseemly part of what is going on is, as the interest on the national debt gets bigger and bigger, and, as I earlier indicated, the individual income tax only generates about $800 billion, we are paying $200 billion, $300 billion, $350 billion more in interest on the national debt and growing right at the time when the Social Security Trust Fund is going to be running the big, bigger, and bigger deficits, we have to assume that this administration has no intention of paying Social Security after 2017.

I thank the gentleman.

And the interest on the national debt that has to be paid, people have a sense that when you started charging things on your credit card, the minimum payment does not hurt you too much, until you start running up to where that minimum payment starts hurting. We are paying interest on the national debt at levels that rival the defense budget.

The defense budget this year is what, around $400 billion?

Four hundred twenty billion dollars. The 2009 interest on the national debt is $316 billion over and above what we expected it to be. These are numbers which mean that later on we will not be able to do the kinds of things that we want to do.

We had projected surpluses in the hundreds of billions of dollars, which meant that we would be able to afford health care for the uninsured, education, college education, and veterans' benefits, including health care. The kinds of things that are real priorities. This year's budget did not have enough money in it to maintain present services for our veterans in health care. The veterans' groups wrote letters criticizing what we were doing, and yet we did not have the money because we are running up additional interest on the national debt.

We have a lot of priorities we are not able to meet, and the interest on the national debt gets larger and larger and larger and starts hitting us at exactly the same time when the Social Security surplus evaporates.

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

Mr. Speaker, I ask the gentleman if this is the same bill that was reported from committee, because there were other drafts floating around in the last couple of days.

I yield to the gentleman from Wisconsin.

Reclaiming my time, Mr. Speaker, I oppose the legislation that is drafted. H.R. 3369 provides immunity for nonprofit athletic organizations from lawsuits in the adoption of rules for sanctioned or approved athletic competitions or practices. This legislation would virtually eliminate any valid claims from being brought forth.

Specifically, the legislation does not differentiate between meritorious lawsuits and frivolous lawsuits. H.R. 3369 prohibits civil litigation of any grievance arising under the rules promulgated by the nonprofit sporting organization. It exempts the athletic organization from liability for harm caused by an act or omission of the adoption of rules for sanctioned or approved athletic competitions or practices if the organization was acting within the scope of its duties, the organization was properly licensed, certified or authorized for the competition or practice, and the harm was not caused by the organization's willful or criminal misconduct, gross negligence, or reckless misconduct.

So while lawsuits filed by parents because their child was not put on a team may rightly be dismissed, cases with legal merit such as a rule that endangers the life of a child would also be dismissed.

In effect, this legislation would effectively bar them from their day in court, and H.R. 3369 would dramatically obstruct valid discrimination claims or other kinds of discrimination claims against such athletic organizations. Such lawsuits call attention to public safety hazards and discriminatory acts and need to be available for litigation to protect our Nation's children.

As drafted, the broad immunity H.R. 3369 extends to nonprofit organizations reaches far beyond the potential for frivolous lawsuits in our Federal judicial system. H.R. 3369 prohibits civil litigation of any grievance arising out of the rules promulgated by nonprofit organizations.

As drafted, this legislation is so broad that it would bar legitimate issues from being brought forth. Thus, such cases as discrimination, antitrust, labor, environmental and other important claims would not be allowed to go forward.

Additionally, H.R. 3369 protects the right of a nonprofit organization to sue others. If the legislation is designed to suppress unnecessary litigation altogether, how is an organization's grievance legitimate but individual complaints are not?

Written to suppress only the outlets available for individual citizens, this legislation simply overreaches. It is the height of hypocrisy to suggest that these organizations should be allowed to have their day in court while limiting the ability of individual athletes and others to hold them accountable.

Mr. Speaker, previous immunity statutes like this would immunize coaches, volunteers and board members, but the injured party, somebody injured through no fault of their own, would have recourse against the organization.

This bill leaves the injured party without any recourse at all.

There are serious problems with this legislation, so I would urge my colleagues to oppose the bill.

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

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

(Mr. SCOTT of Virginia asked and was given permission to revise and extend his remarks, and include extraneous material.)

Mr. Speaker, the gentleman has made all these statements that somebody can sue, somebody can sue, somebody can sue. What he has not related is anyone who has filed suit and actually recovered a judgment.

I would like to introduce for the Record at this point a letter from the Leadership Conference on Civil Rights which outlines several civil rights claims that would be barred by this legislation.

September 13, 2004.

Dear Representative: On behalf of the Leadership Conference

on Civil Rights (LCCR), the nation's oldest, largest, and

most diverse civil rights coalition representing people of

color, women, children, older Americans, persons with

disabilities, gays and lesbians, major religious

organizations, labor unions, and civil and human rights

groups, we urge you to vote against H.R. 3369, the

``Nonprofit Athletic Organization Protection Act of 2003.''

If enacted, this bill could set a dangerous precedent for the

enforcement of civil rights laws generally and could

specifically allow nonprofit athletic organizations to evade

civil rights laws and unlawfully discriminate on the basis of

race, sex, disability, or other characteristics protected by

federal and/or state law.

While the preamble suggests that the bill's intent is to

protect nonprofit athletic organizations from liability

arising from claims of ordinary negligence relating to the

adoption of rules for competitions/practices, the actual text

of the bill is much broader and creates the risk that such

organizations could evade their obligations under laws

unrelated to negligence, such as federal and state civil

rights laws. More specifically, the bill provides that ``a

nonprofit athletic organization [which includes the

employees, agents, and volunteers of such organization] shall

not be liable for harm caused by an act or omission of the .

. . organization in the adoption of rules for sanction or

approved athletic competitions or practices. . . . This

language creates the risk of eliminating valid discrimination

claims such as those found in the following cases:

In Cureton v. NCAA, a class action lawsuit filed by

African-American student athletes challenged the National

Collegiate Athletic Association's rule requiring all

potential student-athletes to achieve a minimum score on the

SAT or the ACT as having a disparate impact on African-

American students, in

violation of Title VI of the Civil Rights Act of 1964. Early

on, the Educational Testing Services (ETS), which designed

the SAT, criticized the NCAA's then-proposed use of a fixed

cut-off score and warned that such a rule would have such a

disproportionate impact, and it did. But only in the face of

a lawsuit did the NCAA change its rule so that student

athletes could be eligible for Division I schools on the

basis of their grades, not just their test scores.

In Michigan High School Athletic Association v. Communities

for Equity, federal district and appellate courts in the

Sixth Circuit have ruled that the state high school athletic

association's practice of scheduling six girls' sports,

and no boys' sports, in nontraditional and/or

disadvantageous seasons discriminated against female

athletes in violation of Title IX of the Education

Amendments of 1972 and the U.S. Constitution. The court

found that the association's scheduling decisions harmed

girls by limiting their opportunities for athletic

scholarships and collegiate recruitment, limiting their

opportunities to play in club or Olympic development

programs, and causing them to miss opportunities for

awards and recognition.

In PGA Tour, Inc. v. Martin, the U.S. Supreme Court ruled

that the Americans with Disabilities Act requires the PGA

Tour to allow professional golfer Casey Martin, who suffers

from a circulatory disorder making it painful to walk long

distances, to ride in a golf cart between shots at Tour

events. The nonprofit PGA had ruled that walking the course

in an integral part of golf, and Martin would gain an unfair

advantage using the cart. In a 7-2 decision, the Supreme

Court decided that the PGA could not deny Martin equal access

to its tours on the basis of his disability.

In addition, H.R. 3369 allows nonprofit athletic

organizations to sue, but not be sued. It is the height of

hypocrisy to suggest that these organizations should be

allowed to have their day in court while limiting the ability

of individual athletes and others to hold them accountable.

Finally, the bill preempts state law that provides less

liability protection to nonprofit athletic organizations but

not state law that gives additional protection to nonprofit

athletic organizations. There is no need for Congress to

preempt state law at all. If states want to protect certain

state athletic organizations, they can do so right now

without any action by Congress.

While we understand that those who oppose this bill might

be accused of fueling litigation, we urge you to consider the

risk that this bill could be used to exempt nonprofit

athletic organizations, which exercise control over the lives

of student-athletes, coaches, and many others, from treating

these individuals fairly and in accordance with our nation's

civil rights laws. Moreover, this bill would create

additional litigation regarding who is covered by the bill

and what types of claims it precludes.

LCCR strongly urges you to oppose the ``Nonprofit Athletic

Organization Protection Act of 2003.'' If you have any

questions, or would like additional information, please

contact Nancy Zirkin at 202/263-2880, or Julie Fernandes,

Senior Policy Analyst, at 202/263-2856.

Thank you in advance for your support.

Sincerely,

Wade Henderson,

Executive Director.

Nancy Zirkin,

Deputy Director.

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

Mr. Speaker, I yield 3 minutes to the gentlewoman from Texas (Ms. Jackson-Lee).

(Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)

Mr. Speaker, can you tell us how much time remains on both sides?

Mr. Speaker, I yield 3 minutes to the gentlewoman from California (Ms. Woolsey).

Mr. Speaker, I yield myself such time as I may consume, and I would point out to the gentleman from Indiana that I would assume that anyone who has been immunized from liability would support the legislation. I would like to see a list of people who have been injured by negligence, victims of discrimination, victims of violations of labor law. Let us get some of those to see what they think about it.

Mr. Speaker, as I said, we have immunized the volunteers, so in terms of running the organization, the volunteers have been immunized. A lot of places do not have problems with insurance. This mandates there is a blanket for everybody, State, local, everybody else, whether there are insurance problems or not.

We hear so much from the other side about States rights. Well, here we are, whether there is a problem in the State or not, here we come with a Federal mandate changing all their tort laws. Whether or not you disagree or agree with the Americans for Disabilities Act, or whether you agree or disagree with civil rights laws or labor laws, people ought to have the right to bring these cases in appropriate circumstances. Otherwise, the agency has no responsibility in any of these areas.

Now, accidents happen. We are not talking about accidents. What we are talking about is when an organization violates good common sense and someone is injured as a direct result of negligence. Should there be a recourse? Who should be responsible for the damage? If there is insurance, if you can get insurance, then certainly you should not immunize everybody. This can be done on a State-by-State basis. If Indiana cannot get insurance, then maybe Indiana can deal with that the best way Indiana feels Indiana can deal with it. If Virginia wants to deal with it in a different way, they can deal with it in a different way based on the availability of insurance.

But, Mr. Speaker, this bill goes too far. It immunizes more than is needed and it immunizes more causes of action. Now, the gentleman has talked about what kinds of negotiations were going back and forth. That is true. But we are not talking about the negotiations, we are talking about what is in the bill. The fact is, because of what is in the bill discrimination cases are thrown out; because of the bill, labor disputes are thrown out; all kinds of Americans with disabilities and everything else are thrown out because of the legislation. It is clearly overbroad and should be defeated.

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

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

Mr. Speaker, I oppose this legislation. While I salute the hard work of our volunteer firefighters, it appears to me we have before us a very extreme solution to a problem that does not exist. Although H.R. 1787 is supposed to encourage donation of firefighting equipment by eliminating civil liability barriers, there are no reported cases of businesses refusing to donate equipment, nor cases of volunteer firefighting companies suing their donors. The so-called problem could be solved without congressional action.

First, we heard during our committee deliberations that a volunteer fire department could simply sign a contract waiving liability of the donors from negligence resulted from the donated firefighting equipment. This tactic would ensure that fire companies are informed and have consented to the immunity of the donor. We do not have to mandate the immunity. They can agree to it if they want or if the donor insists.

Furthermore, Mr. Speaker, this is not a Federal issue. It is a matter that can be dealt with by the States. There is nothing Federal about local volunteer fire departments. This liability issue is a State issue, and the gentleman from Wisconsin (Mr. Sensenbrenner) has pointed out that many States have already dealt with the issue on a State basis. Companies should not be given blanket immunity for donating fire equipment. While it may be true that most of the equipment is perfectly usable, companies should be prevented from donating obsolete equipment known to be of dubious safety. Certain equipment, like protective gear and breathing apparatus, can deteriorate over time and may not be suitable for reuse.

With all of the other pertinent issues we have before Congress, I find it problematic that we are focusing our attention and problems on something that is frankly not a problem. I urge my colleagues to reject this bill which may in fact endanger firefighters.

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

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

Mr. Speaker, as I understand it, the threat of civil liability causes some to think twice about donating dangerous equipment, equipment which may place our firefighters in danger. If this bill passes, they will not have to be concerned about donating dangerous equipment. I am not sure that is a good thing. I would hope that we would defeat the bill, allow the volunteer firefighters to waive liability if they see fit, but not impose this mandated waiver on everybody whether they want it or not.

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

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

Mr. Speaker, unlike many of the others, this bill is narrowly drawn, and it is my understanding, and my colleague from Virginia, I think, can correct me if I am wrong, but the usual problem we have in this case is you have an injured party without any recourse at all.

This bill requires insurance on the part of the pilot. And so if there is negligence, the injured party does have recourse. He has recourse against the insurance policy, but he does not have recourse, in the bill, to the organization, the volunteer organization that just matched the pilot and the injured party together, so that the party, injured through ordinary negligence, would have recourse against the insurance policy covering the airplane and the pilot.

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

Mr. Speaker, I yield 6 minutes to the gentlewoman from Texas (Ms. Jackson-Lee).

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

This bill is narrowly drawn and is different from the other bills because victims of negligence will have recourse. It is similar to Good Samaritan State laws that immunize volunteers but fails to immunize them from automobile accidents because there is an expectation that the automobile will have insurance. So victims of the negligence will have recourse.

This bill requires insurance so victims, either on the plane or on the ground, will have recourse against the insurance policy but not against the volunteer organization. That is an appropriate balance, and I support the legislation.

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

Mr. Speaker, I yield myself such time as I may consume, and I rise to speak against the bill

Mr. Speaker, I do not support the legislation because it will have a significant adverse effect on the ability of unpopular plaintiffs to seek recourse in our courts, and it will operate to benefit foreign corporate defendants at the expense of domestic counterparts and will skew the playing field against injured victims.

Now, a lot of organizations oppose the bill, and I would like to read from a letter from the Judicial Conference of the United States, the Chief Justice of the United States presiding, in a letter to the committee chairman.

It says that ``section 2 of the bill would reinstitute a rule eliminated in 1993 upon the recommendation of the Judicial Conference, approved by the Supreme Court, and after review by Congress, because of the serious problems it engendered during a 10-year period of operation. Section 2 also would amend rule 11 of the Federal Rules of Civil Procedure in a manner consistent with the longstanding Judicial Conference policy opposing direct amendment of the Federal rules by legislation.''

The letter goes on to say that the bill ``would directly amend civil rule 11 to remove a court's discretion to impose sanctions on a frivolous filing and eliminate the rule's `safe-harbor' provisions. The bill undoes amendments to rule 11 that took effect on December 1, 1993, and would bring back the provisions that were first introduced in 1983

and removed from the rule in 1993, after a decade of signally bad experiences with the operation and effects of the 1983 rule.''

The Judicial Conference of the United States goes on to state: ``Like H.R. 4571, the 1983 version of rule 11 required sanctions for every violation of the rule. It spawned thousands of court decisions and generated widespread criticism. The rule was abused by resourceful lawyers, and an entire `cottage industry' developed that churned tremendously wasteful satellite litigation that had everything to do with strategic gamesmanship and little to do with underlying claims. Rule 11 motions came to be met with countermotions that sought rule 11 sanctions for making the original rule 11 motion.

``Some of the serious problems caused by the 1983 amendments to rule 11 included:

``Creating a significant incentive to file unmeritorious rule 11 motions by providing a possibility of monetary penalty.''

It goes on to cite other problems that occurred that were cured in 1993. The letter goes on: ``The 1993 amendments to rule 11 were designed to strike a fair and equitable balance between competing interests, remedy the major problems with the rule, and allow courts to focus on the merits of the underlying cases rather than on rule 11 motions.''

It goes on to say that the ``experience with the amended rule since 1993 has demonstrated a marked decline in rule 11 satellite litigation without any noticeable increase in the number of frivolous filings. In June 1995, the Federal Judicial Center conducted a survey of 1,130 lawyers and 148 judges on the effects of the 1993 rule 11 amendments . . . The Center found general satisfaction with the amended rule. It also found that more than 75 percent of the judges and lawyers would oppose a provision that would require a court to impose a sanction when the rule is violated. A majority of the judges and lawyers, both plaintiffs' and defendants' lawyers, believed that groundless litigation was handled effectively by judges.

``Undoing the 1993 rule 11 amendments, even though no serious problem has been brought to the Judicial Conference rules committee's attention, would frustrate the purpose and intent of the Rules Enabling Act.''

It goes on to criticize the provisions in section 3, the mandatory application to State laws, and section 4, the provision on forum shopping.

Mr. Speaker, in addition to the Judicial Conference, other organizations oppose the legislation. The NAACP, the Public Citizen, the Alliance for Justice, People for the American Way, the American Association of People with Disabilities, the Lawyers' Committee for Civil Rights Under Law, the American Bar Association, the National Conference of State Legislatures, National Partnership for Women, National Women's Law Center, the Center for Justice and Democracy, Consumers Union, National Association of Consumer Advocates, USAction, U.S. PIRG, and the NAACP Legal Defense Fund all oppose the legislation.

Mr. Speaker, one of the additional problems with the bill is the chilling effect it may have on bringing important, legitimate, unpopular actions. This is due to the fact that much of the impetus of the 1993 changes stemmed from abuses by defendants in civil rights cases, namely, that civil rights defendants were choosing to harass civil rights plaintiffs by filing a series of rule 11 motions intended to slow down and impede meritorious cases.

Although the bill states that the proposed rule 11 changes shall not be construed to ``bar or impede the assertion of new claims or remedies under Federal, State or local civil rights law,'' the language does not clearly and simply exempt civil rights and discrimination cases under current law, as should be the case. Determining what a new claim or remedy might be would just add to the litigation.

Certainly, it does not cover the fact that this bill and rule 11 do not offer an attorney the ability to appeal a rule 11 sanction. History has demonstrated that civil rights lawsuits are often extremely unpopular, particularly in certain parts of the country where some judges almost automatically consider civil rights cases as frivolous. In such courts, plaintiffs' attorneys could be unreasonably subject to sanctions, even suspensions, without appeal contrary to the purpose of rule 11.

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

Mr. Speaker, I yield myself such time as I may consume to comment that the letter from the Judicial Conference of the United States outlining the survey results, showed a majority of judges, lawyers, both plaintiffs and defense lawyers, believed that groundless litigation was handled effectively by the judges and preferred the 1993 amendment.

Mr. Speaker, I submit herewith the letter from the Judicial Conference for the Record.

Judicial Conference of

the United States,

Washington, DC, July 9, 2004.

Hon. F. James Sensenbrenner, Jr.,

Chairman, Committee on the Judiciary, House of

Representatives, 2138 Rayburn House Office Building,

Washington, DC.

Dear Mr. Chairman: On behalf of the Judicial Conference, I

write to urge you to reconsider your position on the

``Lawsuit Abuse Reduction Act of 2004'' (H.R. 4571). [Section

2 of the bill would reinstitute a rule eliminated in 1993

upon the recommendation of the Judicial Conference, approval

by the Supreme Court, and after review by Congress, because

of the serious problems it engendered during a ten-year

period of operation. Section 2 also would amend Rule 11 of

the Federal Rules of Civil Procedure in a manner inconsistent

with the longstanding Judicial Conference [policy opposing

direct amendment of the federal rules by legislation.]

Section 3 of H.R. 4571 would apply the revised federal Rule

11 to certain state court actions, while section 4 would

amend the venue standards governing the filing of tort

actions in both the federal and state courts: Sections 3 and

4 implicate federal-state comity interests and raise

important policy and practical concerns.

section 2

[Section 2 would directly amend Civil Rule 11 to remove a

court's discretion to impose sanctions on a frivolous filing

and eliminate the rule's ``safe-harbor'' provisions. The bill

undoes amendments to Rule 11 that took effect on December 1,

1993, and would bring back the provisions that were first

introduced in 1983 and removed from the rule in 1993, after a

decade of signally bad experiences with the operation and

effects of the 1983 rule.

Like H.R. 4571, the 1983 version of Rule 11 required

sanctions for every violation of the rule. It spawned

thousands of court decisions and generated widespread

criticism. The rule was abused by resourceful lawyers, and an

entire ``cottage industry'' developed that churned

tremendously wasteful satellite litigation that had

everything to do with strategic gamesmanship and little to do

with underlying claims. Rule 11 motions came to be met with

counter motions that sought Rule 11 sanctions for making the

original Rule 11 motion.

[Some of the other serious problems caused by the 1983

amendments to Rule 11 included:

(1) Creating a significant incentive to file unmeritorious

Rule 11 motions by providing a possibility of monetary

penalty;

(2) engendering potential conflict of interest between

clients and their lawyers, who advised withdrawal of

particular claims despite the clients' preference;

(3) exacerbating tensions between lawyers; and

(4) providing little incentive, and perhaps a distinctive

disincentive, to abandon or withdraw a pleading or claim--and

thereby admit error--that lacked merit after determining that

it no longer was supportable in law or fact.

The 1993 amendments to Rule 11 were designed to strike a

fair and equitable balance between competing interests,

remedy the major problems with the rule, and allow courts to

focus on the merits of the underlying cases rather than on

Rule 11 motions. The rule establishes a safe harbor,

providing a party 21 days within which to withdraw a

particular claim or defense before sanctions can be imposed.

If the party fails to withdraw an allegedly frivolous claim

or defense within the 21 days, a court may impose sanctions,

including assessing reasonable attorney fees.] The 1983 Rule

11 authorized a court to sanction discovery-related abuse

under Rule 11, Rule 26(g), or Rule 37, which created

confusion. Under the 1993 amendments to Rule 11, sanctioning

of discovery-related abuse was limited to Rules 26 and 37,

which provide for sanctions that include awards for

reasonable attorney fees.

The 1993 amendments to Rule 11 culminated a long, critical

examination of the rule begun four years earlier. The

Advisory Committee on Civil Rules (Advisory Committee)

reviewed a significant number of empirical examinations of

the 1983 Rule 11, including three separate studies conducted

by the Federal Judicial Center in 1985, 1988, and 1991, a

Third Circuit Task Force report on Rule 11 in 1989, and a New

York State Bar Committee report in 1987. The Advisory

Committee took note of several book-length analyses of Rule

11 case law.

The 1991 Federal Judicial Center survey noted that most

federal judges believed that the 1983 version of Rule 11 had

positive effects. But the study also noted that most judges

found several other methods more effective than Rule 11 in

handling such litigation and, most significantly, that about

one-half of the judges reported that Rule 11 exacerbates

behavior between counsel. After reviewing the literature and

empirical studies of problems caused by the 1983 amendments

to Rule 11, the Advisory Committee issued in 1990 a

preliminary call for general comment on the operation and

effect of the rule. The response was substantial, calling for

a change in the rule.

The Advisory Committee concluded that the cost-shifting in

Rule 11 created an incentive for too many unnecessary Rule 11

motions. Amendments to Rule 11 were drafted. The Supreme

Court promulgated and transmitted the amendments to Congress

in May 1993 after extensive scrutiny and debate by the bench,

bar, and public in accordance with the Rules Enabling Act

process (28 U.S.C. Sec. Sec. 2071-2077).

[Experience with the amended rule since 1993 has

demonstrated a marked decline in Rule 11 satellite litigation

without any noticeable increase in the number of frivolous

filings. In June 1995, the Federal Judicial Center conducted

a survey of 1,130 lawyers and 148 judges on the effects of

the 1993 Rule 11 amendments. About 580 attorneys and 120

judges responded to the survey. The Center found general

satisfaction with the amended rule. It also found that more

than 75 percent of the judges and lawyers would oppose a

provision that would require a court to impose a sanction

when the rule is violated. A majority of the judges and

lawyers, both plaintiffs' and defendants' lawyers, believed

that groundless litigation was handled effectively by judges.

Undoing the 1993 Rule 11 amendments, even though no serious

problem has been brought to the Judicial Conference rules

committees' attention, would frustrate the purpose and intent

of the Rules Enabling Act. Section 2 of H.R. 4571 would

effectively reinstate the 1983 version of Rule 11 that proved

so contentious and wasted so much time and energy of the bar

and bench. Section 2, indeed, in some ways seems to go beyond

the provisions that created serious problems with the 1983

rule. It may cause even greater mischief. Rule 11 in its

present form has proven effective and should not be revised.]

sections 3 and 4

[Section 3 would extend the new requirements of a mandatory

Rule 11 to all state court litigation that the state court

deems, on motion, to affect interstate commerce.] Two

features of this provision stand out. First, it would

directly regulate the practice and procedure of state courts,

mandating a federal standard for the imposition of sanctions

for the filing of frivolous or

ungrounded complaints and other papers in state court. At

present, states have been free to adopt their own rules of

practice, including a version of Rule 11, if a state so

chooses. Second, section 3 does not specify the actions to

which it would apply. Rather, it imposes on state judges a

broad generalized test to determine whether or not federal

Rule 11 would apply in a given case. If enacted, this section

could affect the cost and duration of a very large number of

civil actions in state courts.

[Section 4 seeks to prevent forum shopping by specifying

the places where a plaintiff may bring a ``personal injury''

claim by imposing a federal standard for determining the

venue of state law personal injury claims, in both state and

federal court. Such a federal standard would displace

existing state venue rules or statutes.] It would also

significantly alter the statutes in title 28, United States

Code, that now govern venue (section 1391) and transfer of

venue (section 1404) in the federal courts.

The Judicial Conference opposes the enactment of H.R. 4571

for the reasons stated above as to section 2. Sections 3 and

4 would make important changes in the administration of civil

justice in both federal and state courts. The Judicial

Conference has not had the opportunity to formally assess the

advisability or impact of these sections, but notes that they

may substantially affect federal-state comity interests and

raise important policy and practical concerns.

The Judicial Conference greatly appreciates your

consideration of its views: If you or your staff have any

questions, please contact Michael W. Blommer, Assistant

Director, Office of Legislative Affairs, Administrative

Office of the U.S. Courts, at (202) 502-1700.

Sincerely,

Leonidas Ralph Mecham,

Secretary.

Mr. Speaker, I yield 4 minutes to the gentleman from California (Mr. BERMAN).

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

Mr. Speaker, I yield 4 minutes to the gentleman from North Carolina (Mr. Watt).

Mr. Speaker, I yield 4 minutes to the gentlewoman from California (Ms. Waters).

Mr. Speaker, I yield 4 minutes to the gentlewoman from Texas (Ms. Jackson-Lee).

Mr. Speaker, I yield 4\1/2\ minutes to the gentleman from Massachusetts (Mr. Markey).

Mr. Speaker, I yield 2 minutes to the gentleman from Washington (Mr. Inslee).

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

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

Mr. Speaker, as it has been indicated, there is a serious question in some cases of whether or not the forum shopping is limited, one, to a situation where they cannot file anywhere. But I want to quote from a letter from several civil rights organizations. It states: ``More than a decade ago civil rights organizations, including several of the undersigned organizations, worked to amend Rule 11 because the old rule unfairly discouraged meritorious civil rights claims. Nationwide surveys about the former rule found that motions for sanctions were most frequently sought and granted in civil rights cases.'' This bill ``seeks to take us back to the changes made in 1993 to Rule 11 and force litigants to operate under the terms that we fear, like the former rule we worked so hard to amend, will be used to punish and deter valid claims of discrimination. But'' this bill ``goes even further. Not content with changing rules for Federal courts, the bill extends its reach to State courts,'' where the problem of biased judges would even be more acute.

I would point out again that there is no appeal to these cases and this does not apply to cases under existing law that many judges feel are frivolous.

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

Mr. Speaker, I thank the gentleman for yielding me time.

Mr. Speaker, there is a significant difference in the civil rights exemption in the underlying bill and this amendment. This amendment is vastly superior because it exempts all civil rights cases, not just those cases that are based on new or evolving law. Many of the cases brought under present laws are treated with hostility. Civil rights cases are often unpopular and some judges do not like to see them.

In fact, the Alliance For Justice had a report on Judge Pickering's hearing and said, ``At his hearing, Judge Pickering was asked about his record of strongly favoring defendants in employment cases. Incredibly, Judge Pickering defended his record by opining that almost no employment discrimination cases that come before the Federal courts have merit.''

Obviously, the problem is made worse when you expand the possibility to State courts, where local judges in some areas may have a civil bias. That is why the civil rights lawyers oppose the underlying bill because they do not want those kind of judges empowered to essentially allow mandatory sanctions to prevent those kind of cases from being brought in the first place.

I would hope that we would adopt the language in the substitute, but we should defeat the bill.

Mr. Chairman, I have a parliamentary inquiry. Mr. Chairman, was that section 636?

Mr. Speaker, I rise in opposition to this bill. It is an attack on fundamental rights and unconstitutionally exceeds the power of this body to regulate the judicial branch of government.

Within our constitutional framework, although Congress is expected to follow the Constitution, it is not for Congress to make the final decision as to what is constitutional and what is not. Since Marbury v. Madison in 1803, at least until today, there has been a longstanding acceptance of the principle that the United States Supreme Court is the final arbiter of what is constitutional and what is not. And although Congress has some power to regulate the jurisdiction of Federal courts, it cannot totally prevent the Supreme Court from ensuring that States comply with the Constitution.

Mr. Speaker, this bill not only violates numerous constitutional principles; it is dangerous policy. If this bill were found to be constitutional, there would be no prohibition against boilerplate language stuck into every bill we consider, stripping judicial review from every controversial issue.

Frankly, I am glad that this kind of legislation did not pass before 1954 so Congress did not strip the Supreme Court from jurisdiction over segregation in public schools, or before the 1960s when unelected, lifetime-appointed activist Federal judges required Virginia to recognize racially mixed marriages, overruling the will of the people of Virginia.

If this bill ever became law, there would be no Federal law. Some States would rule that DOMA is constitutional. Other States would rule that DOMA is unconstitutional. States will adopt full faith and credit principles in some areas and not in others. A Massachusetts or Vermont couple moving to another State may have their relationship recognized in some States, but not in others. If this bill passes, each State will decide for itself what the Federal law is. Even if it passes, some States will recognize same-sex marriages.

Mr. Speaker, simply because we anticipate that we may not like how the Supreme Court will rule on an issue is no reason to prevent the court from ruling. Today, some Members of Congress are afraid of how courts may rule on issues pertaining to marriage. Tomorrow they may be afraid of how the courts may rule on a different issue, such as abortion or gun control. If we strip the jurisdiction of the Supreme Court over the Defense of Marriage Act, what will we do next?

Mr. Speaker, this unprecedented and perilous legislation violates constitutional principles, establishes dangerous procedure, and undermines the credibility of our system of government. For these reasons, Mr. Speaker, I urge my colleagues to oppose the bill.

Mr. Chairman, I rise in support of the amendment.

Mr. Chairman, I rise in support of the amendment offered by my colleague, the gentleman from Idaho, of which I am a co-sponsor.

The Fourth Amendment provides that ``The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.''

The Fourth Amendment's protections against unreasonable searches and seizures are put into practice, in part, by the Federal Rules of Criminal Procedure. Rule 41 specifically requires the government to obtain a warrant before a search is conducted. It also requires that the government give notice to a person whose property was seized during a search, or from whose premises property was seized. And the Supreme Court has traditionally held that an officer must knock and announce his presence before serving a search warrant, absent exigent circumstances such as reasonable belief such notice would jeopardize life or limb, or result in destruction of evidence or escape of the person named in the warrant. Moreover, while delayed notice for searches of oral and wire communications are authorized by law under certain conditions, as a general rule, covert physical searches for physical evidence were not permitted prior to the PATRIOT Act.

The notice requirement enables the person whose property is to be searched to assert his or her Fourth Amendment rights by pointing out irregularities such as the police have the wrong address, or ensuring that only those areas specified are searched, if the area to be searched is a room in a house, that does not include the car in the garage.

The so called ``sneak and peek'' secret search warrant provision allows law enforcement to conduct a secret search on a person's

premises or computer without notice. If they get the wrong house or business and it happens to be yours, you may never know about it. Or if the search is conducted improperly, but nothing incriminating is found, you may never know about it. Sneak and peek warrants provide no sanction for failure to notify the subject of the search or for unlawful activity if nobody is aware of it and if no incriminating evidence is found. Law enforcement personnel will need to validate a search only when property is seized and then delayed notice must be given. Meanwhile, the notice can be weeks or even months after the fact. And in that time period, several searches may have been conducted without any results or continuing justification.

Moreover, this gives law enforcement officials access to someone's personal property and information without the person's knowledge. Law enforcement personnel can search through your drawers, go through your files including medical and financial records, read your diaries, and surf through computer websites you have visited, just to name a few invasive practices. The person conducting the search will have access to very private, very personal, information about you and your family, without your knowledge. And what if the government agent conducting the search happens to be your neighbor or someone you see at the store or at a PTA meeting? Without your knowledge, that person has continuing access to--and knows the most intimate of details about--your life. This level of privacy invasion is unjustifiable.

Preventing terrorism has become a more urgent and necessary goal of law enforcement since the 9/11 tragedies. Yet, we don't want to accomplish for the terrorists something they could not accomplish themselves--reducing the rights, freedoms, and protections our system provides us all. The Otter amendment finds a working middle-ground that will satisfy our country's need for heightened security while at the same time ensuring that our freedoms and protections remain intact. The amendment limits the reasons for sneak and peek warrants to three specific circumstances, when notice would cause either the life or physical safety of a person to be put in danger, flight from prosecution, or the destruction of evidence. It also includes a seven- day time limit for the delayed notice. This time limit creates a pattern of uniformity for those involved in law enforcement and is a reasonable period by which to inform the person subject to the warrant of the clandestine search. In the case where a court finds that notice of the warrant within the seven-day period will lead to one of the three enunciated circumstances, the amendment authorizes unlimited additional seven-day delays. This amendment encourages use of these warrants in appropriate circumstances, will prevent misuse of the practice, and ensures the protection of our civil liberties.

Encouraging the judiciary to issue sneak and peek warrants without offering any meaningful guidance on their use will end in disaster. This amendment is unequivocally American. It recognizes the need to protect our country and our selves. It gives meaning to Section 213 of the PATRIOT Act within the parameters of our democracy so that it can be an effective tool rather than a wasted provision.

Mr. Chairman, safeguarding the rights guaranteed to us by the Constitution is not a partisan issue. I ask my colleagues to join me in support of this essential legislation to protect the rights of all Americans.

Point of Order

Mr. Speaker, today I am introducing the Literacy, Education and Rehabilitation Act (LERA). The purpose of LERA is to reduce recidivism and the victimization and costs, fiscal and social, associated with such recidivism. Studies have shown that inmate participation in education, vocational and job training, prison work skills development, drug abuse, mental health and other treatment programs, all reduce recidivism, significantly.

The Federal prison population has increased more than 7-fold over the past 20 years. In 1984, the population was about 25,000 prisoners. Today, there are more than 175,000 prisoners, and the population is growing. According to the Federal Bureau of Prisons (BOP), the primary reasons for this tremendous growth has been longer sentences resulting from the 1984 Sentencing Reform Act and mandatory minimum sentences. The Sentencing Reform Act established determinate sentencing, abolished parole, and dramatically reduced good time credits. Other sentencing policy by Congressional or administrative action has increasingly limited the discretion of judges and prison officials to impact sentence lengths or confinement options.

During the same period, the annual number of prisoners returning to communities has also increased several fold. Currently, about 40,000 prisoners leave Federal prisons each year. The question is whether they leave prison better prepared to lead law-abiding lives, or in a worse position to do so. The addition of a felony record and a Federal prison stay is not, in and of itself, likely to add to a person's job or social development prospects.

Unfortunately, the elimination of incentives such as parole, good time credits and funding for college courses, means that fewer inmates participate in and excel in literacy, education, treatment and other development programs. LERA provides incentives and recognitions for achievement by giving the BOP Director the discretion to grant up to 60 sentence credit days per year to an inmate for successful participation in literacy, education, work training, treatment and other development programs. LERA will not only prevent crime victimizations, but also save taxpayers money. Many sentences are excessively long because mandatory sentencing policies do not allow sentencing judges the discretion to distinguish between hardened criminals and those amenable to rehabilitation and preparation for successful re-entry. LERA allows offenders to distinguish themselves.

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

We have heard a lot of people say the budget is good. We have heard some people say it is bad. We have heard some people casting blame, and we have heard some people making excuses. I think it is just helpful to start off with what the facts are.

This is a chart showing the deficit back to the Johnson administration, a little bit of deficit, Nixon, Ford, Carter, Reagan and Bush deficit, Clinton from deficit to surplus, Bush deficit. The swing from the surplus to the deficit, $750 billion.

Now, let us put that in perspective. If we look at the revenue, individual income tax, what everybody pays in individual income tax, $800 billion; deterioration in the deficit, 750. Now, when we run up that kind of debt, we run up interest in the national debt. This is the chart that showed that by 2009, we would be paying virtually nothing in interest on the national debt because we had enough surplus to pay off the national debt. This chart shows that we are going to be paying $300 billion a year in interest in the national debt, $300 billion. At $30,000 each, that is enough to hire 10 million people, more than the total number of people drawing unemployment today.

We said we got into that mess to create jobs. This is the chart showing the average job growth, Ford administration back to the Hoover administration. Everybody is net plus until we get to this administration. People look at this chart and say the job growth is good, job growth is bad. Make your own decision.

Mr. Chairman, I thank the gentleman for yielding me this time.

This amendment points out the difficulty in the one-way PAYGO. If we have a crunch, we can only deal with it by cutting spending. We cannot deal with it any other kind of way. With the one-way PAYGO, if we want to deal with the problem through tax cuts, if we have health care we want to deliver, we can do it in tax cuts. Just give tax credits. There is no limit to what we can do. But if we have a crunch and the budget is tight, we have got to have this mindless across-the-board cut. If we do it through tax cuts, we could have tax cuts at the same time that we are cutting the spending.

This is what happens when we have a two-way PAYGO, that is, if we are going to cut taxes, we have to cut spending. If we increase spending, we have got to raise taxes or any combination. The green was with PAYGO; the red is what happens when we have unlimited tax cuts with PAYGO. This just says we have got to cut mindlessly across the board with spending. If we have a crunch and we have a new need, we cannot make it; we cannot meet it. If we want to meet it, the only way we can do it is through some tax plan where we are unlimited. But if we have a new program, if there is a housing need, if there is a health care need, something new we want to do, we cannot do it. This is why we need a two-way PAYGO and a more sensible way to deal with our budget, not mindless across-the-board tax cuts.

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

Mr. Speaker, I rise in support of the resolution which honors the 40th anniversary of the Civil Rights Act of 1964 and the many civil rights advances since its enactment.

I want to first commend our colleague, the gentlewoman from the District of Columbia, for introducing the resolution. I also want the record to reflect her long efforts to make real the promise of our civil rights laws as Chair of the Equal Employment Opportunity Commission, working with the New York Human Rights Commission as a legal scholar, and a distinguished Member of this House.

It is difficult to overstate the importance of the Civil Rights Act. It is a monumental achievement, reflecting the best values of this Nation: equality, fairness, and respect for the dignity of all people. No one should forget how difficult it was to get this legislation through, how hard the forces of bigotry fought its passage, how strong the resistance was, and still is, to its enforcement.

Reflecting on these past achievements should be an occasion, most of all, for us to learn from the past and to remember that our society has changed for the better. We can be more inclusive. We can fight Big Industry. We can continue our progress as a Nation toward the promise that all people are created equal and that our Nation will treat every person in that spirit.

The resolution notes that the struggle did not end with this watershed legislation. Rather, it marks an important milestone in the fight against discrimination.

Today, as our Nation continues that fight, we should draw inspiration from this achievement to move forward and tackle the remaining threats to equality. This anniversary gives us the opportunity to reflect and remember that true progress is possible, even against tremendous odds. That experience proves that we have no right to resign ourselves to the remaining injustices because we know what is possible.

I urge my colleagues to support the resolution, and I commend the gentlewoman from Washington, DC, for introducing it.

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

Mr. Speaker, I yield 4 minutes to the gentlewoman from Washington, DC, (Ms. Norton), the sponsor of the legislation.

Mr. Speaker, I yield 5 minutes to the gentleman from Georgia (Mr. Lewis), a stalwart in the Civil Rights movement.

Mr. Speaker, I yield 3 minutes to the gentlewoman from Texas (Ms. Jackson-Lee), a member of the Committee on the Judiciary.

Mr. Speaker, I yield 3 minutes to the gentleman from Alabama (Mr. Davis).

Mr. Speaker, I yield such time as he may consume to the gentleman from Georgia (Mr. Bishop).

Mr. Speaker, I yield myself the balance of my time. I again want to thank the gentlewoman from the District of Columbia for her leadership. I urge Members to not only remember the need for the Civil Rights Act but also to commit to support its principles.

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 rise in opposition to H.R. 1731. Although I agree with the purpose of the bill, my position is based on the reliance in the bill of mandatory minimum sentencing. By adding mandatory minimum sentencing and denying probation and concurrent sentences, the bill imposes unnecessary and unproductive restrictions on the ability of the Sentencing Commission and judges, in individual cases, to assure a rational and just system of sentencing as a whole and for individuals.

The notion that Congress is in a better position to determine at the front end what the sentence has to be for an individual case than the judge who has heard the case and applies guidelines established by the sentencing professionals not only defeats the rational

sentencing system that Congress adopted but also makes no sense in our separation of powers scheme of governance. Moreover, the notion of mandating a 2-year or 5-year sentence to someone who is already willing to risk a 15-year sentence is not likely to add any deterrence.

Mandatory sentences do not work. They have been studied extensively and have been shown to be ineffective in preventing crime. They distort the sentencing process. They discriminate against minorities in their application, and they waste money. In a study report entitled ``Mandatory Drug Sentences: Throwing Away the Key or the Taxpayers Money?'' The Rand Corporation concluded that mandatory minimum sentences were less effective than either discretionary sentencing or drug treatment in reducing drug-related crime and far more costly than either. The Judicial Conference of the United States has reiterated its opposition to mandatory minimum sentencing over a dozen times to Congress, noting that though sentences ``severely distort and damage the Federal sentencing system . . . undermine the Sentencing Guideline regimen'' established by Congress to promote fairness and proportionality,'' and ``destroy honesty in sentencing by encouraging charge and fact plea bargains.'' The U.S. Sentencing Commission indicated its opposition to the Senate bill, which is virtually identical to this bill, for similar reasons.

Both the Judicial Center in its study report entitled ``The General Effects of Mandatory Minimum Prison Terms: a Longitudinal Study of Federal Sentences Imposed'' and the United States Sentencing Commission in its study entitled ``Mandatory Minimum Penalties in the Federal Criminal Justice System'' found that minorities were substantially more likely than whites under comparable circumstances to receive mandatory minimum sentences. The Sentencing Commission also reflected that mandatory minimum sentences increased the disparity in sentencing of like offenders with no evidence that mandatory minimum sentencing had any more crime-reduction impact than discretionary sentences.

Chief Justice Rehnquist has spoken often and loudly about these wasteful cost increases. One quote attributed to him says: ``Mandatory minimums are perhaps a good example of the law of unintended consequences.''

Mr. Speaker, there is one good part of the bill, and that is an authorization for funding to investigate consumer credit card fraud cases. I introduced in the committee a newspaper report of an identity theft case in which a Senator from New Mexico, Senator Domenici, was the victim. It involved about $800 worth of fraudulent credit card purchases. We checked with the FBI. No action is being taken on this case because of limitations on resources. That is not surprising because these cases often involve stolen credit cards with the card stolen in one jurisdiction, purchases made in another jurisdiction, a suspect living entirely somewhere else, and so the local place cannot effectively investigate these cases. They can be solved because there is usually a paper trail leading right back to the suspect, but it takes resources. Mandatory minimum sentences will do nothing in cases that are not investigated and not prosecuted, and this bill does provide funds to investigate and prosecute cases such as Senator Domenici's.

Unfortunately, Mr. Speaker, because this bill primarily focuses on the narrow piece of the identity theft problem, much of which has nothing to do with consumer identity theft, through the discredited and ineffective and costly mechanism of mandatory minimum sentencing, I cannot support the bill.

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

Mr. Speaker, I yield 5 minutes to the gentleman from California (Mr. Schiff), a distinguished member of the Committee on the Judiciary and a former assistant U.S. Attorney.

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

Mr. Speaker, I thank the gentleman from California for his remarks and also for his hard work on this legislation. As I have indicated, I agree with the purpose of the legislation. However, I disagree with the use of the mandatory minimums.

With mandatory minimums, low level offenders frequently get too much time. The more serious violators often get too little time. That is why we have the Sentencing Commission, that is why we have judges who will hear the evidence and impose the appropriate punishment in the individual case.

Mr. Speaker, I would hope that we would reject the legislation so that we could eliminate the mandatory minimums.

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

Mr. Speaker, will the gentleman yield?

Mr. Speaker, the gentleman has correctly stated the intent of my amendment.

Mr. Speaker, I yield myself 5 minutes.

Mr. Speaker, I rise in opposition to H.R. 218. This bill authorizes so-called qualified active and retired Federal and State law enforcement officers to carry concealed weapons interstate without regard to State and local laws prohibiting or regulating such carriage.

``Law enforcement officer'' includes corrections, probation, parole and judicial officers, as well as police, sheriffs and other law enforcement officials, and just about anybody who has statutory power of arrest and anyone who is engaged through employment by a government agency in the prevention, detection, investigation, supervision, prosecution or incarceration of law violators.

In the past, we have considered this bill under the title, Community Protection Act. The rhetoric surrounding the bill was an indication that its purpose was to aid in protecting the public by putting tens of thousands of additional armed law enforcement officers in a position to protect the public as officers travel from State to State and jurisdiction to jurisdiction.

From the name of the current bill, it appears that the emphasis now is on the safety of the officers as they travel. Yet the language is exactly the same.

One of the problems with even suggesting that purpose of a Federal law is for law enforcement officers to assist in protecting the public outside their jurisdictions is that it may give them encouragement or even a sense of obligation to do so.

I submitted for the record in the hearing before the subcommittee a long list of articles and reports in instances where, even in the same jurisdiction, off-duty plainclothes law enforcement officers have shot, or been shot by, other off-duty officers, or gotten shot by them or uniform officers, in gun battles because the plainclothes officers were mistaken as criminals.

If off-duty officers in the same jurisdiction are being shot by their fellow officers, encouraging out-of-state officers to join in such activities through a Federal law will certainly only add to the problem. Therefore, any perceived benefit that could arise from such engagement is of dubious value.

Now, this is especially true when there are officers from small jurisdictions who may not be trained in how to tell fellow police officers from criminals. Such training would be routine in large cities; but if it is a small jurisdiction where everyone knows everybody, that training would not take place.

It is this specter of individually determined engagement in law enforcement actions by out-of-state plainclothes off-duty officers who may not be trained for specific situations that gives police chiefs and local and State governments huge concern. Clearly, they see these officers as more of a challenge to law enforcement than a help.

The bill not only takes away the ability for local law enforcement leaders to manage concealed firearms activities from out-of-state officers, but it also overrides the ability of the police department to regulate its own officers.

The bill overrides a police chief's ability to regulate his own officers in what they do with their own private funds within their jurisdiction. It also eliminates control over concealed weapons activities of retired officers within their own jurisdiction.

Now, it also even overrides a police chief's ability to say what the officers can do with agency-issued guns in their possession within their own jurisdiction.

State legislatures can authorize out-of-state off-duty officers to carry concealed weapons within their jurisdictions. Some have, although most have not. I do not know what the liability implications are for local jurisdictions when officers become engaged in out-of-state shoot- outs. Which jurisdiction is liable for the conduct of the out-of-state active or retired officer who may be negligent? The jurisdiction viewed as allowing an unfamiliar, untrained officer to participate in the shoot-out or the jurisdiction that issued the gun and certified the officer to carry it or other concealed weapons across State lines? The liability insurance implications alone should give Congress pause in imposing an interstate concealed-carry provision on State and local governments.

Now, most organizations representing policymakers in law enforcement, like police chiefs, have opposed this legislation. Congress should not usurp State and local control of law enforcement activities, as this bill will do. So we should oppose this bill.

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

Mr. Speaker, I yield such time as he may consume to the gentleman from Massachusetts (Mr. Delahunt), a distinguished member of the Committee on the Judiciary and a highly respected district attorney from Massachusetts.

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

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

Mr. Chairman, having heard the chairman's explanation, I was wondering if the gentlewoman from Texas could respond.

I yield to the gentlewoman from Texas.

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

Mr. Chairman, I rise in support of the amendment. My colleagues, the gentleman from Virginia (Mr. Schrock), the gentlewoman from Virginia (Mrs. Jo Ann Davis), the gentleman from Virginia (Mr. Forbes), the gentleman from Virginia (Mr. Cantor) and I represent the Richmond and Hampton Roads area of Virginia. Richmond is the home of the Port of Richmond. Hampton Roads is not only the home of the Port of Hampton Roads, but also the home of the world's largest Navy base and other strategic military installations, a nuclear power plant, and an oil refinery. It is considered one of the most target-rich areas of the Nation for terrorist attack. Each year over 2,500 commercial vessels enter the Port of Hampton Roads alone, so adequate funding for port security is a significant issue for those of us who live in Richmond and Hampton Roads.

To guard against vulnerabilities, such as cargo containers being used to smuggle chemical, biological or nuclear weapons, or the ships themselves being used as weapons, the Coast Guard has estimated it will cost approximately $1.1 billion to properly protect our ports from terrorism.

Congress has taken the lead in supporting port security grants by appropriating a little over $500 million since 9/11. This bill contains another $125 million but still leaves us almost $500 million short of the Coast Guard analysis. The amendment offered by the gentlewoman from California (Ms. Millender-McDonald) would close the gap by an additional $275 million. These funds will ensure that ports will be able to pay for adequate security measures to protect all Americans against terrorist attacks from our seaports.

Finally, Mr. Chairman, I want to thank the gentlewoman from California (Ms. Millender-McDonald) for her detailed analysis that she has provided us which shows that even after the transfer, FEMA will have more money than it had last year even though it ran a surplus last year of over $500 million.

Furthermore, I want to thank the gentlewoman for pointing out that the $400 million is a small portion of the $16 billion in customs fees generated by the maritime industry. This bipartisan amendment is supported by the American Association of Port Authorities and the Port Security Council of America. I ask that we support the amendment.

I yield to the gentleman from California.

I yield to the gentleman from Kentucky.