[House Report 104-879]
[From the U.S. Government Publishing Office]
Union Calendar No. 481
104th Congress, 2d Session - - - - - - - - - - - - House Report 104-879
REPORT ON THE ACTIVITIES OF THE COMMITTEE ON THE JUDICIARY
of the
HOUSE OF REPRESENTATIVES
during the
ONE HUNDRED FOURTH CONGRESS
pursuant to
Clause 1(d) Rule XI of the Rules of the
House of Representatives
January 2, 1997.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
COMMITTEE ON THE JUDICIARY
House of Representatives
ONE HUNDRED FOURTH CONGRESS
------
HENRY J. HYDE, Illinois, Chairman
1
JOHN CONYERS, Jr., Michigan CARLOS J. MOORHEAD, California
PATRICIA SCHROEDER, Colorado F. JAMES SENSENBRENNER, Jr.,
BARNEY FRANK, Massachusetts Wisconsin
CHARLES E. SCHUMER, New York BILL McCOLLUM, Florida
HOWARD L. BERMAN, California GEORGE W. GEKAS, Pennsylvania
RICH BOUCHER, Virginia HOWARD COBLE, North Carolina
JOHN BRYANT, Texas LAMAR SMITH, Texas
JACK REED, Rhode Island STEVEN SCHIFF, New Mexico
JERROLD NADLER, New York ELTON GALLEGLY, California
ROBERT C. SCOTT, Virginia CHARLES T. CANADY, Florida
MELVIN L. WATT, North Carolina BOB INGLIS, South Carolina
XAVIER BECERRA, California BOB GOODLATTE, Virginia
JOSE E. SERRANO, New York \2\ STEPHEN E. BUYER, Indiana
ZOE LOFGREN, California MARTIN R. HOKE, Ohio
SHEILA JACKSON LEE, Texas SONNY BONO, California
MAXINE WATERS, California \3\ FRED HEINEMAN, North Carolina
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
MICHAEL PATRICK FLANAGAN, Illinois
BOB BARR, Georgia
Alan F. Coffey, Jr., General
Counsel/Staff Director
Julian Epstein, Minority Staff
Director
----------
\1\ Henry J. Hyde, Illinois, elected to the Committee as Chairman
pursuant to House Resolution 11, approved by the House January 5
(legislative day of January 4), 1995.
Republican Members elected to the Committee pursuant to House
Resolution 11, approved by the House January 5 (legislative day of
January 4), 1995.
Democratic Members elected to the Committee pursuant to House
Resolution 12, approved by the House January 5 (legislative day of
January 4), 1995.
\2\ Jose E. Serrano, New York, resigned from the Committee March 14,
1996.
\3\ Maxine Waters, California, elected to the Committee pursuant to
House Resolution 414, approved by the House April 25, 1996.
Subcommittees of the Committee on the Judiciary \1\
------
Courts and Intellectual Property
CARLOS J. MOORHEAD, California,
Chairman
PATRICIA SCHROEDER, Colorado F. JAMES SENSENBRENNER, Jr.,
JOHN CONYERS, Jr., Michigan Wisconsin
HOWARD L. BERMAN, California HOWARD COBLE, North Carolina
XAVIER BECERRA, California BOB GOODLATTE, Virginia
RICK BOUCHER, Virginia SONNY BONO, California
JERROLD NADLER, New York GEORGE W. GEKAS, Pennsylvania
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
MARTIN R. HOKE, Ohio
Crime
BILL McCOLLUM, Florida, Chairman
CHARLES E. SCHUMER, New York STEVEN SCHIFF, New Mexico
ROBERT C. SCOTT, Virginia STEPHEN E. BUYER, Indiana
ZOE LOFGREN, California HOWARD COBLE, North Carolina
SHEILA JACKSON LEE, Texas FRED HEINEMAN, North Carolina
MELVIN L. WATT, North Carolina ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
Commercial and Administrative Law
GEORGE W. GEKAS, Pennsylvania,
Chairman
JACK REED, Rhode Island HENRY J. HYDE, Illinois
JOHN BRYANT, Texas \2\ BOB INGLIS, South Carolina
JERROLD NADLER, New York STEVEN CHABOT, Ohio
ROBERT W. SCOTT, Virginia MICHAEL PATRICK FLANAGAN, Illinois
ZOE LOFGREN, California \2\ BOB BARR, Georgia
Immigration and Claims
LAMAR SMITH, Texas, Chairman
JOHN BRYANT, Texas ELTON GALLEGLY, California
BARNEY FRANK, Massachusetts CARLOS J. MOORHEAD, California
CHARLES E. SCHUMER, New York BILL McCOLLUM, Florida
HOWARD L. BERMAN, California SONNY BONO, California
XAVIER BECERRA, California FRED HEINEMAN, North Carolina
ED BRYANT, Tennessee
The Constitution
CHARLES T. CANADY, Florida,
Chairman
BARNEY FRANK, Massachusetts HENRY J. HYDE, Illinois
MELVIN L. WATT, North Carolina BOB INGLIS, South Carolina
JOSE E. SERRANO, New York \3\ MICHAEL PATRICK FLANAGAN, Illinois
JOHN CONYERS, Jr., Michigan F. JAMES SENSENBRENNER, Jr.,
PATRICIA SCHROEDER, Colorado Wisconsin
MAXINE WATERS, California \3\ MARTIN R. HOKE, Ohio
LAMAR SMITH, Texas
BOB GOODLATTE, Virginia
----------
\1\ Subcommittee chairmanships and assignments approved January 5,
1995; revised Democratic assignments approved February 2, 1995, March
12, 1996, and June 11, 1996.
\2\ Zoe Lofgren, California, assigned to fill the vacancy created by
the resignation of John Bryant, Texas, from the Subcommittee on
Commercial and Administrative Law effective March 12, 1996.
\3\ Maxine Waters, California, assigned to the Subcommittee on the
Constitution June 11, 1996, to fill the vacancy created by the
resignation of Jose E. Serrano, Texas, from the Committee March 14,
1996.
LETTER OF TRANSMITTAL
----------
House of Representatives,
Committee on the Judiciary,
Washington, DC, January 2, 1997.
Hon. Robin H. Carle,
Clerk of the House of Representatives,
Washington, DC.
Dear Ms. Carle: Pursuant to clause 1(d) of rule XI of the
Rules of the House of Representatives, I am transmitting the
report on the activities of the Committee on the Judiciary of
the U.S. House of Representatives for the 104th Congress.
Sincerely,
Henry J. Hyde,
Chairman.
C O N T E N T S
----------
Page
Jurisdiction of the Committee on the Judiciary................... 1
Tabulation of legislation and activity........................... 3
Hearings......................................................... 4
Committee prints................................................. 8
House documents.................................................. 8
Nonlegislative House reports..................................... 10
Summary of activities of the Committee on the Judiciary.......... 11
Public Laws.................................................. 11
Conference appointments...................................... 17
Full Committee Activities.................................... 23
Legislative activities....................................... 23
Antitrust................................................ 23
Telecommunications Reform--H.R. 1528, H.R. 1555, P.L.
104-104............................................ 23
Charitable Gift Annunities--H.R. 2525, the
``Charitable Gift Annuity Antitrust Relief Act of
1995''............................................. 25
Intellectual Property Antitrust Protection--H.R. 2674 27
Sports Franchise Reloction--H.R. 2740................ 29
Health Care Provider Networks, H.R. 2925 ``Antitrust
Health Care Advancement Act of 1996''.............. 33
Liability Issues......................................... 36
Product Liability/Legal Reform--H.R. 10; H.R. 956.... 36
Medical Malpractice.................................. 41
Limitations on Volunteer Liability................... 42
Matters Held at Full Committee........................... 43
Balanced Budget Constitutional Amendment............. 43
The Small Business Regulatory Enforcement Fairness
Act of 1996........................................ 45
Antiterrorism........................................ 48
The Church Arson Prevention Act of 1996.............. 51
H.R. 994, the ``Regulatory Sunset and Review Act of
1995''............................................. 54
Civil Asset Forfeiture Reform........................ 55
National Gambling Impact Study Commission--H.R. 497,
P.L. 104-169....................................... 58
Victims' Rights Constitutional Amendment--H.J. Res.
173 and 174........................................ 59
Encryption--H.R. 3011, the ``Security and Freedom
Through Encryption (SAFE) Act''.................... 60
Title 49 Codification Update......................... 63
Oversight Activities......................................... 64
Full Committee Oversight Hearings........................ 64
Summary of activities of the Subcommittees of the Committee on
the Judiciary:
Subcommittee on Commercial and Administrative Law:
Tabulation and disposition of bills referred to the
subcommittee........................................... 65
Jurisdiction of the subcommittee......................... 65
Legislative Activities................................... 65
Administrative Law/Practice and Procedure................ 65
H.R. 1802, Reorganization of the Federal
Administrative Judiciary Act....................... 65
H.R. 2977, Administrative Dispute Resolution Act of
1996............................................... 67
H.R. 2291, To Extend the Administrative Conference of
the United States.................................. 68
Bankruptcy............................................... 69
H.R. 234, Boating and Aviation Operation Safety Act
of 1994............................................ 69
H.R. 2604, Bankruptcy Judgeship Act of 1995.......... 69
The Legal Services Corporation........................... 70
H.R. 2277, The Legal Aid Act of 1995................. 70
Regulatory Reform/Regulatory Flexibility................. 72
H.R. 9 (titles VI, VII, VII), The Job Creation and
Wage Enhancement Act of 1995 and H.R. 926 (titles
I, II, III), The Regulatory Reform and Relief Act.. 72
H.R. 450/S. 219, The Regulatory Transition act of
1995............................................... 74
H.R. 1047, Voluntary Environmental Self-Evaluation
Act................................................ 75
H.R. 1670, The federal Acquisition Reform Act of 1995 76
H.R. Delegation of Congressional Authority to Federal
Agencies........................................... 76
H.R. H.R. 3307, The Regulatory Fair Warning Act...... 77
State Taxation........................................... 77
H.R. 394, To Amend Title 4 of the United States Code
To Limit State Taxation of Certain Pension Income.. 77
H.R. 3163, Taxation of Federal Employees Working on
the Columbia River................................. 78
Interstate Compacts...................................... 79
H.R. 2064, the Historic Chattahoochee Compact........ 79
H.J. Res. 78, The Bi-State Development Compact....... 79
H.J. Res. 113, The Jennings Randolph Project......... 79
H.J. Res. 129, The Vermont-New Hampshire Interstate
Public Water Supply Compact........................ 80
H.J. Res. 166, The Cities of Bristol Compact......... 81
H.J. Res. 189, Granting the Consent of Congress to
the Interstate Insurance Receivership Compact...... 81
H.J. Res. 193, Emergency Management Mutual Assistance
Compact............................................ 82
H.J. Res. 194, The Washington Area Metropolitan
Transit Regulation Compact......................... 82
Oversight Activities..................................... 83
Administrative Law, Practice and Procedures.......... 83
Administrative Conference of the United States... 83
Performance of the Social Security
Administration's Office of Hearings and Appeals
in Mobile, Alabama............................. 84
The Legal Services Corporation....................... 84
Negotiated Rulemaking................................ 85
Regulatory Reform.................................... 85
Local Taxation of Wireless Cable..................... 86
U.S. Trustees........................................ 86
Subcommittee on the Constitution:
Tabulation and disposition of bills referred to the
subcommittee........................................... 89
Jurisdiction of the subcommittee......................... 89
Legislation.............................................. 89
Private Property Rights.............................. 89
Fair Housing......................................... 90
Racial and Gender Preferences--The Equal Opportunity
Act................................................ 90
Reform of Laws Governing Lobbying.................... 92
Religious Freedom.................................... 93
Partial-Birth Abortion Ban Act....................... 94
Parental Rights and Responsibilities Act............. 95
Office of Government Ethics.......................... 95
Billingual Voting Requirements....................... 95
U.S. Commission of Civil Rights...................... 96
Same-Sex Marriage--The Defense of Marriage Act....... 97
Presidential and Executive Office Accountability Act. 97
Constitutional Amendments................................ 97
Balanced Budget...................................... 97
Term Limits.......................................... 98
Flag Protection...................................... 98
Tax Limitation Amendment............................. 99
Oversight Activities..................................... 99
Environmental and Natural Resources Division of the
Department of Justice.............................. 99
Office of Government Ethics.......................... 99
Clinton Administration Adarand Review................ 100
Birthright Citizenship............................... 101
Roe v. Wade.......................................... 101
Physician-Assisted Suicide........................... 101
School Desegregation Litigation...................... 101
Subcommittee on Immigration and Claims:
Tabulation and disposition of bills referred to the
subcommittee........................................... 103
Jurisdiction of the Subcommittee......................... 103
Public Legislation Enacted Into Law...................... 104
Comprehensive Immigration Reform: The Illegal
Immigration Reform and Immigrant Responsibility Act
of 1996............................................ 104
Legislative History.............................. 104
Background....................................... 104
Hearings......................................... 105
Commission on Immigration Reform................. 105
Summary of Legislation as Introduced............. 106
Border Security.............................. 106
Alien Smuggling.............................. 107
Removal of Illegal and Criminal Aliens....... 107
Employer Sanctions and Certification......... 109
Legal Immigration Reform..................... 111
Eligibility for Benefits and Sponsorship..... 115
Facilitation of Legal Entry.................. 116
Skilled Nonimmigrants (H-1B) and
Miscellaneous Provi- sions............... 116
Subcommittee Consideration....................... 117
Full Committee Consideration..................... 118
Consideration by the House....................... 120
Senate and Conference Consideration.............. 122
Final Passage and Enactment...................... 122
The ``Cuban Liberty and Democratic Solidarity
(LIBERTAD) Act of 1995''........................... 124
A Bill Extending the Period of Stay in the United
States for Certain Nurses.......................... 126
Amendment to the Immigration and Nationality Act to
update references in the classification of children
for purposes of United States Immigration laws..... 126
``Human Rights, Refugee, and Other Foreign Relations
Provisions Act of 1996''........................... 127
International Law................................ 127
``War Crimes Act of 1996''................... 127
Claims....................................... 128
Reimbursement of White House Travel Office
Employ- ees Legal Expenses and Related
Fees........................................... 128
Pueblo of Isleta Indian Land Claims.......... 130
Action on Other Public Legislation....................... 131
Immigration.......................................... 131
Membership of U.S. Commission on Immigration
Reform......................................... 131
Authorize States to Deny Public Education
Benefits to Illegal Alien Children............. 131
A Bill Providing for Certain Changes with Respect
to Requirements for a Canadian Border Boat
Landing Permit................................. 132
To Confer Honorary Citizenship of the United
States on Agnes Gonxha Bojaxhiu, Also Known as
Mother Teresa.................................. 132
Claims............................................... 133
``Ricky Ray Hemophilia Relief Fund Act of 1996''. 133
Federal Charters......................................... 134
Subcommittee Policy on New Federal Charters.......... 134
Amendment to the Veterans of Foreign Wars Charter.... 135
Private Claims and Private Immigration Legislation....... 135
Oversight Activities..................................... 135
Immigration.......................................... 135
Management Practices of the Immigration and
Naturalization Service......................... 135
Foreign Visitors Who Violate the Terms of their
Visas by Remaining in the United States
Indefinitely................................... 136
Worksite Enforcement of Employer Sanctions....... 136
Border Security.................................. 136
Removal of Criminal and Illegal Aliens........... 137
Verification of Eligibility for Employment and
Benefits....................................... 137
Impact of Illegal Immigration on Public Benefit
Programs and the American Labor Force.......... 137
Legal Immigration Reform Proposals............... 138
The Commission on Immigration Reform's Interim
Recommendations on Legal Immigration Reform.... 138
Agricultural Guest Worker Programs............... 138
Agriculture Guest Worker Programs................ 138
Legal Immigration Projections.................... 139
Shifting of Refugee resettlement to Private
Organizations.................................. 139
Removal of Criminal and Illegal Aliens........... 139
Alleged Deception of Congressional Delegation to
Miami District of the Immigration and
Naturalization Service......................... 140
Refugee Consultations............................ 140
Subcommittee on Courts and Intellectual Property:
Tabulation and disposition of bills referred to the
subcommittee........................................... 143
Jurisdiction of the Subcommittee......................... 143
Legislative Activities................................... 143
Courts............................................... 143
Reporting Deadlines, S. 464...................... 143
Senior Judge Participation in En Banc Hearings,
S. 531......................................... 144
Clarify the Rules Governing Venue, S. 532........ 144
Amend Commencement Date of Certain Temporary
Federal Judgeships, H.R. 2361.................. 145
Technical Amendments to Removal Provision, S. 533 145
Technical Amendments to Venue Provisions, S. 677. 146
Attorney Accountability Act, H.R. 988............ 146
Three Judge Court Review of Constitutional
Challenges to Referenda, H.R. 1170............. 148
Federal Courts Improvement Act, H.R. 3968........ 149
Stenographic Preference for Depositions, H.R.
1445........................................... 150
Court Arbitration Authorization Act, H.R. 1443... 150
Police Civil Liability, H.R. 1446................ 151
Ethical Standards for Federal Prosecutors, H.R.
3386........................................... 151
Intellectual Property.................................... 152
Copyrights........................................... 152
Piracy by China, H.J. Res. 50.................... 152
Digital Performance Right in Sound Recordings
Act, H.R. 1506................................. 152
Film Labeling, H.R. 1248......................... 153
Copyright Clarification Act, H.R. 1861........... 153
National Film Preservation Act, H.R. 1734........ 154
Copyright Term Extension, H.R. 989............... 155
National Information Infrastructure Copyright
Protection Act, H.R. 2441...................... 156
Patents.............................................. 157
Biotechnology Patent Process Act, H.R. 587....... 157
Compensation Owners of Patents Used by U.S., H.R.
632............................................ 158
PTO Corporation Act, H.R. 1659................... 158
Intellectual Property Organization Act of 1996,
H.R. 2533...................................... 160
Commerce Department Dismantling, H.R. 1756....... 161
18-Month Publication, H.R. 1733.................. 161
Prior User Rights, H.R. 2235..................... 163
Inventor Protection, H.R. 2419................... 164
Reexamination, H.R. 1732......................... 165
Patent Term, H.R. 359............................ 167
Medical Procedures, H.R. 1127.................... 168
Trademarks........................................... 169
Federal Trademark Dilution, H.R. 1295............ 169
Anticounterfeiting, H.R. 2511.................... 169
Madrid Protocol Implementation Act, H.R. 1270.... 170
Department of Agriculture Trademark of ``Woodsy
Owl'', H.R. 1269............................... 171
Other Intellectual Property Rights....................... 172
Database Protection, H.R. 3531....................... 172
Oversight Activities..................................... 172
Digital Performance Rights in Sound Recordings....... 172
Fairness in Music Licensing.......................... 172
Satellite Home Viewer act Interpretation............. 173
Madrid Protocol...................................... 173
Copyrighted Works on the Internet.................... 174
Exemption in the Copyright Act for the Repair of
Computers.......................................... 174
Copyright Term Extension............................. 174
Protection of Photofinishers......................... 174
Fair Use Exemption................................... 175
Ethical Standards for Federal Prosecutors and
Prosecutorial Discretion........................... 176
Article III Courts................................... 177
Summary of Oversight Plan and Implementation............. 178
Article III Courts................................... 178
The U.S. Copyright System............................ 178
The U.S. Patent and Trademark Systems................ 179
Subcommittee on Crime:
Tabulation of subcommittee legislation and activity...... 181
Jurisdiction of the subcommittee......................... 181
The Effective Death penalty Act--Habeas Corpus Reform.... 181
Truth-in-Sentencing and prison Litigation Reform......... 182
Local Government Law Enforcement Block Grants............ 183
Mandatory Victim Restitution............................. 184
Exclusionary Rule........................................ 185
Criminal Alien Deportation............................... 185
The War on Drugs......................................... 186
International Drug Trafficking....................... 186
Cocaine Sentencing Policy............................ 186
Marijuana Policy..................................... 187
Methamphetamine Policy............................... 188
Violence Against Women................................... 188
Anti-Stalking Legislation............................ 188
Rape Defined in Carjacking Offenses.................. 189
Drug-Induced Rape Prevention and Punishment.......... 189
Sex Crimes Against Children.............................. 189
Sexual Crimes Against Children Prevention Act........ 189
Serial Killers and Child Abductions.................. 190
Megan's Law.......................................... 190
The Crimes Against Children and Elderly Increased
Punishment Act..................................... 190
Federal Record Keeping and Sex Offenders............. 191
Children's Privacy Protection and Parental
Empowerment Act.................................... 191
Child Abuse Prevention and Treatment Act Amendments
of 1995............................................ 191
Violent Youth Crime...................................... 192
Regional Crime Forums................................ 192
Juvenile Crime Reform Act............................ 194
Federal Law Enforcement Oversight........................ 195
Nature, Extent, and Proliferation of Federal Law
Enforcement--Part 1: An Introduction and Overview.. 195
Nature, Extent, and Proliferation of Federal Law
Enforcement--Part 2: An Introduction and Overview.. 195
Federal Law Enforcement Actions in Relation to the
Branch Davidian Compound in Waco, Texas............ 195
FBI Murder Investigation in Haiti.................... 197
General DOJ Oversight and Legislation.................... 198
Criminal Division Reorganization..................... 198
Law Enforcement Technology........................... 198
Matters Relating to the Federal Bureau of Prisons.... 198
COPS Program......................................... 198
Administration's Efforts Against the Influence of
Organized Crime in the Laborers' International
Union of North America............................. 198
The Parole Commission Phaseout Act of 1995........... 199
Other Subcommittee Hearings.............................. 199
Combating Domestic Terrorism......................... 199
Combating Crime in the District of Columbia.......... 200
Nature and Threat of Violent Anti-Government Groups
in America......................................... 200
United States Sentencing Commission.................. 201
The Growing Threat of International Organized Crime.. 201
Economic Espionage................................... 202
Police Officers' Rights and Benefits................. 202
Miscellaneous Bills...................................... 202
Gun Ban Repeal Act of 1995........................... 202
Consumer Fraud Prevention Act of 1995................ 202
Increasing Penalties for Espionage from a Federal
Prison............................................. 203
Private Security Officer Quality Assurance Act of
1995............................................... 203
Execution of Federal Prisoners....................... 204
DNA Identification Grants Improvement Act of 1995.... 204
Fugitive Detention Act of 1995....................... 204
United States Marshals Service Improvement Act of
1995............................................... 204
Mandatory Federal Prison Drug Treatment Act of 1995.. 205
Anti-Car Theft Improvements Act of 1995.............. 205
Law Enforcement and Industrial Security Cooperation
Act of 1996........................................ 206
Punishing Witness Retaliation and Jury Tampering..... 206
Government Accountabilty Act of 1996................. 206
Contracting or Trading with Indians.................. 207
Independent Counsel Accountability and Reform Act of
1996............................................... 207
Federal Law Enforcement Dependents Assistance Act of
1996............................................... 207
Union Calendar No. 481
104th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 104-879
_______________________________________________________________________
REPORT ON THE ACTIVITIES OF THE COMMITTEE ON THE JUDICIARY
_______
January 2, 1997.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______________________________________________________________________
Mr. Hyde, from the Committee on the Judiciary, submitted the following
R E P O R T
Jurisdiction of the Committee on the Judiciary
The jurisdiction of the Committee on the Judiciary is set
forth in Rule X, 1.(j) of the Rules of the House of
Representatives for the 104th Congress:
* * * * * * *
Rule X.--Establishment and Jurisdiction of Standing Committees
The Committees and Their Jurisdiction
1. There shall be in the House the following standing
committees, each of which shall have the jurisdiction and
related functions assigned to it by this clause and clauses 2,
3, and 4; and all bills, resolutions, and other matters
relating to subjects within the jurisdiction of any standing
committee as listed in this clause shall (in accordance with
and subject to clause 5) be referred to such committees, as
follows:
* * * * * * *
(j) Committee on the Judiciary
(1) The judiciary and judicial proceedings,
civil and criminal.
(2) Administrative practice and procedure.
(3) Apportionment of Representatives.
(4) Bankruptcy, mutiny, espionage, and
counterfeiting.
(5) Civil liberties.
(6) Constitutional amendments.
(7) Federal courts and judges, and local
courts in the Territories and possessions.
(8) Immigration and naturalization.
(9) Interstate compacts, generally.
(10) Measures relating to claims against the
United States.
(11) Meetings of Congress, attendance of
Members and their acceptance of incompatible
offices.
(12) National penitentiaries.
(13) Patents, the Patent Office, copyrights,
and trademarks.
(14) Presidential succession.
(15) Protection of trade and commerce against
unlawful restraints and monopolies.
(16) Revision and codification of the
Statutes of the United States.
(17) State and territorial boundaries.
(18) Subversive activities affecting the
internal security of the United States.
Tabulation of Legislation and Activity
----------
Legislation referred to committee
Public legislation:
House bills................................................... 686
House joint resolutions....................................... 123
House concurrent resolutions.................................. 18
House resolutions............................................. 9
-----------------------------------------------------------------
________________________________________________
836
=================================================================
________________________________________________
Senate bills.................................................. 23
Senate joint resolutions...................................... 4
Senate concurrent resolutions................................. 0
-----------------------------------------------------------------
________________________________________________
27
=================================================================
________________________________________________
Subtotal.................................................. 863
=================================================================
________________________________________________
Private legislation:
House bills (Claims).......................................... 46
House bills (Copyrights)...................................... 1
House bills (Criminal Procedure).............................. 1
House bills (Immigration)..................................... 14
House bills (Patents)......................................... 2
-----------------------------------------------------------------
________________________________________________
64
=================================================================
________________________________________________
Senate bills (Claims)......................................... 1
Senate bills (Copyrights Patents)............................. 0
Senate bills (Immigration).................................... 0
-----------------------------------------------------------------
________________________________________________
1
=================================================================
________________________________________________
Subtotal.................................................. 65
=================================================================
________________________________________________
Total..................................................... 928
Action on Legislation Not Referred to Committee
Amended by House with Committee language (public):
House bills................................................... 1
Senate bills.................................................. 0
-----------------------------------------------------------------
________________________________________________
1
=================================================================
________________________________________________
Held at desk for House action (public):
Senate bills.................................................. 15
-----------------------------------------------------------------
________________________________________________
15
=================================================================
________________________________________________
Conference appointments (public):
House bills................................................... 4
Senate bills.................................................. 2
-----------------------------------------------------------------
________________________________________________
6
=================================================================
________________________________________________
Total..................................................... 22
=================================================================
________________________________________________
Final Action
House resolutions approved (public)........................... 1
Public laws................................................... 69
Private Laws.................................................. 4
Hearings
Serial No. and Title
__________
(*Denotes material not assigned a serial number as of filing date)
1. Management Practices of the Immigration and Naturalization
Service. Subcommittee on Immigration and Claims. February 8, 1995.
2. Foreign Visitors Who Violate the Terms of Their Visas by
Remaining in the United States Indefinitely. Subcommittee on
Immigration and Claims. February 14, 1995.
3. Job Creation and Wage Enhancement Act of 1995. Subcommittee on
Commercial and Administrative Law. February 3, 6, 1995. (Oversight of
regulatory practices and procedure provisions--Titles VI, VII, and
VIII--of H.R.9).
4. Product Liability and Legal Reform. Committee on the Judiciary.
February 13, 1995. (Product liability provisions of H.R. 10).
5. Balanced Budget Constitutional Amendment. Subcommittee on the
Constitution. January 9, 10, 1995. (Oversight H.J. Res.1).
6. Reauthorization of the Administrative Conference of the United
States. Subcommittee on Commercial and Administrative Law. May 11,
1995.
7. Telecommunications: The Role of the Department of Justice.
Committee on the Judiciary. May 9, 1995.
8. Worksite Enforcement of Employer Sanctions. Subcommittee on
Immigration and Claims. March 3, 1995.
9. Attorney Accountability. Subcommittee on Courts and Intellectual
Property. February 6, 10, 1995. (Oversight of civil justice reform
provisions of H.R. 10).
10. Boating and Aviation Operation Safety Act. Subcommittee on
Commercial and Administrative Law. July 13, 1995. (H.R. 234).
11. State Taxation of Nonresidents' Pension Income. Subcommittee on
Commercial and Administrative Law. June 28, 1995. (H.R. 371, H.R. 394
and H.R. 744).
12. Reorganization of the Federal Administrative Judiciary Act
(Parts 1 and 2). Subcommittee on Commercial and Administrative Law.
July 26, 1995. March 28, 1996 (H.R. 1802).
13. Border Security. Subcommittee on Immigration and Claims. March
10, 1995.
14. Verification of Eligibility for Employment and Benefits.
Subcommittee on Immigration and Claims. March 30, 1995.
15. Removal of Criminal and Illegal Aliens. Subcommittee on
Immigration and Claims. March 23, 1995.
16. Patents on Biotechnological Processes and to Authorize Use by
Regulation the Representation of ``Woodsy Owl'' Subcommittee on Courts
and Intellectual Property. March 29, 1995. (H.R. 587 and H.R. 1269).
17. Measures Passed by State Referendum. Subcommittee on Courts and
Intellectual Property. April 5, 1995. (H.R. 1170).
18. Court Arbitration, Stenographic Preferences, and Venue
Clarification. Subcommittee on Courts and Intellectual Property. May
11, 1995. (H.R. 1443, H.R. 1445, S. 464, and S. 532).
19. Cocaine and Federal Sentencing Policy. Subcommittee on Crime.
June 29, 1995.
20. Law Enforcement Technology. Subcommittee on Crime. May 17,
1995.
21. Matters Relating to the Federal Bureau of Prisons. Subcommittee
on Crime. June 8, 1995.
22. Enforcement of Federal Drug Laws: Strategies and Policies of
the FBI and DEA. Subcommittee on Crime. March 30, 1995.
23. Criminal Division of the Department of Justice. Subcommittee on
Crime. March 23, 1995.
24. International Terrorism: Threats and Responses. Committee on
the Judiciary. April 6, June 12, 13, 1995. (Oversight H.R. 1710).
25. Reauthorization of the Office of Government Ethics.
Subcommittee on the Constitution. May 17, 1995.
26. Reauthorization of the Legal Services Corporation. Subcommittee
on Commercial and Administrative Law. May 16, June 15, July 27, 1995.
27. Agricultural Guest Worker Programs. Subcommittee on Immigration
and Claims of the Committee on the Judiciary and the Subcommittee on
Risk Management and Specialty Crops of the Committee on Agriculture.
December 14, 1995.
28. Impact of Illegal Immigration on Public Benefit Programs and
the American Labor Force. Subcommittee on Immigration and Claims. April
5, 1995.
29. Environment and Natural Resources Division of the Department of
Justice. Subcommittee on the Constitution. May 10, 1995.
30. Patents Legislation. Subcommittee on Courts and Intellectual
Property. June 8, November 1, 1995. (H.R. 359, H.R. 632, H.R. 1732, and
H.R. 1733).
31. Partial-Birth Abortion. Subcommittee on the Constitution. June
15, 1995.
32. Copyright Act Technical Corrections. Subcommittee on Courts and
Intellectual Property. November 9, 1995. (H.R. 1861).
33. Reform of Laws Governing Lobbying. Subcommittee on the
Constitution. May 23, 1995.
34. National Gambling Impact and Policy Commission Act. Committee
on the Judiciary. September 29, 1995. (H.R. 497).
35. Digital Performance Right in Sound Recordings Act of 1995.
Subcommittee on Courts and Intellectual Property. June 21, 28, 1995.
(H.R. 1506).
36. Bankruptcy Judgeship Act of 1995. Subcommittee on Commercial
and Administrative Law. December 7, 1995. (H.R. 2604).
37. Reauthorization of the Administrative Dispute Resolution Act.
Subcommittee on Commercial and Administrative Law. December 13, 1995.
38. NII Copyright Protection Act of 1995. Part I--Subcommittee on
Courts and Intellectual Property of the House Committee on the
Judiciary jointly with the Senate Committee on the Judiciary. November
15, 1995. (H.R. 2441 and S. 1284). Part 2--Subcommittee on Courts and
Intellectual Property. February 7, 8, 1996. (H.R. 2441).
39. Prior Domestic Commercial Use Act of 1995. Subcommittee on
Courts and Intellectual Property. October 26, 1995. (H.R. 2235).
40. Minor and Miscellaneous Bills. Subcommittee on Crime. Part 1--
September 28, 1995. (H.R. 1241, H.R. 1533, H.R. 1552, H.R. 2359, and
H.R. 2360). Part 2--March 7, 1996. (H.R. 1143, H.R. 1144, H.R. 1145,
H.R. 2092, H.R. 2137, H.R. 2453, H.R. 2587, H.R. 2607, H.R. 2641, H.R.
2650, H.R. 2803, H.R. 2804, H.R. 2974, H.R. 2980, and H.R. 2996).
41. U.S. v. Hubbard: Prosecuting False Statements to Congress.
Subcommittee on Crime. June 30, 1995.
42. Protecting Private Property Rights from Regulatory Takings.
Subcommittee on the Constitution. February 10, 1995.
43. Gun Laws and the Need for Self-Defense. (Parts 1 and 2).
Subcommittee on Crime. March 31, April 5, 1995.
44. Immigration in the National Interest Act of 1995. Subcommittee
on Immigration and Claims. June 29, 1995. (H.R. 1915).
45. Members' Forum on Immigration. Subcommittee on Immigration and
Claims. May 24, 1995.
46. Legal Immigration Reform Proposals. Subcommittee on Immigration
and Claims. May 17, 1995.
47. Effectiveness of Mandatory Busing in Cleveland. Subcommittee on
the Constitution. May 17, 1995 (Cleveland, Ohio).
48. Nature, Extent, and Proliferation of Federal Law Enforcement.
Subcommittee on Crime. Part 1--An Introduction and Overview. November
15, 1995.
49. Rising Scourge of Methamphetamine in America. Subcommittee on
Crime. October 26, 1995.
50. Societal and Legal Issues Surrounding Children Born in the
United States to Illegal Alien Parents. Subcommittee on Immigration and
Claims and the Subcommittee on the Constitution. December 13, 1995.
(H.R. 705, H.R. 1363, H.J.Res. 56, H.J.Res. 64, H.J.Res. 87, H.J.Res.
88, and H.J.Res. 93).
51. Nature and Threat of Violent Anti-Government Groups in America.
Subcommittee on Crime. November 2, 1995.
52. Combating Domestic Terrorism. Subcommittee on Crime. May 3,
1995.
53. Copyright Term. Film Labeling, and Film Preservation
Legislation. Subcommittee on Courts and Intellectual Property. June 1
(Pasadena, California). July 13, 1995. (H.R. 989, H.R. 1248, and H.R.
1734).
54. Guest Worker Programs. Subcommittee on Immigration and Claims.
December 7, 1995.
55. Serial Killers and Child Abductions. Subcommittee on Crime.
September 14, 1995.
56. U.S. Commission on Civil Rights. Subcommittee on the
Constitution. October 19, 1995.
57. Professional Sports Franchise Relocation. Antitrust
Implications. Committee on the Judiciary. February 6, 1996. (Oversight
H.R. 2699 and H.R. 2740).
58. Madrid Protocol Implementation Act and Federal Trademark
Dilution Act of 1995. Subcommittee on Courts and Intellectual Property.
July 19, 1995. (H.R. 1270 and H.R. 1295).
59. Term limits for Members of the U.S. House and Senate.
Subcommittee on the Constitution. February 3, 1995.
60. Equal Opportunity Act of 1995. Subcommittee on the
Constitution. December 7, 1995. (H.R. 2128).
61. Ethics in Government and Lobbying Reform Proposals.
Subcommittee on the Constitution. March 22, 1996.
62. Lobbying Disclosure Reform Proposals. Subcommittee on the
Constitution. September 7, 1995.
63. Patent and Trademark Office Government Corporation.
Subcommittee on Courts and Intellectual Property. September 14, 1995.
March 8, 1996. (H.R. 1659, H.R. 1756, and H.R. 2533).
64. Authorization of the Civil Rights Division of the Department of
Justice. Subcommittee on the Constitution. July 20, 1995.
65. Religious Liberty and the Bill of Rights. Subcommittee on the
Constitution. June 8 (Washington, D.C.), 10 (Harrisonburg, Virginia),
23 (Tampa, Florida), July 10 (New York, New York), 14 (Oklahoma City,
Oklahoma), 1995.
66. Health Care Reform Issues: Antitrust, Medical Malpractice
Liability, and Volunteer Liability. Committee on the Judiciary.
February 27, 28, 1996. (H.R. 911, H.R. 2925, and H.R. 2938).
67. Regulatory Fair Warning Act. Subcommittee on Commercial and
Administrative Law. May 2, 1996. (H.R. 3307).
68. Bilingual Voting Requirements Repeal Act. Subcommittee on the
Constitution. April 18, 1996. (H.R. 351).
69. Defense of Marriage Act. Subcommittee on the Constitution. May
15, 1996. (H.R. 3396).
70. Combating Crime in the District of Columbia. Subcommittee on
Crime. June 22, 1995.
71. Performance of the Social Security Administration's Office of
Hearings and Appeals in Mobile, AL, and Related Issues. Subcommittee on
Commercial and Administrative Law. June 5, 1996.
72. Activities of Federal Law Enforcement Agencies Toward the
Branch Davidians. (Parts 1, 2, and 3). Subcommittee on Crime of the
Committee on the Judiciary and the Subcommittee on National Security,
International Affairs, and Criminal Justice of the Committee on
Government Reform and Oversight. July 19, 20, 21, 24, 25, 26, 27, 28,
31, August 1, 1995.
73. Effects of Anesthesia During a Partial-Birth Abortion.
Subcommittee on the Constitution. March 21, 1996.
74. Group Preferences and the Law. Subcommittee on the
Constitution. April 3, June 1 (San Diego, California), October 25,
1995.
75. Intellectual Property Antitrust Protection Act of 1995.
Committee on the Judiciary. May 14, 1996. (H.R. 2674).
76. Exemption from Local Taxation for Wireless Service Providers.
Subcommittee on Commercial and Administrative Law, July 25, 1996.
77. Interstate Compacts; Reauthorization on the Negotiated
Rulemaking Act. Subcommittee on Commercial and Administrative Law. June
27, 1996. (H.J.Res. 113 and H.J.Res. 166 Oversight).
78. Assisted Suicide in the United States. Subcommittee on the
Constitution. April 29, 1996.
79. COPS Program. Subcommittee on Crime. December 7, 1995.
80. Origins and Scope of Roe v. Wade. Subcommittee on the
Constitution. April 22, 1996.
81. War Crimes Act of 1995. Subcommittee on Immigration and Claims.
June 12, 1996. (H.R. 2587).
82. Marijuana Use in America. Subcommittee on Crime. March 6, 1996.
83. The Growing Threat of International Organized Crime.
Subcommittee on Crime. January 25, 1996.
84. FBI Murder Investigation in Haiti. Subcommittee on Crime.
January 31, 1996.
85. Legal Services Corporation. Subcommittee on Commercial and
Administrative Law. June 26, 1996.
86. Possible Shifting of Refugees Resettlement to Private
Organizations. Subcommittee on Immigration and Claims. August 1, 1996.
87. U.S. Trustee Program. Subcommittee on Commercial and
Administrative Law. July 24, 1996.
88. Voluntary Environmental Self-Evaluation Act. Subcommittee on
Commercial and Administrative Law. June 29, 1995. (H.R. 1047).
89. Legislation Concerning Compacts. Subcommittee on Commercial and
Administrative Law. September 18, 1996. (H.J.Res. 189, H.J.Res. 193,
and H.J.Res. 194).
90. Federal Recordkeeping and Sex Offenders. Subcommittee on Crime.
June 19, 1996.
91. Proposals for a Constitutional Amendment to Provide Rights for
Victims of Crime. Committee on the Judiciary July 11, 1996. (H.J.Res.
173 and H.J.Res. 174).
92. Independent Counsel Statute and Independent Counsel
Accountability and Reform Act. Subcommittee on Crime February 29, 1996.
(H.R. 892).
93. Role of Congress in Monitoring Administrative Rulemaking.
Subcommittee on Commercial and Administrative Law. September 12, 1996.
(Oversight H.R. 47, H.R. 2727, and H.R. 2990).
94. Civil Asset Forfeiture Reform Act. Committee on the Judiciary.
July 22, 1996. (H.R. 1916).
95. Oversight Hearing on the Impact of Adarand v. Pena: The
Constitutionality of Race-Based Preferences. Subcommittee on the
Constitution of the House Committee on the Judiciary jointly with the
Subcommittee on the Constitution. Federalism, and Property Rights of
the Senate Committee on the Judiciary. September 22, 1995.
96. Flag Desecration Amendment to the Constitution. Subcommittee on
the Constitution. May 24, 1995, May 24, 1995. (H.J.Res. 79).
97. Consumer Fraud Prevention Act of 1995. Subcommittee on Crime.
April 18, 1996. (H.R. 1499).
98. Church Fires in the Southeast. Committee on the Judiciary. May
21, 1996.
99. Taking Back Our Streets Act of 1995. Subcommittee on Crime.
January 19, 20, 1995. (H.R. 3).
100. Security and Freedom Through Encryption (SAFE) Act. Committee
on the Judiciary. September 25, 1996 (H.R. 3011).
101. Parole Commission Phaseout Act of 1995. Subcommittee on Crime.
June 6, 1996. (S. 1507).
* Medical Procedures Innovation and Affordability Act and the
Inventor Protection Act of 1995. Subcommittee on Courts and
Intellectual Property. October 19, 1995, (H.R. 1127 and H.R. 2419).
* Law Enforcement Officers Civil Liability Act of 1995.
Subcommittee on Courts and Intellectual Property. November 9, 1995.
(H.R. 1446).
* Anticounterfeiting Consumer Protection Act of 1995. Subcommittee
on Courts and Intellectual Property. December 7, 1995. (H.R. 2511).
* Federal Courts Improvement Act of 1995. Subcommittee on Courts
and Intellectual Property. March 14, 1996. (H.R. 1989).
* Ethical Standards for Federal Prosecutors Act of 1996.
Subcommittee on Courts and Intellectual Property. September 12, 1996.
(H.R. 3386).
* United States Sentencing Commission. Subcommittee on Crime.
December 14, 1995.
* Captive Exotic Animal Protection Act of 1995. Subcommittee on
Crime. April 25, 1996. (H.R. 1202).
* Economic Espionage. Subcommittee on Crime. May 9, 1996.
* Nature Extent and Proliferation of Federal Law Enforcement.
Subcommittee on Crime. Part 2--State and Local Law Enforcement
Perspectives. May 23, 1996.
* Violent Youth Predator Act of 1996 Balanced Juvenile Justice and
Crime Prevention Act of 1996. Subcommittee on Crime. June 27, 1996.
(H.R. 3565 and H.R. 3445).
* Rights and Benefits of State and Local Law Enforcement Officers.
Subcommittee on Crime. July 18, 1996. (H.R. 218, H.R. 892, H.R. 1805,
H.R. 2912, and H.R. 3263).
* Administration's Efforts Against the Influence of Organized Crime
in the Laborers' International Union of North America. Subcommittee on
Crime. July 24, 25, 1996.
* Comprehensive Methamphetamine Control Act of 1996. Subcommittee
on Crime. September 5, 1996. (H.R. 3852).
* Children's Privacy Protection and Parental Empowerment Act.
Subcommittee on Crime. September 12, 1996. (H.R. 3508).
* Federal Prison Industries, Incorporated. Subcommittee on Crime.
September 18, 1996.
* Witness Protection Programs in America. Subcommittee on Crime.
November 7, 1996 (Orlando, Florida).
* Chattahoochee Compact and the Bi-State Development Agency.
Subcommittee on Commercial and Administrative Law. October 19, 1995.
(H.R. 2064 and H.J.Res. 78).
* Vermont-New Hampshire Interstate Public Water Supply Compact.
Subcommittee on Commercial and Administrative Law. February 29, 1996.
(H.J.Res. 129).
* Interim Recommendations on Legal Immigration Reform of the
Commission on Immigration Reform. Subcommittee on Immigration and
Claims of the House Committee on the Judiciary jointly with the
Subcommittee on Immigration of the Senate Committee on the Judiciary.
June 28, 1995.
* Legal Immigration Projections. Subcommittee on Immigration and
Claims. May 16, 1996.
* Removal of Criminal and Illegal Aliens. Subcommittee on
Immigration and Claims. September 5, 1996.
* Alleged Deception of Congressional Task Force Delegation to the
Miami District of the Immigration and Naturalization Service.
Subcommittee on Immigration and Claims. September 12, 1996.
* Ricky Ray Hemophilia Relief Fund Act of 1995. Subcommittee on
Immigration and Claims. September 19, 1996. (H.R. 1023).
* Parental Rights and Responsibilities Act of 1995. Subcommittee on
the Constitution. October 26, 1995. (H.R. 1946).
* Constitutional Amendment Requiring Two-Thirds Majorities for
Bills Increasing Taxes. Subcommittee on the Constitution. March 6,
1996. (H.J.Res. 159).
* Legislative Responses to School Desegregation Litigation.
Subcommittee on the Constitution. April 16, 1996.
* Religious Freedom Protection. Subcommittee on the Constitution.
July 23, 1996. (H.J.Res. 184).
* U.S. Commission on Civil Rights. Subcommittee on the
Constitution. July 24, 1996.
* Protection of Freedom of Speech and Neighborhood Safety Under the
Fair Housing Act. Subcommittee on the Constitution. September 5, 1996.
Committee Prints
Serial No. and Title
__________
1. Immigration and Nationality Act (Reflecting Laws Enacted as of
May 1, 1995) With Notes and Related Laws--10th Edition. May 1995.
2. Federal Rules of Appellate Procedure. December 1, 1995.
3. Federal Rules of Civil Procedure. December 1, 1995.
4. Federal Rules of Criminal Procedure. December 1, 1995.
5. Federal Rules of Evidence. December 1, 1995.
6. Physician-Assisted Suicide and Euthanasia in the Netherlands. A
Report of Chairman Charles T. Canady to the Subcommittee on the
Constitution of the Committee on the Judiciary. September 1996.
7. Federal Rules of Appellate Procedure. December 1, 1996.
8. Federal Rules of Civil Procedure. December 1, 1996.
9. Federal Rules of Criminal Procedure. December 1, 1996.
10. Federal Rules of Evidence. December 1, 1996.
11. Fair Use Guidelines for Educational Multimedia. Subcommittee on
Courts and Intellectual Property. December 1996.
House Documents
H. Doc. No. and Title
__________
104-31. Proposed Legislation: ``The Omnibus Counterterrorism Act of
1995''. Message from the President of the United States transmitting a
draft of proposed legislation to improve the ability of the United
States to respond to the international terrorist threat. February 9,
1995. (Presidential Message No. 16).
104-64. Amendments to the Federal Rules of Civil Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Civil Procedure
that have been adopted by the Court, pursuant to 28 U.S.C. 2072. May 2,
1995. (Executive Communication No. 804).
104-65. Amendments to the Federal Rules of Criminal Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Criminal
Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
2072. May 2, 1995. (Executive Communication No. 805).
104-66. Amendments to the Federal Rules of Appellate Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Appellate
Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
2072. May 2, 1995. (Executive Communication No. 809).
104-67. Amendments to the Federal Rules of Bankruptcy Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Bankruptcy
Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
2075. May 2, 1995. (Executive Communication No. 810).
104-68. Proposed Legislation: ``Immigration Enforcement
Improvements Act of 1995''. Message from the President of the United
States transmitting a draft of proposed legislation entitled,
``Immigration Enforcement Improvements Act of 1995''. Referred jointly
to the Committees on the Judiciary, Economic and Educational
Opportunities, and Commerce. May 3, 1995. (Presidential Message No.
44).
104-71. Proposed Legislation: ``Antiterrorism Amendments Act of
1995''. Message from the President of the United States transmitting a
draft of proposed legislation entitled, ``Antiterrorism Amendments Act
of 1995''. Referred jointly to the Committee on the Judiciary, Banking
and Financial Services, and Commerce. May 9, 1995. (Presidential
Message No. 45).
104-72. Proposed Legislation: ``The Gun-Free School Zones
Amendments Act of 1995''. Message from the President of the United
States transmitting a draft of proposed legislation to amend the Gun-
Free School Zones Act of 1990 to provide the necessary nexus with
interstate commerce. May 10, 1995. (Presidential Message No. 47).
104-90. Proposed Legislation: ``Saving Law Enforcement Lives Act of
1995''. Message from the President of the United States transmitting a
draft of proposed legislation to save the lives of America's law
enforcement officers. June 30, 1995 (Presidential Message No. 61).
104-150. Veto of H.R. 1058. Message from the President of the
United States transmitting his veto of H.R. 1058, a bill to reform
Federal securities litigation and for other purposes. December 20,
1995.
104-164. Veto of H.R. 4. Message from the President of the United
States transmitting his veto of H.R. 4, the ``Personal Responsibility
and Work Opportunity Act of 1995''. Referred to the Committee on Ways
and Means. January 22, 1996.
104-197. Veto of H.R. 1561. Message from the President of the
United States transmitting his veto of H.R. 1561, a bill entitled
``Foreign Relations Authorization Act, Fiscal Years 1996 and 1997.
April 15, 1996.
104-198. Veto of H.R. 1833. Message from the President of the
United States transmitting his veto of H.R. 1833, a bill to amend title
18, United States Code, to ban partial-birth abortions. April 15, 1996.
(Presidential Message No. 148).
104-201. Amendments to the Federal Rules of Civil Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Civil Procedure
that have been adopted by the Court, pursuant to 28 U.S.C. 2072. April
24, 1996. (Executive Communication No. 2487).
104-202. Amendments to the Federal Rules of Criminal Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Criminal
Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
2072. April 24, 1996. (Executive Communication No. 2488).
104-203. Amendments to the Federal Rules of Appellate Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Appellate
Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
2072. April 24, 1996. (Executive Communication No. 2489).
104-204. Amendments to the Federal Rules of Bankruptcy Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Bankruptcy
Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
2075. April 24, 1996. (Executive Communication No. 2490).
104-207. Veto of H.R. 956. Message from the President of the United
States transmitting his veto of H.R. 956, a bill to establish legal
standards and procedures for product liability litigation, and for
other purposes. May 6, 1996.
Nonlegislative House Reports
H. Rept. No. and Title
__________
104-749. Investigation into the Activities of Federal Law
Enforcement Agencies Toward the Branch Davidians. Report by the
Committee on Government Reform and Oversight prepared in conjunction
with the Committee on the Judiciary (based on a joint investigation by
the Subcommittee on National Security, International Affairs, and
Criminal Justice of the Committee on Government Reform and Oversight
and the Subcommittee on Crime of the Committee on the Judiciary).
August 2, 1996. (Committed to the Union Calendar).
Summary of Activities of the Committee on the Judiciary
Public Laws
----------
A variety of legislation within the Committee's
jurisdiction was enacted into law during the 104th Congress.
The public laws are listed below and are more fully detailed in
the subsequent sections of this report recounting the
activities of the Committee and its individual subcommittees.
Public Law 104-1--To make certain laws applicable to the
legislative branch of the Federal Government. ``Congressional
Accountability Act of 1995''. (S. 2) (Approved January 23,
1995; effective dates vary).
Public Law 104-3--To amend the charter of the Veterans of
Foreign Wars to make eligible for membership those veterans
that have served within the territorial limits of South Korea.
(S. 257) (Approved March 7, 1995).
Public Law 104-4--To curb the practice of imposing unfunded
Federal mandates on States and local governments; to strengthen
the partnership between the Federal Government and State, local
and tribal governments; to end the imposition in the absence of
full consideration by Congress, of Federal mandates on State,
local, and tribal governments without adequate funding, in a
manner that may displace other essential governmental
priorities; and to ensure that the Federal Government pays the
costs incurred by those governments in complying with certain
requirements under Federal statutes and regulations; and for
other purposes. ``Unfunded Mandates Reform Act of 1995''. (S.
1) (Approved March 22, 1995).
Public Law 104-33--To make the reporting deadlines for
studies conducted in Federal court demonstration districts
consistent with the deadlines for pilot districts, and for
other purposes. (S. 464) (Approved October 3, 1995).
Public Law 104-34--To clarify the rules governing venue,
and for other purposes. (S. 532) (Approved October 3, 1995).
Public Law 104-38--To disapprove of amendments to the
Federal Sentencing Guidelines relating to lowering of crack
sentences and sentences for money laundering and transactions
in property derived from unlawful activity. (S. 1254) (Approved
October 30, 1995).
Public Law 104-39--To amend title 17, United States Code,
to provide an exclusive right to perform sound recordings
publicly by means of digital transmissions, and for other
purposes. ``Digital Performance Right in Sound Recordings Act
of 1995''. (S. 227) (Approved November 1, 1995; general
effective date February 2, 1996; effective date November 1,
1995, for ``Authority for Negotiations'' and ``Licenses for
Nonexempt Subscription Transmissions'' provisions).
Public Law 104-41--To amend title 35, United States Code,
with respect to patents on biotechnological processes. (S.
1111) (Approved November 1, 1995).
Public Law 104-51--To amend the Immigration and Nationality
Act to update references in the classification of children for
purposes of United States immigration laws (S. 457) (Approved
November 15, 1995).
Public Law 104-60--To amend the commencement dates of
certain temporary Federal judgeships. (S. 1328) (Approved
November 28, 1995).
Public Law 104-63--To modify the operation of the antitrust
laws, and of State laws similar to the antitrust laws, with
respect to charitable gift annuities. ``Charitable Gift
Annuity, Antitrust Relief Act of 1995''. (H.R. 2525) (Approved
December 8, 1995; effective with respect to conduct occurring
before, on, or after the date of enactment).
Public Law 104-65--To provide for the disclosure of
lobbying activities to influence the Federal Government, and
for other purposes. ``Lobbying Disclosure Act of 1995'' (S.
1060) (Approved December 19, 1995; effective date January 1,
1996).
Public Law 104-67--To reform Federal securities litigation
and for other purposes. ``Private Securities Litigation Reform
Act of 1995'' (H.R. 1058) (Became law December 22, 1995, over
the objections of the President).
Public Law 104-71--To combat crime by enhancing the
penalties for certain sexual crimes against children. ``Sex
Crimes Against Children Prevention Act of 1995''. (H.R. 1240)
(Approved December 23, 1995).
Public Law 104-76--To amend the Fair Housing Act to modify
the exemption from certain familial status discrimination
prohibitions granted to housing for older persons. ``Housing
for Older Persons Act of 1995''. (H.R. 660) (Approved December
28, 1995).
Public Law 104-88--To abolish the Interstate Commerce
Commission, to amend subtitle IV of title 49, United States
Code, to reform economic regulation of transportation, and for
other purposes. ``ICC Termination Act of 1995''. (H.R. 2539)
(Approved December 29, 1995; effective date January 1, 1996).
Public Law 104-95--To amend title 4 of the United States
Code to limit State taxation of certain pension income. (H.R.
394) (Approved January 10, 1996; effective with respect to
amounts received after December 31, 1995).
Public Law 104-98--To amend the Trademark Act of 1946 to
make certain revisions relating to the protection of famous
marks. ``Federal Trademark Dilution Act of 1995''. (H.R. 1295)
(Approved January 16, 1996).
Public Law 104-104--To promote competition and reduce
regulation in order to secure lower prices and higher quality
services for American telecommunications consumers and
encourage the rapid deployment of new telecommunications
technologies. ``Telecommunications Act of 1996''.
``Communications Decency Act of 1996''. (S. 652) (Approved
February 8, 1996; effective dates vary).
Public Law 104-106--To authorize appropriations for fiscal
year 1996 for military activities of the Department of Defense,
for military construction, and for defense activities of the
Department of Energy, to prescribe personnel strengths for such
fiscal year for the Armed Forces, to reform acquisition laws
and information technology management of the Federal
Government, and for other purposes. ``National Defense
Authorization Act for Fiscal Year 1996''. ``Ballistic Missile
Defense Act of 1995''. ``Military Justice Amendments of 1995''.
``Corporation for the Promotion of Rifle Practice and Firearms
Safety Act''. ``Military Construction Authorization Act for
Fiscal Year 1996''. ``Illinois Land Conservation Act of 1995''.
``Panama Canal Commission Authorization Act for Fiscal Year
1996''. ``Panama Canal Amendments Act of 1995''. ``Federal
Acquisition Reform Act of 1996''. ``Information Technology
Management Reform Act of 1996''. (S. 1124) (Approved February
10, 1996; effective dates vary).
Public Law 104-114--To seek international sanctions against
the Castro government in Cuba, to plan for support of a
transition government leading to a democratically elected
government in Cuba, and for other purposes. ``Cuban Liberty and
Democratic Solidarity (LIBERTAD) Act of 1996''. (H.R. 927)
(Approved March 12, 1996).
Public Law 104-121--To provide for enactment of the Senior
Citizens' Right to Work Act of 1996, the Line Item Veto Act,
and the Small Business Growth and Fairness Act of 1996, and to
provide for a permanent increase in the public debt limit.
``Contract with America Advancement Act of 1996''. ``Senior
Citizens' Right to Work Act of 1996''. ``Small Business
Regulatory Enforcement Fairness Act of 1996''. (H.R. 3136)
(Approved March 29, 1996; effective dates vary) .
Public Law 104-125--To grant the consent of the Congress to
certain additional powers conferred upon the Bi-State
Development Agency by the States of Missouri and Illinois.
(H.J. Res. 78) (Approved April 1, 1996; effective date January
1, 1995).
Public Law 104-126--Granting the consent of Congress to the
Vermont-New Hampshire Interstate Public Water Supply Compact.
(S.J. Res. 38) (Approved April 1, 1996).
Public Law 104-132--To deter terrorism, provide justice for
victims, provide for an effective death penalty, and for other
purposes. ``Antiterrorism and Effective Death Penalty Act of
1996''. ``Mandatory Victims Restitution Act of 1996''.
``Justice for Victims of Terrorism Act of 1996''. (S. 735)
(Approved April 24, 1996; effective dates vary).
Public Law 104-144--To grant the consent of Congress to an
amendment of the Historic Chattahoochee Compact between the
States of Alabama and Georgia (H.R. 2064) (Approved May 16,
1996).
Public Law 104-145--To amend the Violent Crime Control and
Law Enforcement Act of 1994 to require the release of relevant
information to protect the public from sexually violent
offenders. ``Megan's Law''. (H.R. 2137) (Approved May 17,
1996).
Public Law 104-152--To amend the anti-car theft provisions
of title 49, United States Code, to increase the utility of
motor vehicle title information to State and Federal law
enforcement officials, and for other purposes. ``Anti-Car Theft
Improvements Act of 1996''. (H.R. 2803) (Approved July 2,
1996).
Public Law 104-153--To control and prevent commercial
counterfeiting, and for other purposes. ``Anticounterfeiting
Consumer Protection Act of 1996''. (S. 1136) (Approved July 2,
1996).
Public Law 104-155--To amend title 18, United States Code,
to clarify the Federal jurisdiction over offenses relating to
damage to religious property. ``Church Arson Prevention Act of
1996''. (H.R. 3525) (Approved July 3, 1996).
Public Law 104-169--To create the National Gambling Impact
and Policy Commission. ``National Gambling Impact Study
Commission Act''. (H.R. 497) (Approved August 3, 1996).
Public Law 104-175--To authorize a circuit judge who has
taken part in an in banc hearing of a case to continue to
participate in that case after taking senior status, and for
other purposes. (S. 531) (Approved August 6, 1996).
Public Law 104-176--Granting the consent of Congress to the
compact to provide for joint natural resource management and
enforcement of laws and regulations pertaining to natural
resources and boating at the Jennings Randolph Lake Project
lying in Garrett County, Maryland and Mineral County, West
Virginia, entered into between the States of West Virginia and
Maryland. (S.J. Res. 20) (Approved August 6, 1996).
Public Law 104-177--To amend title 18 of the United States
Code to allow members of employee associations to represent
their views before the United States Government. ``Federal
Employee Representation Improvement Act of 1996''. (H.R. 782)
(Approved August 6, 1996).
Public Law 104-178--To amend title 18, United States Code,
to repeal the provision relating to Federal employees
contracting or trading with Indians. (H.R. 3215) (Approved
August 6, 1996).
Public Law 104-179--To amend the Ethics in Government Act
of 1978 to extend the authorization of appropriations for the
Office of Government Ethics for 3 years, and for other
purposes. ``Office of Government Ethics Authorization Act of
1996''. (H.R. 3235) (Approved August 6, 1996).
Public Law 104-181--Granting the consent of Congress to the
Mutual Aid Agreement between the city of Bristol, Virginia, and
the city of Bristol, Tennessee. (H.J. Res. 166) (Approved
August 6, 1996).
Public Law 104-191--To amend the Internal Revenue Code of
1986 to improve portability and continuity of health insurance
coverage in the group and individual markets, to combat waste,
fraud, and abuse in health insurance and health care delivery,
to promote the use of medical savings accounts, to improve
access to long-term care services and coverage, to simplify the
administration of health insurance, and for other purposes.
``Health Insurance Portability and Accountability Act of
1996''. (H.R. 3103) (Approved August 21, 1996; effective dates
vary).
Public Law 104-192--To amend title 18, United States Code,
to carry out the international obligations of the United States
under the Geneva Conventions to provide criminal penalties for
certain war crimes. ``War Crimes Act of 1996''. (H.R. 3680)
(Approved August 21, 1996.)
Public Law 104-198--To confer jurisdiction on the United
States Court of Federal Claims with respect to land claims of
Pueblo of Isleta Indian Tribe (H.R. 740) (Approved September
18, 1996).
Public Law 104-199--To define and protect the institution
of marriage ``Defense of Marriage Act''. (H.R. 3396) (Approved
September 21, 1996).
Public Law 104-201--To authorize appropriations for fiscal
year 1997 for military activities of the Department of Defense,
for military construction, and for defense activities of the
Department of Energy to prescribe personnel strengths for such
fiscal year for the Armed Forces, and for other purposes.
``National Defense Authorization Act for Fiscal Year 1997''.
``National Imagery and Mapping Agency Act of 1996''. ``Reserve
Forces Revitalization Act of 1996''. ``Defense Against Weapons
of Mass Destruction Act of 1996'' ``Department of Defense
Civilian Intelligence Personnel Policy Act of 1996''.
``Military Construction Authorization Act for Fiscal Year
1997''. ``Fort Carson-Pinon Canyon Military Lands Withdrawal
Act''. ``El Centro Naval Air Facility Ranges Withdrawal Act''.
``Waste Isolation Pilot Plant Land Withdrawal Amendment Act''.
``Panama Canal Commission Authorization Act for Fiscal Year
1997''. ``Panama Canal Act Amendments of 1996''. (H.R. 3230)
(Approved September 23, 1996, effective dates vary).
Public Law 104-208--Making appropriations for the
Department of Defense for the fiscal year ending September 30,
1997, and for other purposes. (H.R. 3610) (Approved September
30, 1996).
Public Law 104-214--To amend title 18, United States Code,
with respect to witness retaliation, witness tampering and jury
tampering. (H.R. 3120) (Approved October 1, 1996).
Public Law 104-217--To amend title 18, United States Code,
to clarify the intent of Congress with respect to the Federal
carjacking prohibition. ``Carjacking Correction Act of 1996''.
(H.R. 3676) (Approved October 1, 1996).
Public Law 104-218--To confer honorary citizenship of the
United States on Agnes Gonxha Bojaxhiu, also known as Mother
Teresa. (H.J. Res. 191) (Approved October 1, 1996).
Public Law 104-219--To clarify the rules governing removal
of cases to Federal court, and for other purposes. (S. 533)
(Approved October 1, 1996).
Public Law 104-220--To repeal a redundant venue provision,
and for other purposes. (S. 677) (Approved October 1, 1996).
Public Law 104-232--To provide for the extension of the
Parole Commission to oversee cases of prisoners sentenced under
prior law, to reduce the size of the Parole Commission, and for
other purposes. ``Parole Commission Phaseout Act of 1996''. (S.
1507) (Approved October 2, 1996).
Public Law 104-235--To modify and reauthorize the Child
Abuse Prevention and Treatment Act, and for other purposes.
``Child Abuse Prevention and Treatment Act Amendments of
1996''. (S. 919) (Approved October 3, 1996).
Public Law 104-236--To provide for the nationwide tracking
of convicted sexual predators, and for other purposes. ``Pam
Lychner Sexual Offender Tracking and Identification Act of
1996''. (S. 1675) (Approved October 3, 1996; effective date
October 3, 1997, except for certain State compliance
provisions).
Public Law 104-237--To prevent the illegal manufacturing
and use of methamphetamine. ``Comprehensive Methamphetamine
Control Act of 1996''. (S. 1965) (Approved October 3, 1996).
Public Law 104-238--To provide educational assistance to
the dependents of Federal law enforcement officials who are
killed or disabled in the performance of their duties.
``Federal Law Enforcement Dependents Assistance Act of 1996''.
(S. 2101) (Approved October 3, 1996).
Public Law 104-280--To provide for the extension of certain
authority for the Marshal of the Supreme Court and the Supreme
Court Police (S. 2100) (Approved October 9, 1996).
Public Law 104-285--To reauthorize the National Film
Preservation Board, and for other purposes. ``National Film
Preservation Act of 1996''. ``National Film Preservation
Foundation Act''. (H.R. 1734) (Approved October 11, 1996).
Public Law 104-287--To codify without substantive change
laws related to transportation and to improve the United States
Code. (H.R. 2297) (Approved October 11, 1996).
Public Law 104-292--To amend title 18, United States Code,
with respect to the crime of false statement in a Government
matter ``False Statements Accountability Act of 1996''. (H.R.
3166) (Approved October 11, 1996).
Public Law 104-294--To amend title 18, United States Code,
to protect proprietary economic information, and for other
purposes. ``Economic Espionage Act of 1996''. (H.R. 3723)
(Approved October 11, 1996).
Public Law 104-302--To To extend the authorized period of
stay within the United States for certain nurses. (S. 2197)
(Approved October 11, 1996; effective date September 30, 1996).
Public Law 104-305--To combat drug-facilitated crimes of
violence, including sexual assaults. ``Drug-Induced Rape
Prevention and Punishment Act of 1996''. (H.R. 4137) (Approved
October 13, 1996).
Public Law 104-308--To enhance fairness in compensating
owners of patents used by the United States. (H.R. 632)
(Approved October 19, 1996; effective with respect to actions
pending on, or brought on or after the date of enactment).
Public Law 104-309--To express the sense of the Congress
that United States Government agencies in possession of records
about individuals who are alleged to have committed Nazi war
crimes should make these records public. (H.R. 1281) (Approved
October 19, 1996).
Public Law 104-317--To make improvements in the operation
and administration of the Federal courts, and for other
purposes (S. 1887) (Approved October 19, 1996).
Public Law 104-319--To strengthen the protection of
internationally recognized human rights. (H.R. 4036) (Approved
October 19, 1996).
Public Law 104-320--To reauthorize alternative means of
dispute resolution in the Federal administrative process, and
for other purposes. ``Administrative Dispute Resolution Act of
1996''. (H.R. 4194) (Approved October 19, 1996; effective dates
vary).
Public Law 104-321--To Granting the consent of Congress to
the Emergency Management Assistance Compact. (H.J. Res. 193)
(Approved October 19, 1996).
Public Law 104-322--To Granting the consent of the Congress
to amendments made by Maryland, Virginia, and the District of
Columbia to the Washington Metropolitan Area Transit Regulation
Compact. (H.J. Res. 194) (Approved October 19, 1996).
Public Law 104-324--To authorize appropriations for the
United States Coast Guard, and for other purposes. (S. 1004)
(Approved October 19, 1996).
Public Law 104-331--To make certain laws applicable to the
Executive Office of the President, and for other purposes (H.R.
3452) (Approved October 26, 1996).
Conference Appointments
Members of the Committee were named by the Speaker as
conferees on the following bills which contained legislative
language within the Committee's Rule X jurisdiction:
H.R. 1058
Members of the Committee served as conferees on H.R. 1058,
the ``Securities Litigation Reform Act.'' H.R. 1058 became law
over the objections of the President, as P.L. 104-67.
H.R. 1530
Members of the Committee served as conferees on H.R. 1530,
the ``National Defense Authorization Act for Fiscal Year
1996.''
H.R. 2491
Members of the Committee served as conferees on H.R. 2491,
the ``Seven-Year Balanced Budget Reconciliation Act of 1995,''
for provisions relating to health care liability reform,
physician service network antitrust coverage and physician
self-policing antitrust exemptions.
I. Health Care Liability Reform
The House, but not the Senate, bill included a series of
provisions aimed at reforming the litigation system as it
relates to health care actions. These reforms were driven by a
recognition that the health care system is burdened by cost-
based pressures, one of which is the threat of liability suits
facing medical practitioners and health care providers and the
large dollar amounts they are forced to spend to protect
themselves against these legal actions.
The principal provisions contained in the House bill are as
follows:
1. Applicability. The proposed legislation would
establish uniform standards for health care liability
actions (including medical malpractice liability
actions) brought in either federal or state court.
These standards would also apply to claims filed in any
alternative dispute resolution (ADR) system established
under federal or state law.
2. Statute of Limitations. No health care liability
claim could be brought more than two years after the
injury is discovered (or should reasonably have been
discovered) and, in no event, more than five years
after the initial injury actually occurred.
3. Non-Economic Damages. The maximum recovery for
non-economic damages (pain and suffering, etc.) could
not exceed $250,000 in a particular case.
4. Joint and Several Liability. A defendant would
only be liable for the amount of non-economic damages
attributable to that defendant's proportionate share of
the fault or responsibility for the claimant's injury.
All defendants would remain jointly liable for economic
losses.
5. Punitive Damages. Punitive damages could not
exceed three times the amount of damages awarded to a
claimant for economic loss or $250,000, whichever is
greater. The determination as to whether punitive
damages should be awarded and the amount would be made
by the judge, not the jury. Either party may request a
separate proceeding (bifurcation) on the issues of
whether punitive damages should be awarded and in what
amount. Punitive damages may not be awarded in a case
where a drug or device was subject to pre-market
approval by the Food and Drug Administration (FDA),
unless there was misrepresentation or fraud.
6. Collateral Source Rule. A defendant may introduce
evidence of amounts paid or likely to be paid to the
claimant through health or accident insurance,
disability coverage, worker's compensation or any other
collateral source.
7. Periodic Payments. The claimant's damages (both
economic and non-economic) will be paid--if in excess
of $50,000--periodically rather than in a lump sum.
These provisions were not included in the conference
report.
II. Easing of Antitrust Barriers for Physician Service
Networks
H.R. 2425 created ``provider service networks''--those
composed of doctors, hospitals, and other entities who actually
deliver health care services--which could be potentially
vigorous competitors for Medicare beneficiaries. The benefits
to the Medicare program of their participation would be lower
costs and higher quality of care than in non-provider sponsored
health plans. Costs would be lower because contracting with a
PSN instead of an insurer could eliminate a layer of profit and
overhead. Quality would be higher because providers, and
particularly physicians, would have direct control over medical
decision-making. Arguably, physicians and other providers are
better qualified than insurers to strike the balance between
conserving costs and meeting the needs of the patient.
The House recognized, however, that there could be
obstacles to the formation of PSNs. One of the most serious is
the application of the antitrust laws to such groups in a
manner which does not allow the network to engage in joint
pricing agreements, regardless of whether its effect on
competition is positive rather than negative. For this reason,
the House bill contained a provision which would grant rule of
reason treatments to provider service networks seeking to
contract for the provision of services under Medicare. For a
more detailed discussion of this issue, see the discussion of
H.R. 2925 in the Full Committee section of this report.
This antitrust provision was not included in the final
conference report because of the application of the Byrd rule
in the Senate.
III. Antitrust Exemption for Medical Self-Regulatory
Entities
Standard setting is a cooperative activity engaged in by
the providers of the health care services in this country.
Those entities have a long history of protecting the public
with standards for medical education, professional ethics, and
specialty certification. These activities have increasingly
been challenged under the antitrust laws in recent years,
typically by those who fail to meet the standards. Congress
attempted to address this problem with the Health Care Quality
Improvement Act of 1986, 42 U.S.C. Sec. 11101 et. seq., which
provided antitrust protection for peer review actions conducted
in good faith. While beneficial, this law shifted the debate in
antitrust litigation over peer review to whether the
participants acted in ``good faith'' and has not served to stem
the tide of antitrust law suits.
The medical self-regulatory entity exemption included in
the House bill would bar antitrust suits against medical self-
regulatory entities that develop or enforce medical standards.
This would include activities such as accreditation of health
care providers and medical education programs and institutions,
technology assessment and risk management, development and
implementation of practice guidelines and parameters, and
official peer review proceedings. The exemption would cover
suits against individual members of the groups which undertake
these activities as well as the organizational entity on whose
behalf they act.
The scope of this antitrust protection is not absolute,
however. Activities by a medical self-regulatory body that are
conducted for purposes of financial gain or which would
interfere with the provision of health care services of a
provider who is not a member of the profession that sets the
standard would not be covered or exempted by this provision.
The conference report did not include this provision.
H.R. 2539
Members of the Committee served as conferees on H.R. 2539,
the ``ICC Termination Act of 1995,'' for consideration of
provisions relating to the applicability of antitrust laws to
carrier mergers and interstate carriers. Also, the Committee's
conferees were appointed to consider provisions dealing with
federal courts and state taxation of interstate commerce with
respect to ad valorum taxes on rail property. The bill was
approved by the President on December 29, 1995 as P.L. 104-88.
H.R. 3103
Members of the Committee served as conferees on H.R. 3103,
the ``Health Coverage Availability and Affordability Act of
1996,'' for consideration of issues relating to health care
liability reform and fraud and abuse, and other issues within
the jurisdiction of the Committee. The bill was approved by the
President on August 21, 1996 as P.L. 104-191. The principal
disputed provisions within the jurisdiction of the Committee
are discussed below:
I. Health Care Liability Reform
The House bill, but not the Senate, included provisions
relating to health care liability reform. Its provisions were
identical to those included in the H.R. 2491, and discussed
above. The conference report did not include these provisions.
The Conferees agreed to modifications to a Senate provision
which would extend Federal Tort Claims Act coverage to certain
medical volunteers in free clinics in order to expand access to
health care services to low-income individuals in medically
under served areas.
II. Fraud and Abuse
Two principal differences existed between the House and
Senate bills in this area. The first concerned the standard to
be imposed for two criminal offenses--the filing of false
statements, and health care fraud. The House bill requires only
that the conduct be ``knowing,'' while the Senate bill requires
``knowing and willing'' conduct. The conferees agreed to adopt
the Senate standard in connection with both the filing of false
statements and the Health Care Fraud offense.
The second open issue involved the availability to the
provider community of advisory opinions concerning violations
of the anti-kickback statute. The House bill would require the
Secretary of HHS to provide these opinions within 30 days of a
request. The opinion would be binding on the Secretary, and
would be available to the public for use as evidence of agency
interpretation of the statute. The Senate bill allows the HHS
Inspector General to issue interpretive rulings, when
appropriate. These rulings would not bind the Secretary in a
particular case, and they would not extend to questions of
fact, such as the intent of the parties or the fair market
value of particular leased space or equipment.
The conferees agreed to adopt the House provision with
modifications. The Secretary will be required to issue a
response to a party requesting an advisory opinion within 60
days, and the advisory opinion provisions will apply to
requests made for opinions on or after the date which is 6
months after the date of enactment. The agreement requires the
Secretary of HHS to consult with the Attorney General prior to
issuing the opinion, and sunsets the entire advisory opinion
process after four years.
H.R. 3230
Members of the Committee served as conferees on H.R. 3230,
the ``National Defense Authorization Act for Fiscal Year
1997.'' Portions of H.R. 3230 within the Committee's
jurisdiction included the repeal of the right of judicial
review in Title 10, U.S.C., relating to missing persons, which
was adopted; a provision relating to stalking of military
personnel, which was adopted with amendments; new third party
liability to the Untied States for certain injuries to members
of the uniformed services, which was adopted; provisions
relating to patent law, which were rejected; a prohibition of
the distribution of information relating to explosive
materials, which was rejected; a federal charter for the Fleet
Reserve Association, which was adopted; and a provision
allowing for military assistance to civilian law enforcement
officials in emergency situations involving biological or
chemical weapons, which was adopted. The bill was approved by
the President on September 23, 1996 as P.L. 104-201.
S. 652
Members of the Committee served as conferees on S. 652, the
``Telecommunications Competition and Deregulation Act of
1995.'' A more detailed description of the subject of this
conference appears below in the discussion of the activities of
the Full Committee. The President approved the bill on February
8, 1996 as P.L. 104-104.
S. 1004
Members of the Committee served as conferees on S. 1004,
the ``Coast Guard Authorization Act of 1995,'' for provisions
dealing with tort liability and criminal penalties relating to
the pilots of aircraft. The President approved the bill on
October 19, 1996, as P.L. 104-324.
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
JOHN CONYERS, Jr., Michigan CARLOS J. MOORHEAD, California
PATRICIA SCHROEDER, Colorado F. JAMES SENSENBRENNER, Jr.,
BARNEY FRANK, Massachusetts Wisconsin
CHARLES E. SCHUMER, New York BILL McCOLLUM, Florida
HOWARD L. BERMAN, California GEORGE W. GEKAS, Pennsylvania
RICK BOUCHER, Virginia HOWARD COBLE, North Carolina
JOHN BRYANT, Texas LAMAR SMITH, Texas
JACK REED, Rhode Island STEVEN SCHIFF, New Mexico
JERROLD NADLER, New York ELTON GALLEGLY, California
ROBERT C. SCOTT, Virginia CHARLES T. CANADY, Florida
MELVIN L. WATT, North Carolina BOB INGLIS, South Carolina
XAVIER BECERRA, California BOB GOODLATTE, Virginia
JOSE E. SERRANO, New York 1 STEPHEN E. BUYER, Indiana
ZOE LOFGREN, California MARTIN R. HOKE, Ohio
SHEILA JACKSON LEE, Texas SONNY BONO, California
MAXINE WATERS, California 2 FRED HEINEMAN, North Carolina
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
MICHAEL PATRICK FLANAGAN, Illinois
BOB BARR, Georgia
----------
\1\ Jose E. Serrano, New York, resigned from the Committee effective
March 14, 1996.
\2\ Maxine Waters, California, was elected to the Committee pursuant to
House Resolution 414, approved by the House April 25, 1996.
Full Committee Activities
During the 104th Congress, the full Judiciary Committee
retained original jurisdiction with respect to a number of
legislative and oversight matters. This included exclusive
jurisdiction over antitrust and liability issues (including
medical malpractice, product liability and legal reform). In
addition, a number of specific legislative issues were handled
exclusively by the full Committee, including the Balanced
Budget Constitutional Amendment, antiterrorism, the Gambling
Commission, church arson, civil asset forfeiture, regulatory
sunset, encryption, and the proposed Victims Rights
Constitutional Amendment.
Legislative Activities
Antitrust
Telecommunications Reform--H.R. 1528, H.R. 1555, P.L. 104-104
Summary.--The 105th Congress passed historic
telecommunications legislation that will usher in a new era in
the industry. The structure of the industry before the passage
of this legislation came about because the Department of
Justice (``DOJ'') brought an antitrust action against the
American Telephone and Telegraph Co. (``AT&T'') in 1974. The
government sought to prevent AT&T from using its local
telephone monopoly: (1) to discriminate against its competitors
in long distance and equipment manufacturing, and (2) to use
revenues from its regulated monopoly in local telephone service
to subsidize its other non-regulated business ventures, a
practice known as cross-subsidization. That action led to a
settlement and consent decree entered in 1982. United States v.
American Telephone and Telegraph Co., 552 F.Supp. 131 (D.D.C.
1982), aff'd, 460 U.S. 1001 (1983). This consent decree is
commonly known as the Modification of Final Judgment (``MFJ'').
Under the terms of the MFJ, AT&T retained its long distance
and manufacturing businesses, but divested itself of its local
telephone exchange monopoly. Effective January 1, 1984, the
local telephone exchange monopolies were taken over by seven
Regional Bell Operating Companies (``RBOCs'')--NYNEX, Bell
Atlantic, BellSouth, Ameritech, SBC Communications, Inc.
(formerly known as Southwestern Bell), U.S. West, and Pacific
Telesis. The RBOCs are completely separate from AT&T, and they
and AT&T had opposing views as to the shape that MFJ reform
legislation should take.
The MFJ prohibited the RBOCs from entering four lines of
business: (1) providing long distance service; (2)
manufacturing telecommunications equipment; (3) providing
information services; and (4) entering into any other non-
telecommunications business. The courts had subsequently
removed the restrictions on information services and non-
telecommunications businesses. However, until the legislation
passed, the RBOCs still could not enter the long distance
business or the manufacturing business.
The RBOCs contended that they would bring increased
competition to these markets. On the other hand, the long
distance companies contended that unless competition in local
exchange service was established before the RBOCs entered the
long distance market, the RBOCs would be able to engage in the
same types of discrimination and cross-subsidization that led
to the AT&T breakup.
Companies could seek waivers from the MFJ's restrictions,
but they had to first submit them to DOJ which made a
recommendation to the Court. The Court then ruled on the
request. The RBOCs contended that this process had broken down
and that DOJ and the Court took too long to act on these
waivers. This is one of the reasons that the RBOCs opposed any
DOJ role in the legislation.
DOJ, on the other hand, maintained that it was doing a good
job of moving the waiver requests along given that they had
become increasingly complicated over the years the MFJ had been
in effect. DOJ argued that this increased complexity was
evidenced by the fact that during 1993 and 1994, it has
received nearly six times the average number of comments per
waiver than it had during the previous nine years. DOJ also
pointed out that in the earlier years, many of the waivers
requested permission to enter non-telecommunications businesses
which required little antitrust analysis. Many of these early
waiver requests were ``me-too'' requests filed by one RBOC
after another RBOC's similar request had already been approved
again requiring little analysis. By contrast, the waiver
requests filed in the last few years went to the core line of
business restrictions and require much more analysis. In
addition, DOJ and the long distance companies contended that
only DOJ had the expertise to analyze properly the competitive
issues involved in MFJ reform. The legislation Chairman Hyde
introduced (H.R. 1528) would have mooted that debate by setting
up a new streamlined process under which DOJ would have had to
act within established time limits. If DOJ had not acted within
the time limit, the RBOCs' applications would have been deemed
approved.
The full Committee held hearings on H.R. 1528 and ordered
it reported with broad, bipartisan support. The Committee
ultimately merged the approach it took in H.R. 1528 with that
taken by the Committee on Commerce into one bill, H.R. 1555,
that passed the House. The Committee participated fully in the
House-Senate Conference Committee, and it led the Conference
negotiations on a number of important issues, including the
transition from the MFJ to the new environment, the role of the
Department of Justice, the repeal of the FCC's authority to
grant antitrust immunity to mergers in the industry, electronic
publishing, alarm monitoring, and other issues.
Hearing and Legislative History.--On May 2, 1995, Chairman
Hyde introduced H.R. 1528, the ``Antitrust Consent Decree
Reform Act of 1995.'' On May 9, 1995, the full Committee held a
hearing on the role of the Department of Justice in
telecommunications which focused heavily on H.R. 1528. (Serial
No. 7) The witnesses were: Hon. Anne K. Bingaman, Assistant
Attorney General, Antitrust Division, United States Department
of Justice, Washington, D.C.; Mr. Bert C. Roberts, Jr.,
Chairman and Chief Executive Officer, MCI Communications
Corporation, Washington, D.C.; Mr. Thomas P. Hester, Executive
Vice President and General Counsel, Ameritech, Chicago,
Illinois; and Mr. Timothy J. Regan, Division Vice President,
Corning, Inc., Washington, D.C.
On May 18, 1995, the Committee marked up H.R. 1528 and
ordered it favorably reported, as amended, by a roll call vote
of 29 ayes to 1 nay. On July 24, 1995, the Committee filed its
report on H.R. 1528. (H. Rept. 104-203, part I). On the same
day, the Committee on Commerce, which had a secondary referral
of H.R. 1528, was discharged from further consideration.
Likewise, the Judiciary Committee, which had a secondary
referral of the Commerce Committee bill, H.R. 1555, was
discharged from further consideration of H.R. 1555.
On August 3, 1995, H.R. 1555, as amended to reflect the
Judiciary Committee approach, passed the House by a roll call
vote of 305 ayes to 117 nays. On October 12, 1995, the House
passed the Senate bill, S. 652, after amending it to substitute
the text of H.R. 1555 as passed by the House thereby setting
the stage for a conference. Fourteen members of the Judiciary
Committee were conferees. On January 31, 1996, the conference
filed its report. (H. Rept. 104-458). On February 1, 1996, the
House and the Senate passed the conference report. On February
8, 1996, the President signed the bill into law. (Public Law
No. 104-104)
Charitable Gift Annuities--H.R. 2525
Summary.--The ``Charitable Gift Annuity Antitrust Relief
Act of 1995'' (H.R. 2525) provides antitrust protection to
organizations which are registered as 501(c)(3) non-profit
entities and exempt from taxation, and which issue charitable
gift annuities. It specifies that agreeing to use, or using the
same annuity rate for the purpose of issuing one or more
charitable gift annuity is not unlawful under the antitrust
laws. The exemption extends to both Federal and State law,
although a state would have three years after enactment to
expressly override application of the bill to its state
antitrust laws.
A charitable gift annuity is a fundraising instrument
defined and regulated under section 501(m)(5) of the Internal
Revenue Code. A person who enters into a gift annuity agreement
with a religious, charitable or educational institution makes a
gift to the institution and receives a fixed income for life.
Since the value of the gift received is more than the property
transferred to the donor, a bargain sale has occurred, and the
difference in values is deductible to the donor.
The Committee learned that charitable giving through gift
annuities was being threatened by a lawsuit pending in the
United States District Court for the Northern District of
Texas. Richie v. American Council on Gift Annuities (Civ. No.
7:94-CV-128-X). The Richie suit alleged that the use of the
same annuity rate by the various charities constitutes price
fixing, and thus a violation of the antitrust laws.
The Committee believed that the application of the
antitrust laws to this situation would be contrary to good
public policy. Congress encourages private gift giving through
legitimate means, and particularly through instruments which
the IRS approves and regulates. Gift annuities carry this
imprimatur. Litigants should not be able to use the antitrust
laws as an impediment to these beneficial activities where, as
here, there is no detriment associated with the conduct. It is
particularly difficult to see what anticompetitive effect the
supposed setting of prices has in a context where the decision
to give is motivated not by price but by interest in and
commitment to a charitable mission.
Furthermore, it is a misnomer to use the term ``price'' to
describe the selection of an annuity rate: in this context an
annuity rate merely determines the portion of the donation to
be returned to the donor, and the portion the charity will
retain. Donors are not primarily buying an annuity; they are
making a gift. It is the idea of helping the charity, not
maximizing return, which stimulates the transaction.
Enactment of H.R. 2525 was intended to provide a complete
defense to the antitrust portions of the Richie suit, as well
as protection from future suits based on the use of agreed-upon
annuity rates.
Legislative History.--H.R. 2525 was introduced by Chairman
Hyde on October 24, 1995, with 14 original cosponsors. It was
favorably reported to the House of Representatives on October
31, 1995, by voice vote, House Report No. 104-336. It passed
the House on the corrections calendar on November 28, 1995, by
a vote of 427 ayes to 0 nays. The Senate received the bill on
November 29, 1996 and immediately adopted the bill by voice
vote. H.R. 2525 was approved on December 8, 1995, as Public Law
104-63.
Intellectual Property Antitrust Protection--H.R. 2674
Summary.--H.R. 2674, introduced by Chairman Hyde, would
eliminate a court-created presumption that market power is
always present for antitrust purposes when a product protected
by an intellectual property right is sold, licensed, or
otherwise transferred. Market power is ``the power to control
prices or exclude competition.'' United States v. E.I. du Pont
de Nemours & Co., 351 U.S. 377, 391 (1956). Many believe that
the market power presumption for intellectual property is wrong
because it is based on false assumptions. Because there are
often substitutes for products covered by intellectual property
rights or there is no demand for the protected product, an
intellectual property right does not automatically confer the
power to determine the overall market price of a product or the
power to exclude competitors from the marketplace. As Justice
O'Connor put it:
A common misconception has been that a patent or
copyright . . . suffices to demonstrate market power.
While [a patent or copyright] might help to give market
power to a seller, it is also possible that a seller in
[that situation] will have no market power: for
example, a patent holder has no market power in any
relevant sense if there are close substitutes for the
patented product.
Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U.S. 2, 37
n.7 (O'Connor, J., concurring in the judgment). See also
Northlake Marketing & Supply, Inc. v. Glaverbel, S.A., 861
F.Supp. 653, 663 (N.D. Ill. 1994).
The recent Antitrust Guidelines for the Licensing of
Intellectual Property--issued jointly by the antitrust
enforcement agencies, the Department of Justice and the Federal
Trade Commission--acknowledge that the court-created
presumption is wrong. The Guidelines state that the enforcement
agencies ``will not presume that a patent, copyright, or trade
secret necessarily confers market power upon its owner.
Although the intellectual property right confers the power to
exclude with respect to the specific product, process, or work
in question, there will often be sufficient actual or potential
close substitutes for such product, process, or work to prevent
the exercise of market power.'' Antitrust Guidelines for the
Licensing of Intellectual Property dated April 6, 1995 at 4
(emphasis in original).
The Guidelines are helpful because they state the
enforcement policies of the Department of Justice and the
Federal Trade Commission. However, they are not a complete
solution to the problem. The agencies are not legally bound by
the Guidelines. More importantly, the Guidelines do not have
any effect on private parties who are free to bring antitrust
suits relying on the presumption.
Unfortunately, some court decisions continue to apply the
erroneous presumption of market power thereby creating an
unintended conflict between the antitrust laws and the
intellectual property laws. Economists and legal scholars have
criticized these decisions, and more importantly, these
decisions have discouraged innovation to the detriment of the
American economy.
A number of Supreme Court and lower federal court decisions
have applied the erroneous presumption construing patents and
copyrights as automatically giving the intellectual property
owner market power. Jefferson Parish Hospital District No. 2 v.
Hyde, 466 U.S. 2, 16 (1984); United States v. Loews, Inc., 371
U.S. 38, 45 (1962); Lee v. The Life Insurance Co. of North
America, 23 F.3d 14, 16 (1st Cir.), cert. denied, 115 S.Ct. 427
(1994) (Market power ``may be demonstrated, for example, if the
seller holds a monopoly in the tying product (e.g. a patented
product) . . .''); Digidyne Corp. v. Data General Corp., 734
F.2d 1336, 1341-42 (9th Cir. 1984), cert. denied, 473 U.S. 908
(1984); Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 1995
U.S. Dist. Lexis 10807, *8 (E.D. Pa. 1995) (``Market power
arises where the seller has a patent or other government
granted monopoly . . .''). By the same token, some courts have
refused to apply the presumption despite the Supreme Court's
rulings. Abbott Laboratories v. Brennan, 952 F.2d 1346, 1354-55
(Fed. Cir. 1991), cert. denied, 505 U.S. 1205 (1992); A.I. Root
Co. v. Computer/Dynamics, Inc., 806 F.2d 673, 676 (6th Cir.
1986). As the Guidelines note, the law is unclear on this
issue. Antitrust Guidelines for the Licensing of Intellectual
Property dated April 6, 1995 at 4 n.10. This lack of clarity
causes uncertainty about the law which, in turn, stifles
innovation and discourages the dissemination of technology.
The best example of the presumption's effect occurs in the
area of tying. Under Supreme Court precedent, tying is subject
to per se treatment under the antitrust laws only if the
defendant has market power in the tying product. However, the
presumption automatically confers market power on any patented
or copyrighted product. Thus, when a patented or copyrighted
product is sold with any other product, it is automatically
reviewed under a harsh per se standard even though the patented
or copyrighted product may not have any market power. As a
result, innovative computer manufacturers may be unwilling to
sell copyrighted software with unprotected hardware--a package
that many consumers desire--because of the fear that this
bundling will be judged as a per se violation of the
prohibition against tying. The disagreement among the courts
only heightens the problem for corporate counsel advising their
clients as to how to proceed. Moreover, it encourages forum
shopping as competitors seek a court that will apply the
presumption. Intellectual property owners need a uniform
national rule enacted by Congress.
Opponents of the bill have testified in the past that
overturning the presumption would encourage tying arrangements
and stifle innovation in the computer field. That contention
assumes that all tying arrangements are necessarily
anticompetitive. In many cases, however, tying is
procompetitive. For example, we all want to buy cars that are
``tied'' to tires, even though we could buy the tires
separately. Tying only becomes anticompetitive when it forces
consumers to buy a separate product that they would not
otherwise buy.
Similar legislation, S. 270, passed the Senate four times
during the 101st Congress with broad, bipartisan support.
During the debate over that legislation, opponents of this
procompetitive measure made various erroneous claims about this
legislation, and they should be corrected. First, this bill
does not create an antitrust exemption. To the contrary, it
eliminates an antitrust plaintiff's ability to rely on a
presumption of market power, which is usually not true, rather
than providing actual proof of market power. Second, this bill
does not in any way affect the remedies, including treble
damages, that are available to an antitrust plaintiff when it
does prove its case. Third, this bill does not change the law
that tying arrangements are deemed to be per se illegal when
the defendant has market power in the tying product. Rather, it
simply requires the plaintiff to prove that the claimed market
power does, in fact, exist before subjecting the defendant to
the per se standard. Fourth, this bill does not legalize any
conduct that is currently illegal.
This bill ensures that intellectual property owners are
treated the same as all other companies under the antitrust
laws, including those relating to tying violations. The bill
does not give them any special treatment, but restores to them
the same treatment that all others receive. The Committee
expects to consider this measure further in the 105th Congress.
Hearing.--Chairman Hyde introduced H.R. 2674 on November
20, 1995. On Tuesday, May 14, 1996, the full Committee held a
legislative hearing on H.R. 2674, the ``Antitrust Intellectual
Property Protection Act of 1995.'' (Serial No. 75) The
witnesses were: Hon. Bruce Lehman, Assistant Secretary of
Commerce and Commissioner of Patents and Trademarks, Patent and
Trademark Office, Arlington, Virginia; Hon. Joel Klein, Deputy
Assistant Attorney General, Antitrust Division, Department of
Justice, Washington, D.C.; Mr. Jacob Frank, Vice-President and
General Counsel, Data General Corporation, Westborough,
Massachusetts; Mr. Gregory Handschuh, Vice-President and
General Counsel, Amdahl Corporation, Sunnyvale, California; Mr.
John Kirk, Jenkens & Gilchrest, Houston, Texas, on behalf of
the Intellectual Property Section of the American Bar
Association; Mr. Larry Evans, Intellectual Property and
Licensing Consultant, South Barrington, Illinois, on behalf of
the Licensing Executives Society; Mr. Abbott Lipsky, Senior
Competition Counsel, Coca-Cola Company, Atlanta, Georgia, on
behalf of Intellectual Property Owners.
Sports Franchise Relocation--H.R. 2740
Summary.--On November 6, 1995, the owner of the Cleveland
Browns of the National Football League (``NFL''), Art Modell,
announced that he was moving the team to Baltimore, Maryland.
Citing financial difficulty, Mr. Modell agreed to move his team
in return for promises from the Maryland Stadium Authority of a
new, multi-million dollar, state-of-the-art stadium. The
Cleveland community, which has fervently supported the Browns
for years, erupted in a storm of protest. In the controversy
which followed, the economic, social, and emotional costs and
benefits of moving professional sports franchises from one city
to another were hotly debated.
The city of Cleveland filed a lawsuit seeking to block the
move. On February 8, 1996, the NFL reached a settlement with
the city which, among other things, would provide Cleveland
with a team by the 1999 season and allow the new team to use
the ``Browns'' nickname. On February 9, the NFL owners voted to
approve the settlement and to approve the relocation of the old
team to Baltimore. Under the NFL Constitution, any move by an
NFL owner must be approved by a three-fourths majority of the
team owners. The owners approved the move by a vote of 25 ayes
to 2 nays.
Franchise relocations have caused continuing controversy
for the NFL. In the 1980s, owner Al Davis moved the Oakland
Raiders to Los Angeles; in 1994, he moved them back to Oakland.
The St. Louis Cardinals moved to Arizona in the late 1980s,
while the Los Angeles Rams recently moved to St. Louis. The
city of Baltimore lost its team in 1984 when the Baltimore
Colts abruptly abandoned that city for Indianapolis, Indiana.
At present, the Houston Oilers are actively seeking to move to
Nashville, the Seattle Seahawks have announced plans to move to
Los Angeles, and there are numerous rumors concerning possible
moves by other teams.
Prior to the 104th Congress, the last time this Committee
had held hearings specifically on the subject of sports
franchise movement was in 1981 and 1982. Since that time, the
number and cost of team movements have dramatically increased.
For example, the state of Maryland has offered over $200
million dollars of public money to entice the Cleveland Browns
to move. Cities are being pitted against each other in ever
escalating bidding wars with public officials desperate to keep
their teams in town.
At the Committee's hearing, the Commissioner of the
National Football League, Paul Tagliabue, testified that the
League needed a ``narrow'' antitrust exemption to have some
control over football franchise relocations. He further
asserted that the decisions in the Oakland Raiders case and
other court decisions severely restrict the NFL's power to
prevent an owner from moving a football team to a new city.
Mr. Tagliabue's contention that the NFL is nearly
powerless to prevent franchise relocations grows out of
litigation in the 1980s over Section 4.3 of the NFL's
Constitution and Bylaws. Section 4.3 provides in relevant part
that: ``No member club shall have the right to transfer its
franchise or playing site to a different city, either within or
outside its home territory, without prior approval by the
affirmative vote of three-fourths of the existing member clubs
of the League.'' When Al Davis announced that he would move the
Oakland Raiders to Los Angeles, the NFL owners voted 22-0 to
block the move under Rule 4.3. Mr. Davis brought an antitrust
suit against the league claiming that the vote under Rule 4.3
amounted to an illegal conspiracy to restrain trade in
violation of Sec. 1 of the Sherman Act.
Mr. Davis ultimately prevailed in the liability phase of
the case on two grounds. Los Angeles Memorial Coliseum
Commission v. National Football League, 726 F.2d 1381 (9th Cir.
1984) (``Raiders I''), cert. denied, 469 U.S. 990 (1984).
First, the Raiders I court held that, as a matter of law, the
NFL is not a single entity incapable of conspiring with itself.
Id. at 1387-90. Rather, the court found that the teams in the
League compete with one another and may conspire with one
another to restrain trade. One judge on the panel vigorously
dissented from this holding arguing that the NFL is a single
entity incapable of conspiring with itself. Id. at 1401, 1403-
10.
Second, the Raiders I court considered whether the jury
properly found that Rule 4.3 was an unreasonable ancillary
restraint to the legitimate and necessary cooperation among NFL
members. Applying a rule of reason analysis, the court held
that ``the jury could have found that the rules restricting
team movement do not sufficiently promote interbrand
competition [i.e. competition among leagues] to justify the
negative impact on intrabrand competition [i.e. competition
among League members].'' Id. at 1397. The court further
suggested that a league rule that included objective criteria
and procedural due process mechanisms might pass antitrust
scrutiny. Id. at 1397-98.
Later, the appeal of the damages phase of the case shed
further light on these issues. Los Angeles Memorial Coliseum
Commission v. National Football League, 791 F.2d 1356 (9th Cir.
1986) (``Raiders II''), cert. denied, 484 U.S. 826 (1987). In
resolving the various claims as to how damages were to be
offset, the Raiders II court held that the jury's verdict
should be read as finding Rule 4.3 illegal only as it applied
to this specific case. Id. at 1369. It was not to be read as
finding the rule invalid in all cases. Id. The court
specifically noted that the trial court's injunction only
prohibited the NFL from enforcing the rule in the circumstances
of this case and not in all other cases. Id. at 1369 & n.4.
In a later case involving the relocation of the NBA's San
Diego Clippers to Los Angeles, the Ninth Circuit reaffirmed the
basic principles it set forth in Raiders I and Raiders II.
National Basketball Association v. SDC Basketball Club, Inc.,
815 F.2d 562 (9th Cir.), cert. dismissed, 484 U.S. 960 (1987).
The court held:
Collectively, the Raiders opinions held that rule of
reason analysis governed a professional sports league's
efforts to restrict franchise movement. More narrowly,
however, Raiders I merely held that a reasonable jury
could have found that the NFL's application of its
franchise movement rule was an unreasonable restraint
of trade. . . . Neither the jury's verdict in Raiders,
nor the court's affirmance of that verdict, held that a
franchise movement rule, in and of itself, was invalid
under the antitrust laws.
815 F.2d at 567.
The decisions in the Raiders cases may be read to mean more
than they do. In particular, analysis of the Raiders decisions
rarely focuses on the fact that the Raiders moved to a market
in which another NFL team, the Los Angeles Rams, was already
playing. That consideration raises competitive issues that are
not present in a more typical move like the Browns' move to
Baltimore where no other team is located. In short, the NFL's
claims that it is powerless to prevent franchise relocations
because of the antitrust laws have not been thoroughly tested,
and they may be based on a decision that arose out of an
atypical fact situation. Nonetheless, the NFL raises a
legitimate concern about the expense and uncertainty of
antitrust treble damage lawsuits hanging over its head for
years.
As noted above, the Raiders I court suggested that an NFL
rule that included objective criteria and procedural mechanisms
to guide league decisions on franchise relocations might pass
antitrust scrutiny. In December 1984, the League adopted a
policy that provides for the types of objective criteria
suggested by the court. These criteria include: (1) the
adequacy of the team's stadium and the willingness of the city
to renovate it; (2) the loyalty of the team's fans; (3) the
extent of the team's public financial support; (4) the degree
to which team management has contributed to the need to move;
(5) the team's financial viability; (6) the degree to which the
team has engaged in good faith negotiations with the city; (7)
whether the existing city and the new city already have other
teams; and (8) whether the stadium authority opposes the move.
That policy also provides a procedural mechanism for
consideration of franchise relocations. However, these
procedural mechanisms apply only to the subject team and other
League members. The policy does not allow the affected
communities any participation in the process. To the
Committee's knowledge, no court has ever reviewed this policy
to determine whether it would violate the antitrust laws.
Despite the decision in Raiders I, there is an ongoing
debate as to whether sports leagues should be treated as single
entities or whether each team should be treated as an
independent firm for antitrust analysis purposes. Many legal
commentators, as well as the NFL, have advanced the single
entity theory arguing that the leagues are joint ventures in
which the owners are partners. Other courts have followed the
Raiders I decision on this point. Sullivan v. NFL, 34 F.3d
1091, 1098-99. (1st Cir. 1994); McNeil v. NFL, 790 F.Supp. 871,
879-80 (D. Minn. 1992).
Professional sports leagues involve elements of both
cooperation and competition. For example, sports leagues adopt
uniform league rules and agree on the appropriate size of the
playing field. Further, they cooperate on scheduling dates, the
number of games played, and the playoff structure. In addition,
they also share revenue from television rights and gate
receipts. The leagues argue that the economic success of each
team depends on the economic strength and stability of the
other league members and that they are not economic
competitors.
Others argue that the teams are separate competing
entities. This argument carries the most weight when two teams
play in the same city, as in the Raiders case. Each club makes
most of its own business decisions on a day-to-day business.
They have separate profit and loss results. Each team
determines its own ticket prices, players' salaries, and player
acquisitions. Each team hires its own coaches, negotiates the
terms of its stadium leases, and enters into its own local
radio broadcasting deals. The Supreme Court has yet to resolve
this issue.
Aside from the franchise relocation issue, the NFL
currently enjoys at least two antitrust exemptions: (1) the
Sports Broadcasting Act, 15 U.S.C. Sec. 1291 et seq., which
allows the teams to market the League's broadcast rights
jointly and (2) the Football Merger Act of 1966, Public Law No.
89-800, 80 Stat. 1508, which allowed the merger of the NFL with
the old American Football League.
H.R. 2740 addressed this issue by providing the sports
leagues with the antitrust exemption that they sought. In
return for this exemption, however, the leagues would have been
required to provide an expansion team for any city that lost a
team if that city could provide the name of a qualified
investor in the expansion team.
Hearing and Legislative History.--Representative Martin
Hoke introduced H.R. 2740, the ``Fan Freedom and Community
Protection Act of 1995,'' on December 7, 1995. Similar
legislation was introduced in the Senate including, S.1439 by
Senator Glenn, and S. 1529 by Senator DeWine. H.R. 2740 was
primarily referred to this Committee with a secondary referral
to the Committee on Commerce. On Tuesday, February 6, 1996, the
full Committee held a legislative and oversight hearing on the
antitrust implications of professional sports franchise
relocations (Serial No. 57). At the hearing, the Committee
considered H.R. 2740, as well as H.R. 2699, the ``Fans Rights
Act,'' introduced by Representative Louis Stokes.
The witnesses were: Hon. Martin Hoke, United States
Representative, 10th District of Ohio; Hon. Michael Patrick
Flanagan, United States Representative, 5th District of
Illinois; Hon. Louis Stokes, United States Representative, 11th
District of Ohio; Hon. John Glenn, United States Senator, State
of Ohio; Mr. Paul Tagliabue, Commissioner, National Football
League, New York, New York; Mr. Jerry Richardson, Owner,
Carolina Panthers, Charlotte, North Carolina; Hon. Joe
Chillura, Countywide Commissioner, Hillsborough County,
Florida; Hon. Bob Lanier, Mayor, Houston, Texas; Hon. Gary
Locke, County Executive, King County, Washington; Mr. John
``Big Dawg'' Thompson, Browns Fan, Cleveland, Ohio; Professor
Gary Roberts, Tulane Law School, New Orleans, Louisiana;
Professor Andy Zimbalist, Smith College, Northampton,
Massachusetts; and Mr. Bruce Keller, Debevoise & Plimpton, New
York, New York, on behalf of the International Trademark
Association.
On Wednesday, April 24, 1996, the full Committee marked up
H.R. 2740. At the markup, the Committee ordered the bill
favorably reported, as amended, by a vote of 24 ayes to 6 nays.
The Committee filed its report on the bill on June 27, 1996
(H.Rept. 104-656, Part I). The Speaker then set the period of
time for consideration by the Committee on Commerce, and that
period was extended several times with the final extension
going through October 4, 1996. The Committee on Commerce did
not file a report, and the bill did not come to the floor.
Health Care Provider Networks, H.R. 2925
Summary.--H.R. 2925 would apply rule of reason treatment to
the conduct of certain health care provider networks. The bill
was intended to prevent antitrust enforcement policies from
imposing an artificial barrier to the utilization of private
cooperative initiatives which can make our health care system
more efficient.
Health care provider networks, or ``HCPNs,''--those
composed of doctors, hospitals, and other entities who actually
deliver health care services--are potentially vigorous
competitors in the health care market. Their formation leads to
lower health care costs and higher quality of care. Costs are
lower because contracting directly with health care providers
eliminates an intermediate layer of overhead and profit.
Quality is higher because providers, and particularly
physicians, have direct control over medical decision-making.
Physicians and other health care professionals are better
qualified than insurers to strike the proper balance between
conserving costs and meeting the needs of the patient.
Concern was raised that the application of current
antitrust enforcement guidelines is discouraging providers from
forming networks which would have a positive effect on
competition. These networks would most likely be found legal
under the antitrust laws, but providers--who are understandably
concerned about potential treble damage liability--are
unwilling to create them in the absence of pre-conduct approval
from the enforcement agencies. H.R. 2925 removes this
artificial barrier to entry, by conforming agency enforcement
practices to the manner in which courts have interpreted and
applied antitrust law.
Antitrust law prohibits agreements among competitors that
fix prices or allocate markets. Such agreements are per se
illegal. Where competitors economically integrate in a joint
venture, however, agreements on prices or other terms of
competition that are reasonably necessary to accomplish to
procompetitive benefits of the integration are not unlawful.
See, e.g., Broadcast Music, Inc. v. Columbia Broadcasting Sys.,
441 U.S. 1, 19-20 (1979). Price setting conduct by these joint
ventures is evaluated under the ``rule of reason,'' that is, on
the basis of its reasonableness, taking into account all
relevant factors affecting competition.
The antitrust laws treat individual physicians as separate
competitors. Thus, networks composed of physicians which set
prices for their services as a group will be considered per se
illegal under the antitrust laws if they are not economically
integrated joint ventures. In the typical provider network,
competing physicians relinquish some of their independence to
permit the venture to win the business of health care
purchasers, such as large employers. These networks promise to
provide services to plan subscribers at reduced rates. The
ventures also achieve another central goal of health care
reform: careful, common sense controls on the provision of
unnecessary care.
However, agreements among physicians who retain a great
deal of independence but set fees for their services as part of
a network bear a striking resemblance to horizontal price
fixing agreements. These are the most disfavored and most
quickly condemned restraints in antitrust jurisprudence. The
key factual question which would distinguish a network that is
per se unlawful from one which, upon consideration of the
circumstances, is acceptable because it is not anticompetitive
in nature, is the degree of integration of the individuals who
form the network.
While the antitrust laws provide substantial latitude in
the context of collaboration among health care professionals,
there is an understandable degree of uncertainty associated
with their enforcement. Because each network involves unique
facts--differences not only in the structure of the network,
but also in the market in which it will compete--the ability of
providers to prospectively determine whether their arrangement
will be considered legal is limited.
In order to eliminate this uncertainty, and to encourage
procompetitive behavior that would otherwise be chilled, the
Department of Justice and Federal Trade Commission have
established a mechanism for prospective review of proposed
HCPNs. In 1993, the antitrust enforcement agencies jointly
issued ``Statements of Enforcement Policy and Analytical
Principles Relating to Health Care and Antitrust.'' These
guidelines, which were amended in 1994, contain safety zones
which describe provider network joint ventures that will not be
challenged by the agencies under the antitrust laws, along with
principles for analysis of joint ventures that fall outside the
safety zones. A group of providers wishing to embark on a joint
venture may request an advisory opinion from the agencies. The
agencies, after reviewing the particulars of the proposed
venture, then determine whether the network would fall within a
safety zone, or otherwise not be challenged under the antitrust
laws.
The guidelines promise rule of reason treatment to ventures
where the competitors involved are ``sufficiently integrated
through the network.'' This is consistent with judicial
interpretations of the law. See, e.g., Broadcast Music, Inc. v.
Columbia Broadcasting Sys., 441 U.S. 1, 19-20 (1979). Where the
guidelines diverged significantly from current law, however,
was in defining integration solely as the sharing of
``substantial financial risk.'' Under the 1994 guidelines, a
network which integrates in any other way--regardless of the
extent of that integration, or whether a court interpreting the
antitrust laws would find it to be integrated--cannot qualify
as a legitimate joint venture. This means that the agencies
would not proceed to examine the specific facts of these joint
ventures to determine their likely impact on competition; the
arrangement would be viewed as per se illegal.
This restrictive notion of what constitutes a legitimate
joint venture discourages procompetitive ventures from entering
the health care marketplace, under the guise of antitrust
enforcement. It excludes potential provider networks which
would mean an expanded set of consumer choices and increased
competition (and thereby, lower costs) for health care
services.
In August 1996, after the Committee reported H.R. 2925, the
Department of Justice and the Federal Trade Commission
guidelines were amended to allow consideration of additional
factors in determining whether a prospective network qualifies
as sufficiently integrated to receive rule of reason
consideration. The impact of these amendments remains to be
seen, but arguably they bring the enforcement policies more in
tune with applicable case law. H.R. 2925 addressed the
inadequacies of the 1994 guidelines by requiring that the
conduct of an organization meeting the criteria of a Health
Care Provider Network be judged under the rule of reason. The
result would be to permit a case-by-case determination as to
whether the conduct of that HCPN would be procompetitive, and
thus permissible under the antitrust laws. This was not an
exemption from the antitrust laws. In no event would providers
be allowed to set prices or control markets if, in doing so,
they have an anticompetitive effect on the market. The normal
principles of antitrust law will continue to apply. There could
just be no automatic assumption that such networks would be per
se illegal.
Only an organization meeting specified criteria would
qualify for the more liberal, rule of reason consideration. The
network must have in place written programs for quality
assurance, utilization review, coordination of care and
resolution of patient grievances and complaints. It must
contract as a group, and mandate that all providers forming
part of the group be accountable for provision of the services
for which the organization has contracted. If these criteria
are not met, the entity could still be considered per se
illegal.
Rule of reason consideration would be extended not only to
the actual performance of a contract to provide health care
services, but also to the exchange of information necessary to
establish a HCPN. An important limitation on the exchange of
information is that it must be reasonably required in order to
create a HCPN. Further, information obtained in that context
may not be used for any other purpose.
Legislative History.--H.R. 2925 was introduced by Chairman
Hyde on February 1, 1996, and ultimately had 153 cosponsors.
Hearings were held on the bill on February 27 and 28, 1996. The
witnesses were: the Honorable Bill Archer; the Honorable Pete
Stark; the Honorable Robert Pitofsky, Chairman, Federal Trade
Commission; Dr. Nancy Dickey, Chair, American Medical
Association Board of Trustees; Gayle McKay, Associate Program
Director for the Abbot Northwestern Hospital School of
Anesthesia, on behalf of the American Association of Nurse
Anesthetists; Margaret Mitzger, Senior Vice President and
Corporate General Counsel for Tufts Associated Health Plan, on
behalf of the American Association of Health Plans; and,
Professor Clark Havighurst, William Neal Reynolds Professor at
the Duke University School of Law.
On March 12, 1996, the Committee ordered H.R. 2925
favorably reported to the House by a vote of 20 yeas to 4 nays,
House Report No. 104-646.
liability issues
Product Liability/Legal Reform--H.R. 10; H.R. 956
The ``Common Sense Legal Reforms Act of 1995'' (H.R. 10)
was introduced by Judiciary Committee Chairman Henry Hyde on
the opening day of the 104th Congress (January 4, 1995).
Section 103 of that bill focussed on product liability reform.
On February 13, 1995, the full Committee held a hearing on
``Product Liability and Civil Justice Reform.'' The Committee
received testimony on section 103 of H.R. 10 and on broader
civil justice and tort reform issues. The Committee heard
testimony from the following eight witnesses: Charles E.
Gilbert, Jr., President, Cincinnati Gilbert Machine Tool
Company; Larry S. Stewart, President, American Trial Lawyers
Association of America; Richard K. Willard, Partner, Steptoe
and Johnson; Robert B. Creamer, Executive Director, Illinois
Citizen Action, representing Citizen Action; Peter A.
Chevalier, Vice President, Medtronic Inc.; Thomas A. Eaton,
Professor of Law, University of Georgia; Patrick J. Head, Vice
President and General Counsel, FMC Corporation; and William T.
Waren, Federal Affairs Counsel, National Conference of State
Legislatures. Subsequently, on February 15, Chairman Hyde
introduced H.R. 956, the ``Common Sense Legal Standards Reform
Act of 1995,'' which was modeled on section 103 of H.R. 10.
H.R. 956 was designed to promote fairness in product
liability litigation and set appropriate parameters for
judicial consideration of punitive damage claims. Our excessive
reliance today on a patchwork of conflicting state statutes and
common law relating to allegations of product defects
excessively burdens interstate commerce, discourages invention,
exacerbates liability insurance costs, compromises American
competitiveness, and forces Americans to pay higher prices. The
absence of federal standards and limitations also proves
harmful to businesses and consumers in the range of cases
involving punitive damages, not just in product related
litigation. Both product liability reform and punitive damages
reform implicate important Federal interests that necessitate
action on the national level.
The development of national and international markets
necessitates a federal response to product liability issues--a
response that may have been inappropriate at earlier times when
Americans relied primarily on locally produced goods. There is
a need for a significant measure of national uniformity in the
law of product liability to free American businesses from the
excessive costs and uncertainties associated with the potential
application of widely diverging state laws.
In addressing reform of punitive damages, the Committee
determined that the adverse impacts of excessive awards on
interstate and foreign commerce extend to a wide range of cases
that are not limited to situations involving products. As
Richard Willard testified before our Committee, ``[a]ll manner
of service providers . . . are tied to the national economy.''
The fact that punitive damages are not provided for under the
laws of many countries--punitive damages, for example, are
basically unknown in Continental Europe--underscores how the
potential for virtually unlimited punitive damage awards in the
United States, with the enormous risks involved, places our
country at a significant competitive disadvantage.
The Committee acted to reform punitive damages not only to
ameliorate adverse affects on interstate and foreign commerce
but also to protect due process rights. Punitive damages are
designed to punish an individual entity for wrongdoing or deter
such conduct rather than to compensate an injured party.
Allowing a jury to exercise virtually unlimited discretion to
impose punishment or deterrence in the form of punitive damages
is no more justifiable than allowing a criminal court to
disregard the severity of an offense in its sentencing role.
The issue of what limits to impose on punitive damage awards is
a legislative policy decision that is within the competence of
Congress.
The constitutional and policy justifications for this
legislation are sound. H.R. 956 addresses problems that require
national solutions. Although many Members of our Committee
believe strongly in states' rights, it was recognized that some
problems are national in nature and cannot be solved by diverse
state legislation, however well intended.
Testimony at the February 13th hearing documented the need
for this legislation. Richard Willard, who served as Assistant
Attorney General in charge of the Civil Division of the
Department of Justice from 1983 to 1988, described litigation
reform as ``a necessary part of any effort to make real changes
in the way government works'' and characterized ``the
increasing number of unpredictable and outrageous claims for
punitive damages'' as the ``most urgent problem in civil
litigation.'' Patrick J. Head, with his extensive experience as
a corporate counsel and his wide knowledge of product
liability, referred to the ``widespread consensus that American
businesses need to improve their competitiveness by reducing
costs, by expanding the markets for their products, and by
pursuing innovation.'' He noted that ``[o]ur current product
liability system undermines all of these efforts.'' Peter
Chevalier, a researcher, innovator, and medical device industry
executive, observed that ``the current product liability system
in the U.S. is having a severely detrimental effect on the
ability of medical device manufacturers to innovate in this
country.'' He pointed out that the ``environment for innovation
and research has become so harsh'' that his company ``recently
moved the headquarters--the business unit responsible for
managing the development of breakthrough technologies, from our
Minneapolis Corporate Center to the Netherlands.'' Charles E.
Gilbert, Jr., a former Chairman of the Board of the Association
for Manufacturing Technology, commented that ``[u]nder the
current product liability system, everyone is hurt--the
manufacturer; the injured claimants, who may be left
uncompensated if all the manufacturers' resources are depleted
due to the lack of available, affordable insurance; and the
public, who is denied access to products.'' He went on to
state: ``Innovation and job creation are hampered by fear of
the unknown. New designs and the new equipment to produce new,
safer products represent too high a business risk for many
American firms.''
The present patchwork of fifty separate state product
liability laws and the potential for virtually unlimited
punitive damage awards in a wide range of cases are simply
costing America too much. Today, we discourage capital
investment, dampen job creation, and deny consumers new, safer,
and less expensive products. We also misuse the civil justice
system to impose disproportionate punishments without basic
safeguards.
H.R. 956 was considered by the Full Committee on February
23, 1996. It was ordered reported, as amended, by a roll call
vote of 21 to 11, House Report No. 104-64, Part I.
Title I of H.R. 956, as reported, included four distinct
reforms. First, product sellers received protections against
liability for manufacturer error in situations where claimants
can collect from manufacturers. Second, a claimant whose
alcohol or drug use is the primary cause of an accident would
be barred from recovering from those with lesser degrees of
responsibility. Third, a defendant's liability for non-economic
damages was limited to the proportion of fault or
responsibility of that defendant. Finally, most product
liability actions were barred from being brought more than 15
years after the product's delivery.
Title II of H.R. 956 addressed the award of punitive
damages. It required that, in order to recover punitive
damages, a plaintiff show that egregious conduct was linked to
the harm suffered by clear and convincing evidence. Punitive
damages were limited to three times the economic loss or
$250,000, whichever is greater. Consideration of such damages
could occur in a separate proceeding at the request of either
party.
H.R. 956 was considered by the House of Representatives on
March 8-10, 1995, and approved, with amendments, by a roll call
vote of 265 yeas to 161 nays.
The House agreed to the following amendments: The Pete
Geren of Texas amendment, as modified pursuant to the rule,
that applies liability rules applicable to product sellers to
persons engaged in the business of renting or leasing products,
but exempts them from liability for customer's illegal misuse
of such product.
The Hyde amendment eliminating the exception to the statute
of repose for product liability that allows a claimant to bring
a suit if he cannot receive full compensation for medical
expenses from other sources.
The Conyers amendment that requires any product liability
action for injury sustained in the United States and that
relates to the purchase or use of a product manufactured
outside the United States by a foreign manufacturer to be heard
by a Federal court and that such court shall have jurisdiction
over the manufacturer (agreed to by a recorded vote of 258 ayes
to 166 nays).
The Oxley amendment that adds ``FDA defense'' provisions
that bar punitive damages for the sale or manufacture of drugs
or devices which have been approved by the Food and Drug
Administration.
The Cox of California amendment that eliminates joint and
several liability (in which any of the defendants can be
required to pay the entire amount) for noneconomic losses in
all civil lawsuits that involve interstate commerce (agreed to
by a recorded vote of 263 ayes to 164 nays).
The Cox of California amendment that limits the maximum
award of noneconomic damages in health care liability actions
to $250,000 (agreed to by a recorded vote of 247 ayes to 171
nays).
The House also defeated a motion to recommit the bill to
the Committee on the Judiciary with instructions to report it
back forthwith containing an amendment that sought to restore
provisions to require foreign manufacturers to appoint an agent
to receive service of process in the United States; and change
the limit on punitive damages to three times the amount of
damages awarded to the claimant for economic loss on which the
claimant's action is based, or $1 million, whichever is less
(rejected by a recorded vote of 195 ayes to 231 nays).
On May 10, 1995 the Senate approved an amended version of
H.R. 956, and House conferees were appointed on November 9,
1995. Also on November 9, 1995, the House of Representatives
voted by roll call vote of 190 ayes to 231 nays, to instruct
the conferees not to agree to any provision that would limit
the total damages recoverable for injuries by aged individuals,
women, or children to an amount less than that recoverable by
other plaintiffs with substantially similar injuries.
On January 29, 1996, the House of Representatives agreed to
instruct the conferees to insist on the provisions relating to
the treatment of foreign manufacturers, by a roll call vote of
256 ayes to 142 nays, Record Vote No. 43.
The Conferees filed their report on March 14, 1996, House
Report No. 104-481. The conference agreement contained the
following provisions:
Scope. The Agreement set uniform standards for product
liability actions brought in State or Federal Court.
Limitation on Punitive Damage Awards. Punitive damage
awards were limited to two times economic and non-economic
damages, or $250,000, whichever is greater. Under certain
circumstances, the court may increase the award of punitive
damages, but in no event may the award exceed the level of
punitive damages awarded by the jury.
Special Rule for Small Entities. A special rule on punitive
damages applied to individuals whose net worth did not exceed
$500,000, or an owner of a business which had fewer than 25
employees. In cases involving those defendants, the punitive
damage award may not exceed the lesser of $250,000 or two times
economic and non-economic damages. The court would not have
authority to exceed this cap.
Statute of Repose. The statute of repose for cases
involving a durable good would be 15 years, except that a State
statute providing a shorter period would prevail. This
provision does not apply to cases involving toxic harm or
vehicles used primarily for hire, nor does it supersede the
General Aviation Revitalization Act of 1994 or express
warranties as to the safety or life expectancy of a product
which is longer than 15 years.
Joint and Several Liability. Liability for non-economic
damages would be several, rather than joint, based on the
proportion of responsibility of each defendant for the harm
involved.
Product Renters and Lessors. A person in the business of
renting or leasing a product would not be vicariously liable
for the tortious acts of the renter or lessor.
Defense Based on Intoxication or Drug Abuse. If the
claimant was more than 50 percent responsible for the accident
or event causing the harm due to being under the influence of
intoxicating alcohol or any drug, the defendant would have a
complete defense to the action.
Misuse and Alteration. The damages for which a defendant is
liable would be reduced by the percentage of responsibility for
the harm attributed to the misuse or alteration of the product
involved.
Alternative Dispute Resolution. The Agreement established a
mechanism for resolution of claims under voluntary, nonbinding
alternative dispute resolution procedures.
Workers' Compensation Subrogation. An insurer would have a
right of subrogation against a manufacturer or product seller
to recover any claimant's benefits relating to the harm that is
the subject of the product liability action.
Biomaterials Access Assurance. Suppliers of raw materials
and component parts for medical devices would not be liable for
harm to a claimant caused by an implant.
Statute of Limitations. Claims must be filed within two
years of discovery of the injury and the cause of the injury.
The statute is tolled for persons with legal disabilities; they
would have two years after the disability ceases to sue.
Effective Date. The Agreement would apply to cases
commenced on or after the date of enactment, regardless of when
the conduct at issue occurred.
On March 21, 1996, the Senate approved the Conference
Report by roll call vote of 59 yeas to 40 nays. The House
approved the Conference Report on March 29, 1996 by roll call
vote of 259 yeas to 158 nays.
The President vetoed the bill on May 2, 1996, House
Document 104-207, and the House failed to override the veto on
May 9, 1996, by roll call vote of 258 ayes to 163 nays.
Medical Malpractice
On February 27 and 28, 1996, the Committee held hearings on
medical malpractice liability reform. The witnesses were: The
Honorable Mitch McConnell, Senator from Kentucky; Fredric
Enten, Esq., Senior Vice President and General Counsel of the
American Hospital Association; Philip Corboy, Esq., immediate
past Chair of the American Bar Association Special Committee on
Medical Professional Liability; George Sikeoi, Chairman, Legal
Section, Physician Insurers Association of America; Robert
Clarke, President and CEO of Memorial Health System of
Springfield, Illinois, representing the Health Care Liability
Alliance; Dr. Joseph Hanss, on behalf of the American College
of Obstetricians and Gynecologists; Mark Hiepler, Esq.; Linda
Ross; and, Dr. Nancy Dickey, Chair, American Medical
Association Board of Trustees.
Testimony was received as to the pros and cons of adopting
reforms to the medical malpractice liability system, and as to
the nature of such reforms.
The proper functioning of the medical malpractice system
is one of the most important safeguards against substandard
medical care. The ability of victims to bring lawsuits in cases
of medical malpractice achieves three important goals: It
permits victims to receive just and adequate compensation for
harm suffered, it deters poor quality health care, and it
penalizes negligent providers.
At least two factors have prompted calls for medical
liability reform. First, some research suggests that the
medical tort system is not achieving its goals. For example, it
has been shown that only a fraction of malpractice injuries
result in claims, compensation is often unrelated to the
existence of medical malpractice, the legal system is slow at
resolving claims, and legal fees and administrative costs
consume almost half of the compensation awarded.
From 1960 to 1984, medical malpractice awards in the
United States increased by more than 1,000 percent. A 1988
study showed that the average U.S. physician has a 37 percent
chance of being sued for professional liability in his/her
lifetime, and that surgeons and obstetricians have a 52 percent
and 78 percent change respectively. Furthermore, once sued for
malpractice, physicians and their patients/claimants can expect
lengthy court battles. On average, it takes more than two years
to resolve a medical liability case from the time it is filed
and almost 5\1/2\ years for a complex case. For obstetrical
claims, the average litigation time frame is 5 years, but 7
years for cases involving brain-damaged infants.
Studies indicate that 60 to 75 percent of medical
malpractice cases have no merit and nearly 60 percent of
malpractice insurers' defense costs are spent defending cases
that ultimately are closed without any compensation being paid
to the plaintiff. Of those cases that merit litigation and
result in verdicts favorable to plaintiffs, the Rand
Corporation estimates that only 43 cents of every dollar spent
on the litigation actually reaches the injured patient. The
majority of each dollar spent goes towards attorney fees,
expert witnesses and insurance company overhead.
The second factor militating toward reform is the
perception that the current tort system places an unreasonable
burden on hospitals and physicians. There is evidence
suggesting that liability-related costs are too high and unduly
influence the way hospitals and doctors practice medicine. The
burden imposed on the health care system by medical malpractice
litigation is not limited to the cost of malpractice insurance.
The practice of defensive medicine, both in an affirmative and
negative sense, takes a real toll on the system.
When our legal system induces physicians to order
additional or more complex diagnostic tests and procedures than
they would otherwise, or leads them to schedule additional
patient visits and to spend more time with the patient, the
system bears the burden of these unnecessary expenditures.
Negative defensive medicine is just as damaging to the health
care system: by inducing doctors to restrict the scope of their
practices to low risk patients or procedures, or to exit
certain practice areas altogether, it reduces the availability
of care and choice in the health care marketplace.
There are many ways in which the system might be reformed
to provide incentives for the better attainment of its goal.
Some of the measures that have been adopted or considered by
the various states include caps on non-economic and/or punitive
damages, limitations on contingency fees, use of periodic
payments, institution of shortened statutes of limitation,
admission into evidence of collateral source payments,
elimination of joint and several liability, and alternatives to
litigation. The precise contours of each of these individual
reforms is susceptible to endless permutations, and the
combinations in which they might be packaged adds increased
choice in crafting an effective reform package.
Medical malpractice actions are governed largely by a
patchwork of state laws (the exception being claims which must
be brought under ERISA or the Federal Tort Claims Act). This
leads to widely divergent outcomes depending on the locus of
the lawsuit. One of the reasons the Committee held hearings was
to discuss the advisability of enacting legislation at the
Federal level which would address the problems of the medical
liability system uniformly, and what reforms might be
appropriate.
Although no House bill developed from the hearings, the
Committee was actively involved in working on the issue and in
drafting medical malpractice liability provisions for inclusion
in legislation relating to Medicare reform (H.R. 2419) (see
section on Conference Appointments) and Health Insurance
Portability (H.R. 3103) (see section on Committee
Appointments).
Limitations on Volunteer Liability
On February 27 and 28, 1996, the full Committee held
hearings to consider, among other things, the unique liability
issues raised in the context of volunteerism. Many believe that
the fear of personal liability discourages people from
volunteering their time and services. Whether this fear is
justified or exaggerated, it nevertheless is creating
impediments to the provision of services, including health care
services, through non-governmental sources. Various approaches
have been proposed by which to ameliorate this problem, and the
hearings were designed to explore these many alternatives.
The Committee heard testimony on two specific legislative
proposals. The first, the ``Volunteer Protection Act of 1995,''
H.R. 911, was introduced by Congressman John Porter, and was
ultimately co-sponsored by over 200 members. It would provide
incentives for states to enact limitations on liability for
volunteers working for non-profit organizations and
governmental entities by increasing by one percent the fiscal
year allotment received by a state under the Social Services
Block Grant Program if the state enacts immunity legislation
which complies with certain criteria. The immunity envisioned
under H.R. 911 would only apply to volunteers acting in good
faith and within the scope of his or her official functions and
duties. Injuries caused by willful and wanton misconduct would
not be covered. States would have the flexibility to enact
certain further specific exceptions to the coverage of their
acts.
The second, the ``Charitable Medical Care Act of 1996,''
H.R. 2938, was introduced by Congressman Bob Goodlatte. H.R.
2938 would make it easier for free medical clinics to recruit
medical professionals to volunteer their services for the poor.
It would exempt from liability those persons who provide
services through free clinics, to the extent they commit simple
negligence. No protection would be granted from suits alleging
gross negligence or willful misconduct.
Witnesses on the subject of volunteer liability limitation
were Senator Mitch McConnell of Tennessee; Congressman
Goodlatte of Virginia; Congressman Porter of Illinois; John H.
Graham, IV, CEO, American Diabetes Foundation, on behalf of the
National Coalition for Volunteer Protection; Sister Christine
Bowman, O.S.F., for the Catholic Health Association; and Chris
Franklin, Vice President, National Office of Volunteers,
American Red Cross.
The Committee took no further action on these measures in
the 104th Congress.
Matters Held at Full Committee
Balanced Budget Constitutional Amendment
Congress proposes constitutional amendments by two-thirds
votes--of members voting--in both Houses of Congress. The
alternative constitutional procedure of Congress calling a
convention for proposing amendments--on application of the
legislatures of two-thirds of the states--has never been
utilized, although at one point 32 of the requisite 34 states
called for a constitutional convention in response to the
balanced budget issue. A constitutional amendment--whether
proposed by two-thirds votes in Congress or by a constitutional
convention--must be ratified by the legislatures or conventions
in three-fourths of the states in accordance with the mode of
ratification proposed by Congress.
Balanced budget constitutional amendments enjoyed strong
support in Congress for many years, but prior to the 104th
Congress received House Floor consideration only after
successful discharge petition efforts. The lopsided majorities
in favor of such amendments in House Floor votes--236 yeas to
187 nays in 1982, 279 yeas to 150 nays in 1990, 280 yeas to 153
nays in 1992, and 271 yeas to 153 nays in 1994--fell short of
the constitutionally required two-thirds vote. Although
balanced budget constitutional amendment related hearings had
been held in the Committee on the Judiciary's Subcommittee on
Monopolies and Commercial Law in 1979-1980, 1981-1982, 1987,
and in the successor Subcommittee on Economic and Commercial
Law in 1990, the full Committee on the Judiciary never
considered a balanced budget proposal in a markup session or
reported a balanced budget amendment to the whole House prior
to the 104th Congress.
On the opening day of the 104th Congress, Representative
Joe Barton, Chairman Henry J. Hyde, Representative Randy Tate,
and Representative Pete Geren introduced H.J. Res. 1, proposing
a balanced budget amendment to the Constitution of the United
States. The following week, the Subcommittee on the
Constitution of the Committee on the Judiciary held two days of
related oversight hearings (January 9 and 10, 1995) on H.J.
Res. 1 and heard testimony from seventeen witnesses. Additional
written submissions were received and printed as part of the
hearing record (Serial No. 5). On January 11, 1995, the
Committee on the Judiciary met to mark up H.J. Res. 1 (which
had been held at the full Committee) and adopted by voice vote
two amendments offered by Chairman Hyde. By a rollcall vote of
20 to 13, the Committee approved reporting H.J. Res. 1, as
amended, favorably to the House.
The reported version of H.J. Res. 1 was designed to
discourage the Federal government from engaging in deficit
spending, increasing taxes, and raising the ceiling on debt
held by the public. The Amendment generally required three-
fifths votes of each Houses total membership for laws providing
for (1) an excess of outlays over receipts, (2) an increase in
tax revenue, and (3) a higher debt limit. In addition, the
Amendment required the President to submit balanced budgets to
Congress. The Amendments requirements could be waived by
Congress based on a declaration of war. An alternative waiver
mechanism, also included in the Amendment, required a joint
resolution (supported by a majority of the total membership of
each House) that becomes law--declaring ``an imminent and
serious military threat to national security.'' The
constitutional amendment would take effect ``for the fiscal
year 2002 or for the second fiscal year beginning after its
ratification, whichever is later.'' The preamble specified that
ratification would be by state legislatures, the process
generally prescribed.
The Committee viewed the rapidly mounting Federal debt and
the impact of rising interest payments on future generations as
providing the major impetus for the balanced budget
constitutional amendment. In a era of deficit spending, the
amendment was needed to give expression to balanced budget
principles--and the practice of living within our means--that
had been accepted and followed during most of our national
history. A constitutional amendment, by incorporating a renewed
recognition of economic constraints, would set the parameters
for congressional budget deliberations.
The resolution as reported by the Committee provided the
necessary flexibility to deviate from balanced budget
principles either by utilizing a limited waiver mechanism or by
obtaining a broader consensus--through special voting
requirements--than required for ordinary legislation. Such a
broader consensus would help to level the playing field because
the interests of groups advocating spending often had proved to
be more focused than the general public interest in eliminating
the deficit.
The effectiveness of a constitutional amendment that puts a
premium on bringing expenditures into line with receipts, the
Committee concluded, would be enhanced by encouraging spending
reductions rather than tax increases. For that reason, H.J.
Res. 1 included a tax limitation provision. With a balanced
budget constitutional amendment, tax increases would be viewed
as a last resort because of their tendency to depress economic
activity.
H.J. Res. 1 directed Congress to ``enforce and implement''
the Amendment by ``appropriate legislation.'' The operational
details of implementation would be spelled out in congressional
enactments--as the language of the Amendment contemplated--with
limited judicial involvement as a last resort. In that regard,
the Committee anticipated good faith compliance by Congress and
the President with the terms and requirements of the Amendment.
Requirements for standing, of course, would restrict access to
the courts. In those unusual situations where courts might
reach the merits of cases involving the balanced budget
constitutional amendment, judicial deference to congressional
procedures and policy decisions generally could be anticipated.
If courts ever reached the point of finding a constitutional
violation by Congress in the context of the balanced budget
amendment, prudential considerations would inhibit intrusive
remedial action. In any event, Congress could be expected to
delineate the details relating to the role of the courts before
the beginning of fiscal year 2002--the earliest possible
implementation date of the constitutional amendment.
On January 26, 1995, the House, by a recorded vote of 300
ayes to 132 nays, passed H.J. Res. 1. The House passed version
of the Joint Resolution reflected an amendment in the nature of
a substitute offered by Representative Schaefer of Colorado and
adopted in the Committee of the Whole. The Substitute--and H.J.
Res. 1 as passed by the House--differed most significantly from
H.J. Res. 1 as reported by requiring a majority vote--rather
than a three-fifths vote--of the total membership of each House
to enact a tax increase.
On March 2, 1995, the Senate voted on its amended version
of H.J. Res. 1, but the 65 yeas to 35 nays fell 2 votes short
of the two-thirds required for a constitutional amendment (with
Senator Dole, an Amendment supporter, voting in the negative--
thus permitting him to seek reconsideration). The final Senate
language was similar to its House counterpart except for the
inclusion by the Senate of an explicit limitation on federal
judicial authority. On reconsideration, the Senate again failed
to pass the joint resolution--this time (June 6, 1996) by a
vote of 64 yeas to 35 nays.
The Small Business Regulatory Enforcement Fairness Act of 1996
On March 28, 1996, the House of Representatives adopted a
floor amendment to H.R. 3136, the ``Contract with America
Advancement Act of 1996,'' which created a new Title III to
that bill. The amendment, authored by Chairman Hyde, is known
as the ``Small Business Regulatory Enforcement Fairness Act of
1996,'' and it is designed to provide important regulatory
relief for America's small businesses. H.R. 3136, as amended,
was approved in the House by a vote of 328 ayes to 91 nays, and
signed into law by the President on March 29, 1996. P.L. 104-
121. (There was no separate vote on the adoption of the
amendment, as the Rule made its inclusion self-executing.)
The Hyde amendment (which, when enacted, became Title II of
the Act) is vitally important to the small business community,
which is particularly burdened by the effect of multiple, and
many times conflicting, regulatory requirements. It should be
viewed not as a total solution to all regulatory problems, but
as a good first step of making rules more fair, more rational,
and more carefully tailored to achieve the goal they are
designed to accomplish.
First, the amendment made important changes in the
Regulatory Flexibility Act (5 U.S.C. Sec. Sec. 601-612),
allowing judicial review of certain aspects of that statute.
The Regulatory Flexibility Act was first enacted in 1980. Under
its terms, federal agencies are directed to consider the
special needs and concerns of ``small entities''--i.e., small
businesses, local governments, farmers, etc.--whenever they
engage in a rulemaking subject to the Administrative Procedure
Act. The agencies must then prepare and publish a regulatory
flexibility analysis of the impact of the proposed rule on
small entities, unless the head of the agency certifies that
the proposed rule will not ``have a significant economic impact
on a substantial number of small entities.''
From the beginning, the problem with this law has been the
lack of availability of a judicial reviews mechanism to enforce
the purposes of the law. If agencies did not actually conduct a
regulatory flexibility analysis or fail to follow the other
procedures set down in the Act, there was no sanction. Thus,
the small business community had no remedy for a violation of
the Act.
The Hyde amendment cured this problem. Subtitle D of the
amendment provides that in instances where an agency should
have undertaken a regulatory flexibility analysis and did not,
or where the agency needs to take corrective action with
respect to a flexibility analysis that was prepared, small
entities are now authorized to seek judicial review within one
year after final agency action. A court will then review the
agency's action under the judicial review provisions of the
Administrative Procedure Act (5 U.S.C. Sec. Sec. 701-706). The
remedies that a court may order include remanding the rule back
to the agency and deferring enforcement of the rule against
small entities, pending agency compliance with the Regulatory
Flexibility Act.
Another important aspect of the Hyde amendment is the new
congressional review procedure it creates. Subtitle E of the
amendment permits Congress to review all proposed rules to
determine whether or not they should take effect. Specifically,
the amendment allows Congress to postpone for 60 days the
implementation of any ``major'' rule, generally defined as
having an annual affect on the economy of $100 million or more.
The language allows the President to bypass the 60-day delay
through the issuance of an Executive Order, if the rule
addresses an imminent threat to the public health or safety, or
other emergency, or matters involving criminal law enforcement
or national security. Non-major rules would not be stayed, but
would be subject to the review process.
Subtitle E then provides a procedure whereby Congress may
review rules to determine whether they should be ``vetoed''
prior to taking effect. Each agency is required to submit to
Congress a copy of each new rule, along with a report
describing its contents. In the event that Congress does not
believe the rule should take effect, each chamber must pass a
joint resolution of disapproval, which must then be signed by
the President. The subtitle creates an expedited procedure for
consideration of the joint resolution in the Senate, which
continues in effect for 60 session days after receipt of the
rule from the agency.
The Hyde amendment also includes a provision which will
require federal agencies to simplify forms and publish a
``plain English'' guide to help small businesses comply with
Federal regulations. See Subtitle A. These compliance guides
will not be subject to judicial review, but may be considered
as evidence of the reasonableness of any proposed fines or
penalties. Federal agencies would also be directed to reduce or
waive fines for small businesses in appropriate circumstances,
if violations are corrected within a certain period.
The legislation also creates an Ombudsman within the Small
Business Administration to gather information from small
businesses about compliance and enforcement practices, and to
work with the various agencies so as to respond to the concerns
of small businesses regarding those practices. See Subtitle B.
In addition, some important changes are made to the Equal
Access to Justice Act (5 U.S.C. Sec. 504; 28 U.S.C. Sec. 2412).
The Equal Access to Justice Act (EAJA) provides that certain
parties who prevail over the federal government in regulatory
or court proceedings are entitled to an award in attorneys fees
and other expenses, unless the government can demonstrate that
its position was substantially justified or that special
circumstances would make the award unjust. Eligible parties are
individuals (whose net worth does not exceed $2 million), or
businesses, organizations, associations or units of local
government (with a net worth of no more than $7 million and no
more than 500 employees). The Act covers both adversary
administrative proceedings and civil court actions, other than
tort cases and tax cases.
Subtitle C of the Hyde amendment changed the Equal Access
to Justice Act so as to make it easier for small businesses to
recover their attorneys fees, if they have been subjected to
excessive and unsustainable proposed penalties. It amends the
EAJA to create a new avenue for small entities to recover their
attorneys fees in situations where the government has
instituted an administrative or civil action against a small
entity to enforce a statutory or regulatory requirement. In
these situations, the test for recovering attorneys fees would
become whether the final demand of the United States, prior to
the initiation of the adjudication or civil action, was
substantially in excess of the decision or judgment ultimately
obtained and is unreasonable when compared to such decision or
judgment. The important point here is that this legislation
will level the playing field and make it far more likely that
the United States will not seek excessive fines or penalties
from small businesses and will be more likely to make fair
settlement offers prior to proceeding with a formal regulatory
enforcement action or before going to court to collect the
civil fine or penalty.
Antiterrorism
Legislative History.--On June 12 and 13, 1996 the Committee
held a hearing on legislation (H.R. 1710) introduced by
Chairman Hyde--the ``Comprehensive Antiterrorism Act of 1995.''
The following witness appeared during the two days of full
Committee hearings: the Honorable Doug Bereuter, Member of
Congress; the Honorable David Skaggs, Member of Congress; the
Honorable Jamie S. Gorelick, Deputy Attorney General, U.S.
Department of Justice; the Honorable William P. Barr, former
Attorney General, U.S. Department of Justice; Abraham Sofaer,
Senior Fellow, Hoover Institute of Stanford University; James
P. Fleissner, Professor, Mercer University School of Law; Bruce
Fein, Esq., former Associate Deputy Attorney General; Gregory
Nojeim, Esq., Legislative Counsel, American Civil Liberties
Union; Russell Seitz, Associate, Olin Institute for Strategic
Studies at Harvard University; John Hay, U.S. Bureau of Mines;
J. Christopher Ronay, President, Institute of Makers of
Explosives; Bob Delfay, Executive Director, Sporting Arms and
Ammunition Manufacturers Institute; Khalil E. Jahshan,
Executive Director, National Association of Arab Americans;
Aziza Al-Hibri, Esq., Professor of Law, University of Richmond,
representing the American Muslim Council; Ruth Lansner, Chair,
National Legal Affairs Committee, Anti-Defamation League of
B'nai B'rith; and John H. Shenefield, Chair, Standing Committee
on Law and National Security, American Bar Association.
The Committee marked up H.R. 1710 for four days on June 14,
15, 16 and 20, 1995. During the markup, 30 amendments were
adopted and 18 amendments were rejected. On June 20, 1995 the
Committee ordered reported H.R. 1710, as amended (H. Rept. 104-
383).
On March 14, 1996 the House passed H.R. 2703, the
``Comprehensive Antiterrorism Act of 1995,'' amended, by a vote
of 229 ayes to 191 nays, and passed S. 735, substituting the
language of H.R. 2703 as passed by the House. The House
conferees were Chairman Hyde, Mr. McCollum, Mr. Schiff, Mr.
Buyer, Mr. Barr, Mr. Conyers, Mr. Schumer, and Mr. Berman. A
conference was held on March 27, 1996, and the conference
report was filed on April 15, 1996, H. Rept. 104-518. On April
17, 1996 the Senate agreed to the conference report by a vote
of 91 yeas to 8 nays, and on April 18, 1996 the House agreed to
the conference report by a vote of 293 yeas to 133 nays. On
April 24, 1996 the House and the Senate agreed to S. Con. Res.
55, correcting the enrollment of S. 735, and the President
signed S. 735, Public Law 104-132.
Summary.--As enacted, the ``Antiterrorism and Effective
Death Penalty Act of 1996'' will significantly strengthen the
ability of the United States to deter and punish terrorist
acts. In addition, among other things, S. 735 reforms the
habeas corpus provisions that apply in federal court.
The bill contained the following provisions:
S. 735 provides for the designation of foreign terrorist
organizations. This provision gives the Secretary of State, in
consultation with the Attorney General and the Secretary of
Treasury, the authority to identify and designate foreign
organizations that engage in terrorism that threatens the
national security of the United States. The Secretary is
required to notify Congress no later than 7 days before the
publication of the designation in the Federal Register. Upon
notification to Congress, the Treasury Secretary is authorized
to order financial institutions, which are holding any assets
of the foreign terrorist organization to be designated, to
block all financial transactions with those assets until
further directive from the Treasury Secretary, Act of Congress,
or order of court. The designation is subject to judicial
review if the designated foreign terrorist organization
challenges the designation. The designation will last for two
years and must be renewed at that time using the same process.
S. 735 prohibits fundraising in the United States by
designated terrorist organizations. There is an exception for
medicine and religious articles. These provisions include
authority for the Treasury Secretary to block all financial
transactions involving any assets of the designated terrorist
organizations held in the United States.
S. 735 authorizes the State Department's Embassy officials
overseas to deny entrance visas to members and representatives
of those same designated foreign terrorist organizations.
S. 735 allows the United States to stop or prohibit
assistance to foreign countries that do not cooperate with the
United States' antiterrorism efforts. The President has the
authority to waive this provision to preserve the national
interest.
S. 735 will allow United States nationals to sue state
sponsors of terrorism in United States courts when a terrorist
act results in death or bodily injury. The countries that have
their sovereign immunity stripped from them are those countries
designated as pariah states under the International Emergency
Economic Powers Act: Iran, Iraq, Libya, Sudan, Syria, North
Korea, and Cuba.
S. 735 also requires foreign air carriers that travel to
and from United States airports to follow the identical safety
measures that American air carriers must follow under FAA
regulations.
S. 735 allows for the removal of alien terrorists, fairly,
and with due process, but also with adequate protections to
safeguard sources and methods of classified information. These
procedures become effective only if a Federal District Court
Judge finds that there is probable cause to believe that the
alien is a terrorist and that use of normal deportation
proceedings would pose a risk to the national security of the
United States. The alien will be given a declassified summary
of the classified information which must be ``sufficient to
enable the alien to prepare a defense.'' If the district court
judge finds that the summary does not meet that standard, the
proceeding must terminate. The judge can only order the alien
deported based on the evidence introduced at the hearing.
S. 735 creates expedited asylum procedures. Aliens who
appear at our borders without proper immigration documents and
state a fear of persecution or a wish to apply for asylum, will
be referred for interview by an asylum officer. If the officer
finds that the alien has asserted a ``credible fear of
persecution'', the alien shall be detained for further
consideration of the application for asylum. If the alien fails
to meet that standard, and the officer's decision is upheld by
a supervisory asylum officer, the alien will be ordered removed
from the United States.
S. 735 also eases the deportation of aliens who have been
convicted of committing crimes in the United States. Alien
criminals will be deported after their prison term without an
additional deportation hearing.
S. 735 provides new nuclear, biological and chemical
weapons restrictions. The nuclear sections provide federal law
enforcement officials the tools necessary to combat the threat
of nuclear contamination and proliferation that may result from
illegal possession of, and trafficking in nuclear materials,
including nuclear by-products and non-weapons-grade materials.
The biological weapons restrictions address the threat of the
misuse or diversion to illegal use of potentially deadly human
pathogenic substances. It adds attempt, threat, and conspiracy
to the current prohibition on acquiring, possessing, or using
biological weapons. The chemical weapons provisions
criminalizes the use of chemical weapons within the United
States, or against Americans outside the United States. It also
provides for a study of the need for a training center to
enhance law enforcement response capabilities to chemical and
biological emergencies.
S. 735 also fulfills the obligations of the United States
to implement the Convention on the Marking of Plastic
Explosives. These provisions require that chemical markers be
placed in all plastic explosives manufactured in, imported
into, or exported from the United States.
S. 735 authorizes $1 billion for law enforcement, the
courts, and necessary research and development of counter-
terrorism technologies.
S. 735 requires federal judges to provide closed circuit
television coverage of a trial to the original location when it
has been moved from one district to another (more than 350
miles away from the original location and out of the state in
which the case was originally brought) . Only those designated
by the court are allowed to view the closed circuit signal. The
court must find that they have a compelling interest to view
the trial, but are precluded from doing so because of the cost
and inconvenience resulting from the change of venue.
S. 735 sets out the policy that the Attorney General will
have primary responsibility for investigations that are
terrorist in motivation. This is triggered only if the
motivational factors are met on a limited list of federal
offenses. Any other federal law enforcement agency's
traditional investigative authority over any of the crimes
listed is not limited. This simply alleviates any confusion as
to which agency has overall responsibility for crimes of
terrorism.
S. 735 includes mandatory victim restitution. Convicted
defendants would be required to make their victims financially
whole.
S. 735 provides that killings, kidnappings, assaults, and
property damage that involve conduct transcending national
boundaries (meaning an act in furtherance of the offense took
place outside the United States, as well as inside the United
States) will be investigated and prosecuted by the United
States. Also, it is a federal offense to engage in a conspiracy
or to partake in any part of a conspiracy within the United
States to injure another person or property overseas.
S.735 amends current law to provide for federal
jurisdiction for any threats, assaults, or murders, of any
current or former federal employee, officer, or agent, if that
offense is on account of the victim's employment relationship
with the federal government.
S. 735 also reforms federal habeas corpus. Time limits are
imposed on the filing of federal habeas corpus petitions and
motions. Motions filed with respect to federal court
convictions must be filed within two years from the time when
the conviction becomes final. Petitions relating to state court
convictions must be filed within one year from the conclusion
of direct review of the case. Prisoners must exhaust all state
court remedies before they can file a petition in federal
court. Second and successive habeas in capital cases is limited
in claims raising doubt about a prisoner's factual guilt. In
these cases, prisoners have six months to file their federal
habeas claim once their state habeas is completed. Their
execution is automatically stayed once they file their petition
in federal court. Federal courts also have been given general
time limits for consideration of federal habeas corpus
petitions and motions.
The Church Arson Prevention Act of 1996
During 1996, there was an alarming increase in the number
of houses of worship which have been reported as burned. Since
October 1, 1991, the Bureau of Alcohol, Tobacco and Firearms
(BATF)--the primary Federal agency with jurisdiction to
investigate arson--has investigated 147 fire incidents at
churches across the United States. Of these fires, 115 have
proved to be arsons. Fifty-three of those 147 churches were
made up of predominantly African-American congregations, many
of them located in the Southeastern United States.
The pace at which fires involving African-American
churches reported to Federal authorities is increasing
dramatically. In 1992, three African-American church burnings
in the Southeast were reported and investigated by the BATF.
Two were reported in 1993, four in 1994, and six in 1995. As of
May 1996, there had been at least 26 such fires reported. In
six incidents, the perpetrators were prosecuted and convicted--
four under Federal statutes, and two in state prosecutions. Of
the 31 then pending investigations--where arson or suspicious
circumstances had been discovered--six were in Tennessee, five
in Louisiana, five in South Carolina, five in Alabama, three in
Mississippi, five in North Carolina, one in Virginia, and one
in Georgia. Arrests had been made in connection with six of
these incidents, and most of the defendants were being
prosecuted in state court under arson charges. Two of those
were in South Carolina, where two arsonists who set two
separate fires are acknowledged members of the Ku Klux Klan.
There are a variety of Federal criminal statutes which may
be used to prosecute these acts. An arsonist could be charged
with a federal crime under the general arson statute, section
844(i) of Title 18, United States Code, which does not require
a showing of racial motivation. The authorized penalties under
section 844(i) are prison for not less than 5 years and not
more than 20 years, fines or both. If personal injury results,
the prison term is increased to not less than 7 years and not
more than 40 years. If death results, the arsonist is subject
to the death penalty, prison for life, or for any term of
years. The statute of limitations for prosecution under this
section is ten years.
The Criminal Section of the Civil Rights Division of the
United States Department of Justice could prosecute an arsonist
under federal criminal civil rights statutes which prohibit
conspiracies to interfere with federally protected rights.
Three principal statutes could serve to prosecute the person
responsible for a church burning that is found to be motivated
by racism.
In the event that the arson was committed by more than one
person, the perpetrators can be charged under section 241 of
Title 18, United States Code, which makes it unlawful for two
or more persons to conspire to injure, oppress, threaten, or
intimidate any inhabitant in the free exercise or enjoyment of
any rights or privileges secured by the Constitution or Laws of
the United States. A violation of this section may lead to a
fine of up to $250,000 and/or a term of imprisonment up to 10
years. If death results, defendants may be sentenced to prison
for any term of years or for life, or to death.
If the perpetrator is acting alone, section 241 is not
available as a means of prosecution. Instead, the Civil Rights
Division would have to charge the defendant under section 247
or section 248(a)(2) of Title 18. Under Section 248(a)(2) it is
illegal to use force or threat of force or physical obstruction
to injure, intimidate or interfere (or attempt to do so) with
an individual's lawful exercise of his First Amendment right of
religious freedom at a place of religious worship. Section
248(a)(3) makes it a crime to intentionally damage or destroy
the property of a place of religious worship. However, in the
case of a first offense criminal penalties under this section
are limited to a fine of up to $100,000 and/or imprisonment for
not more than one year. A misdemeanor conviction is considered
in most instances of church arson to be such insignificant
punishment that Federal prosecutors are unwilling to charge the
perpetrator under this section.
Section 247 made it unlawful to intentionally deface,
damage or destroy any religious real property or to
intentionally obstruct, by force or threat of force, any person
in the enjoyment of the free exercise of their religion.
However, one of the elements of the violation is that, in
committing the crime, the defendant either have (1) traveled in
interstate or foreign commerce or (2) used a facility or
instrumentality of interstate or foreign commerce in interstate
commerce. In the case of many church burnings, there is no
evidence that the defendant traveled across state lines, making
it necessary to invoke the second clause of the jurisdictional
requirement.
Section 247 was targeted at the very crimes at issue today:
vandalizing and destroying religious property. Unfortunately,
as written, the legislation had proven to be totally
ineffective. Since its enactment, only one case has been
brought under section 247, and it had nothing to do with
destroying religious property. The Department of Justice
testified that the highly restrictive and duplicate language of
its interstate commerce requirement had made section 247
``nearly impossible to use.'' This meant that section 247 was
of little assistance to federal prosecutors seeking to convict
individual church arsonists. The Department of Justice also
testified that the $10,000 dollar loss threshold contained in
section 247 made its use impractical in many instances. Where
the damage from a fire is minimal, or when hate is expressed,
not through fire but through desecration or defacement of
houses of worship, section 247 could not be used.
Section 247 was also limited in usefulness in the context
of damage to churches with predominantly African-American
congregations, because the statute only made it a crime to
damage religious property because of religious considerations.
Thus, if an arsonist had burned a church because he or she
hates Catholics, Muslims, Jews, or religion generally, the
statute would be satisfied. If the motivation for the arson was
racial animus, however--that is, that the congregation was
African-American--the conduct would not constitute a crime
under section 247.
On May 21, 1996, the Judiciary Committee held a hearing on
the issue of church fires in the Southeastern United States.
Testimony was received from 12 witnesses, including Congressman
Donald Payne, on behalf of the Congressional Black Caucus,
Assistant Attorney General Deval L. Patrick, Civil Rights
Division, Department of Justice, Director John W. Magaw, Bureau
of Alcohol, Tobacco and Firearms, Chief Tron W. Brekke, Civil
Rights Program, Federal Bureau of Investigation, Assistant
Secretary James E. Johnson, Enforcement Division, Department of
the Treasury, Chief Robert M. Stewart, South Carolina Law
Enforcement Division, Dr. Joseph E. Lowery, President, Southern
Leadership Conference, Revered Earl Jackson, New Cornerstone
Exodus Church, as National Liaison for Urban Development of the
Christian Coalition, Reverend Terrance G. Mackey, Sr., Mt. Zion
African Methodist Episcopal Church, Dr. Richard Land,
President, Southern Baptist Christian Life Commission, Nelson
Rivers, Southeast Region Director, National Association for the
Advancement of Colored People, and Revered Algie Jarrett, Mt.
Calvary Baptist Church. Additional material was submitted for
the record by the National Council of Churches of Christ in the
U.S.A. and the Southern Poverty Law Center.
Just two days after the hearing, Chairman Hyde and Ranking
Member Conyers introduced the ``Church Arson Prevention Act of
1996'' (H.R. 3525). As introduced, H.R. 3525 would have (1)
simplified the interstate commerce requirement in current law
and (2) reduced the minimum amount of property damage required
from $10,000 to $5,000. Its purpose was to give new teeth to
existing law and make it easier to punish those whose racial,
ethnic or religious animus lead them to destroy religious
property. At the Committee markup on June 11, 1996, Chairman
Hyde and Ranking Member Conyers offered a substitute amendment
which eliminated the dollar threshold altogether, and clarified
that it would be a violation of the statute if the damage to
religious property was motivated by racial or ethnic
considerations. The amendment was adopted by voice vote. The
Committee then, by voice vote, ordered H.R. 3525, as amended,
reported favorably to the full House. H. Rep. 104-621.
A manager's amendment to H.R. 3525 was considered and
adopted by the House on June 18, 1996, by a vote of 422 ayes to
0 nays. The amendment differed from the bill as reported by the
Judiciary Committee in that it added a provision making
personal injury victims of section 247-type crimes eligible
under the Victims of Crime Act.
The Senate approved an amended version of H.R. 3525 on June
26, 1996, the provisions of which were arrived at through bi-
partisan negotiations between the House and Senate sponsors.
The Senate-passed version was then adopted by the House on June
27, 1996, and was signed into law by President Clinton on July
3, 1996. P.L. 104-155. As enacted, the bill amends section 247
to make it a crime to destroy religious real property because
of the religion, race, color, or ethnicity of persons
associated with the property, and increases penalties under the
section to conform to penalties available under the general
arson statute. It also creates a loan guarantee recovery fund,
allows compensation of victims under the Victims of Crime Act,
authorizes additional law enforcement personnel to assist
states and localities, and reauthorizes the Hate Crimes
Statistics Act.
H.R. 994, the ``Regulatory Sunset and Review Act of 1995''
H.R. 994, ``The Regulatory Sunset and Review Act of 1995''
provides the framework for a scheduled reexamination of
regulations (i.e. ``rules'') in an effort to eliminate or
change those which no longer achieve the purpose for which they
were issued. Further, it requires existing rules to be analyzed
to ensure that they are authorized by law and that they conform
to the requirements which would apply if they were issued as
new rules.
The Act requires agencies periodically to review all
significant rules (and other rules designated by the
Administrator of the Office of Information and Regulatory
Affairs) for possible modification, consolidation or
termination. It also establishes a petition process by which
the public and certain committees of Congress may request
agencies to review other rules for the same purpose. For rules
which are proposed for change or termination, this ``sunset
review'' procedure is a prelude to the notice and comment
process traditionally applied under the Administrative
Procedure Act (APA), 5 U.S.C Sec. 553.
When it was first introduced, H.R. 994 was referred to both
the Judiciary Committee and the Committee on Government Reform
and Oversight. It was referred to the Judiciary Committee
because of its jurisdiction under House Rule X(j)(2) with
respect to administrative practice and procedure, which
includes the Administrative Procedure Act and the federal
regulatory process in general.
The Government Reform and Oversight Committee reported H.R.
994 with amendments on July 18, 1995. Its committee report was
filed on October 19. At that point, the Parliamentarian
extended the Judiciary Committee's original referral until
November 3, 1995.
On October 31, 1995, the Judiciary Committee met in open
session to consider the bill for markup. An en bloc amendment
was offered by Chairman Hyde to make H.R. 994 consistent with
the standard Federal rulemaking procedures set forth in the
Administrative Procedure Act (APA). The bill, as reported by
the Government Reform and Oversight Committee, would codify a
review and sunset procedure, but it would do so outside the
framework of the APA. The Hyde amendment conformed this sunset
review process with the public notice and comment requirements
of the existing APA. Consequently, no rule could be amended or
terminated unless the agency goes through the normal public
notice and comment requirements of the APA. Under the Hyde
amendment, the sunset review procedure would identify those
rules that should be altered, consolidated or in fact
terminated, and the ``tried and true'' procedures of the APA
will be the final step in implementing that result.
Consistent with this change, the Committee replaced the
term ``termination date'' with ``review deadline'' throughout
the bill. This made it clear that the end result of the sunset
review process will either be the issuance of a notice of
proposed rulemaking or a sunset review report concluding that
no change in the rule is required. Instead, the review deadline
is the time by which the agency must propose to continue,
modify, consolidate with another rule, or terminate a rule. If
the rule is to be modified, consolidated or terminated, the
agency must publish a notice of proposed rulemaking and conduct
a rulemaking proceeding under 5 U.S.C. Sec. 553.
Second, the Judiciary Committee amendment provided that a
public petition for review of a rule will be reviewed by the
agency which promulgated the rule. The Committee believed that
the agency is better suited than the Administrator of OIRA to
make this determination, because the agency has the expertise
and familiarity with its own rules, and can better weigh the
impact of review of the rule on agency operations.
This amendment also brought the public petition process in
conformance with the analogous provision of the APA, 5 U.S.C.
Sec. 553(e), in that it internalized the petition process
within the agency. The APA provision allows the public to
petition an agency for the issuance, amendment, or repeal of a
current rule. H.R. 994 expands on this right by requiring that
the agency respond to the petition within a particular time
frame.
Third, the Judiciary Committee amendment altered the
standard of review under which the agency, in the case of
public petitions, or the Administrator, in the case of
Congressional petitions, must decide whether a rule should be
designated for sunset review. It did this by applying the
standard of ``in the public interest.'' The Committee was
concerned that an ``unreasonable'' standard would not afford
the agencies and the Administrator with sufficient discretion
regarding public and Congressional petition requests.
The Hyde en bloc amendment was adopted by unanimous
consent. The Committee also adopted by voice vote an amendment
by Mr. Conyers, which would require an agency conducting a
sunset review to identify and make public the subject of all
contacts made with non-governmental persons relating to the
review. On October 31, 1995, the Committee ordered reported
H.R. 994 by voice vote (H.Rept. 104-284, part II).
Civil asset forfeiture reform
Federal forfeiture law dates back to the 1780's. The First
Congress authorized civil forfeiture of vessels and cargoes for
violations of U.S. customs laws. In the 1970's, Congress
enacted statutes that expanded the Federal Government's
forfeiture authority. These statutes, which included the
Racketeer Influence and Corrupt Organizations Act (RICO) and
the Controlled Substances Act, authorized the U.S. Department
of Justice and the U.S. Customs Service to confiscate assets
associated with organized crime and drug trafficking.
In 1984, Congress amended asset forfeiture provision
through enactment of the Comprehensive Crime Control Act of
1984. Prior to 1984, the Attorney General had several means for
disposing of forfeited property, including retaining the
property for official use or selling it. The proceeds from any
sale of forfeited property, as well as any forfeited money,
were to be used to pay forfeiture and sale-related expenses.
Any remaining amounts were to be deposited in the general fund
of the United States Treasury. The 1984 Comprehensive Crime
Control law and subsequent acts modified the procedure for
disposing of forfeited assets, establishing asset forfeiture
funds and allowing for the equitable sharing of forfeited
property. Under a 1992 law, the Customs forfeiture program was
expanded into the Treasury Department forfeiture program.
Concern about the unfairness of current civil asset
forfeiture procedures and the need to infuse due process
protection into the process led Chairman Hyde to introduce the
``Civil Asset Forfeiture Reform Act'' (H.R. 1916), as he had
done in the previous Congress. See H.R. 2417, 103rd Congress.
According to one estimate, in more than 80 percent of civil
asset forfeiture cases, the property owner is not charged with
a crime. Nevertheless, government officials usually keep the
seized property. Furthermore, to justify its seizure the
government need only present evidence of what its agents see as
``probable cause.'' That is the same standard required to
obtain a search warrant but, in that situation, police are
permitted to seek evidence of a crime, not to permanently take
someone's property. Even worse, under present law the burden of
proof is on the property owner, who must establish by a
``preponderance of the evidence'' that his or her property has
not been used in a criminal act or not otherwise forfeitable.
The basic presumption in American law--that you are
innocent until proven guilty--has been reversed. Property
owners who lease their apartments, cars, or boats risk losing
their property because of renters' conduct--conduct over which
the actual owner has no actual control. Currently, when a
property owner goes to federal court to challenge a seizure of
property, all the government must do is make an initial showing
of probable cause that the property may have been used in a
crime. The property owner then has to prove that the property
is ``innocent.'' Thus, the government can seize someone's
property by merely alleging criminality, not actual proof of
criminality.
To contest government forfeiture, owners are allowed only a
few days within which to file a claim and post a 10 percent
cash bond based on the value of the property. Even if the owner
is successful in getting the property returned, the government
is not liable for any damage to the property which occurs while
the government is in possession.
These are but a few of the most serious defects of our
current system. H.R. 1916 would change the rules of engagement
in the civil asset forfeiture process to eliminate these
problems. First and foremost, the bill places the burden of
proof on the government to establish the forfeitability of the
property. Section 4 of the Civil Asset Forfeiture Reform Act
would require the government to prove by clear and convincing
evidence that the seized property was subject to forfeiture.
And, the bill seeks to clarify the so-called ``innocent owner''
defense. Property used in the commission of certain crimes--
such as a car, boat or real property--is subject to forfeiture
unless used without the ``knowledge or consent'' of the actual
owner. A number of federal courts have ruled that to benefit
from this innocent owner defense, a property owner must show
both lack of consent and lack of knowledge. Section 8 of the
Civil Asset Forfeiture Reform Act would make clear that either
lack of knowledge or lack of consent by the owner is sufficient
if the owner took reasonable steps to prevent the illegal use
of the property.
Second, the bill would expand to 30 days from the date of
first publication the time a property owner has to challenge a
forfeiture proceeding. Current law allows them only 10 days to
challenge a federal judicial forfeiture and 20 days to
challenge a federal administrative forfeiture.
Section 5 of H.R. 1916 would also eliminate the cost bond
requirement. Right now, a property owner wanting to contest an
administrative forfeiture in federal court must post a bond of
the lesser of $5,000 or 10% of the value of the property seized
(but not less than $250). The Act would eliminate the cost bond
requirement.
At this time, the federal government is exempt from
liability for damage caused by the negligent handling or
storage of property while it is in the possession of law
enforcement. Section 2 of the Act would amend the Federal Tort
Claims Act (28 USC Sec. 2680) so as to allow property owners to
sue the government for negligence when the seized property is
damaged or lost while in the government's possession.
In addition, the Civil Asset Forfeiture Reform Act (section
6) provides that property can be released by a federal court if
continued possession by the government would cause the property
owner substantial hardship (such as preventing the functioning
of a business or leaving an individual homeless). The court may
place conditions on the release of the property necessary to
ensure its availability for forfeiture should the government
eventually prevail.
Finally, under current law, indigents have no right to
appointed counsel in civil forfeiture cases. Section 7 of the
Civil Asset Forfeiture Reform Act would allow the court to
appoint counsel for individuals financially unable to obtain
representation and directs that the funds come from the Justice
Assets Forfeiture Fund to pay for the cost of court-appointed
counsel.
On July 22, 1996, the Committee held a hearing on H.R.
1916. The witnesses included three individuals who described
incidents where current law has operated unfairly: Willie
Jones, King Cutkomp, and Stephen Komie, on behalf of the
Illinois State Bar Association. Also testifying were Stefan D.
Cassella, Deputy Chief of the Asset Forfeiture and Money
Laundering Section of the Department of Justice; Jan P.
Blanton, Director of the Treasury Executive Office for Asset
Forfeiture of the Department of the Treasury; James W. McMahon,
Superintendent of the New York State Police, on behalf of the
International Association of Chiefs of Police; Mark Kappelhoff,
Legislative Counsel for the American Civil Liberties Union;
E.E. (Bo) Edwards, co-chair of the Asset Forfeiture Abuse Task
Force of the National Association of Criminal Defense Lawyers;
and Terrance G. Reed, Chairperson of the RICO, Forfeiture, and
Civil Remedies Committee of the Section of Criminal Justice of
the American Bar Association.
National Gambling Impact Study Commission--H.R. 497, P.L. 104-169
Summary.--The Commission on the Review of the National
Policy Toward Gambling published the federal government's last
national study of gambling in 1976. Since that time, legalized
gambling has grown exponentially. According to the American
Gaming Association, some form of legalized gambling now exists
in 48 of the 50 states. Thirty-six states and the District of
Columbia now have state lotteries--rapid growth from the one
state lottery begun by New Hampshire in 1963. The AGA reports
that in 1994, Americans made more than 125 million visits to
casinos. In short, legalized gambling is now a large force in
the national economy.
Representative Frank Wolf introduced H.R. 497 which
establishes a national commission to study the impact of the
explosive growth of legalized gambling on the country.
Proponents of H.R. 497 argue that legalized gambling has
numerous negative effects, including increased crime in the
areas around gambling establishments and increased incidence of
compulsive gambling. They assert that gambling does not have
the positive economic effects that gambling operators claim.
Rather, they claim that the dollars spent on gambling are
dollars that would otherwise be spent on other businesses. In
their view, the social costs of crime and problem gambling more
than outweigh the benefits of the increased tax revenues that
gambling generates.
Under current law, most gambling operations are regulated
by state law. The proponents of H.R. 497 claim that in
legislative battles in the states, those who support gambling
have vast amounts of money to spend on lobbying, whereas the
opponents usually do not. Thus, gambling operations can
overwhelm state efforts at regulation. Gambling operations run
by Indians are regulated by the Indian Gaming Regulatory Act, a
federal law passed in 1988. Many state government officials
feel that they do not have sufficient control over Indian
gambling operations under this law.
Given these problems with state regulatory powers over
commercial and Indian gambling operations, the proponents of
H.R. 497 believe that there should be a national study of the
impact of gambling with an eye towards developing a national
policy on gambling. They believe that the tremendous growth of
legalized gambling is a national problem that demands a
national solution.
Opponents of H.R. 497 contend that gambling provides jobs
and generates tax revenues. They argue that the increased crime
surrounding gambling operations is nothing more than the
natural result of the increased number of people in the area.
They claim that a similar effect occurs around other
entertainment attractions. Likewise, they contend that gambling
operations do not draw dollars out of surrounding businesses
any more than any other entertainment business. Finally,
opponents of H.R. 497 acknowledge the existence of problem
gambling, but contend that the industry is making efforts to
address it.
Owners of commercial gambling operations believe that the
current law properly places the regulation in the hands of the
states. They contend that creating the national commission
contemplated in H.R. 497 would violate principles of
federalism. Owners of Indian gambling operations do not
necessarily object to a national commission subject to certain
conditions. Ultimately, the opponents of H.R. 497 argue that
gambling exists because the public demands it and that
therefore it is not a problem in need of study.
Hearing and Legislative History.--Representative Frank Wolf
introduced H.R. 497 on July 18, 1995. The full Committee held a
hearing on the bill on September 29, 1995 (Serial No. 34). The
witnesses were: Hon. Frank R. Wolf, United States
Representative, 10th District of Virginia; Hon. Paul Simon,
United States Senator, State of Illinois; Hon. Richard G.
Lugar, United States Senator, State of Indiana; Hon. John
Ensign, United States Representative, 1st District of Nevada;
Hon. Barbara F. Vucanovich, United States Representative, 2nd
District of Nevada; Hon. Harry Reid, United States Senator,
State of Nevada; Hon. Richard H. Bryan, United States Senator,
State of Nevada; Hon. Frank A. LoBiondo, United States
Representative, 2nd District of New Jersey; Mr. William Jahoda;
Mr. Paul R. Ashe, President, National Council on Problem
Gambling, Altamonte Springs, Florida; Mr. Frank J. Fahrenkopf,
Jr., President and Chief Executive Officer, American Gaming
Association, Washington, D.C.; Mr. Tom Grey, Executive
Director, National Coalition Against Legalized Gambling,
Galena, Illinois; Professor Earl Grinols, Department of
Economics, University of Illinois, Champaign, Illinois; Mr.
Rick Hill, Chairman, National Indian Gaming Association, Green
Bay, Wisconsin; and Mr. Jeremy Margolis, Altheimer & Gray,
Chicago, Illinois.
On November 8, 1995, the Committee marked up H.R. 497 and
ordered it favorably reported, as amended, by a voice vote. The
Committee filed its report on H.R. 497 on December 21, 1995.
(H. Rept. No. 104-440, Part I) H.R. 497 was then sequentially
referred to the Committee on Resources until February 28, 1996.
On March 5, 1996, the bill, as amended, passed the House on a
voice vote under suspension of the rules. The Committee then
engaged in extensive negotiations with the Senate Committee on
Governmental Affairs which had jurisdiction over similar
legislation in the Senate. These negotiations resulted in an
agreed draft.
On July 17, 1996, the Senate passed this draft as amendment
in the nature of a substitute to H.R. 497. On July 22, 1996,
the House concurred in the Senate amendment on a voice vote
under suspension of the rules. On August 3, 1996, the President
signed the bill into law. (Public Law No. 104-169)
Victims' Rights Constitutional Amendment--H.J. Res. 173 and 174
Summary.--The modern victims' rights movement began in
1973, when the chief probation officer in Fresno County,
California began including victim impact statements with
presentence investigation reports. Since that first stirring,
the movement has grown tremendously.
In 1982, California passed the first state constitutional
amendment to provide rights to victims of crimes. Shortly
thereafter, the report of the Presidential Task Force on
Victims of Crime recommended an amendment to the Sixth
Amendment of the federal constitution. This rather limited
amendment would have provided victims only the right to be
present and be heard at all critical stages of the proceedings.
Since the California amendment and the report of the
Presidential Task Force, twenty more states have adopted some
form of a constitutional amendment to provide rights to victims
of crime. All fifty states have some form of victims' rights
legislation.
Beginning in 1995, victims' rights advocates began to work
on plans for a federal constitutional amendment. Some have
questioned why such an amendment is needed if there is already
a statute in every state. Victims' rights advocates contend
that most of these statutes specifically prohibit any action
against prosecutors who refuse to enforce the statutory rights.
For that reason, they argue that these rights depend on the
good will of prosecutors. They believe that the rights of
victims will never be taken seriously until they are formally
recognized in the federal constitution.
The various proposals generally contain a list of
constitutional rights that victims of crime could assert at
various stages of criminal proceedings, including, among other
things, rights to be present and be heard, to be informed of
releases and escapes, to be protected from physical harm by the
defendant, and to receive restitution. The Committee expects to
continue working on this issue in the 105th Congress.
Hearing.--Chairman Hyde introduced H.J. Res. 173 and H.J.
Res. 174 on April 22, 1996. On July 11, 1996, the full
Committee held a legislative hearing on these two proposals
(Serial No. 91). The witnesses were: Hon. Jon Kyl, United
States Senator, State of Arizona; Hon. Dianne Feinstein, United
States Senator, State of California; Hon. Ed Royce, United
States Representative, 39th District of California; Hon. John
Schmidt, Associate Attorney General, United States Department
of Justice, Washington, D.C.; Mrs. Roberta Roper, Director,
Stephanie Roper Committee and Foundation, Inc., Upper Marlboro,
Maryland; Ms. Christine Long-Wagner, Chairperson, Victims'
Rights Committee, Law Enforcement Alliance of America,
Johnstown, Ohio; Mr. Chet Hodgin, State Vice-President, North
Carolina Victim Assistance Network, Jamestown, North Carolina;
Hon. Jeffrey Pine, Attorney General of Rhode Island,
Providence, Rhode Island, on behalf of the National Association
of Attorneys General; Ms. Elizabeth Semel, Semel & Feldman, San
Diego, California, on behalf of the National Association of
Criminal Defense Lawyers; Ms. Ellen Greenlee, Chief Defender,
Defender Association of Philadelphia, Philadelphia,
Pennsylvania, on behalf of the National Legal Aid and Defender
Association.
Encryption--H.R. 3011, the ``Security and Freedom through Encryption
(SAFE) Act''
Summary.--Encryption is the process of encoding data or
communications in a form that only the intended recipient can
understand. Until fairly recently, society generally considered
encryption to be the exclusive domain of national security and
law enforcement agencies. However, with the advent of computers
and digital electronic communications, encryption has become
increasingly important to persons and companies in the private
sector because they want to be able to transmit data securely.
Many people feel that the Internet has not become as successful
a commercial medium as it might because those who would use it
do not feel the data transmitted is secure. For example, people
do not want to transmit their credit card numbers when those
numbers may be stolen by hackers.
To understand the issues involved, it is necessary to
understand some basic terminology. In the digital world, data
and communications are expressed in a string of ones and zeroes
that are intelligible to computers, but not the average person.
An encryption scheme converts ones to zeroes and zeroes to ones
according to an algorithm or mathematical formula. The intended
recipient knows the formula or ``key'' which he uses to decode
the encrypted data.
The complexity of an encryption scheme determines how
difficult it is to break the code and therefore how well the
scheme protects the data. The complexity of the encryption
scheme is usually expressed as a number known as the ``bit
length.'' A bit is one digit in the key. A bit length of 40 is
considered relatively weak, whereas a bit length of 128 is
considered very strong.
The encryption debate encompasses two main issues. The
first is whether there should be any restrictions on the
domestic use and sale of encryption products, and in
particular, whether domestic users should be required to place
their keys in escrow with the government or some other neutral
third party, e.g. an existing computer company or an entity
created solely for the purpose of holding keys. Current law
does not have any such restrictions.
The second issue is whether there should be restrictions on
the export of encryption products. Current law regulates the
export of encryption products under the Arms Export Control
Act, 22 U.S.C. Sec. 2751 et seq., and the International
Trafficking in Arms Regulations, 22 C.F.R. Sec. 120 et seq. The
State Department, which administers the Act and the
Regulations, has as a matter of practice generally allowed the
export of encryption products with bit lengths of 40 or less.
The State Department treats these relatively weak encryption
products as non-defense products subject to the jurisdiction of
the Department of Commerce under the Export Administration Act,
50 U.S.C. App. Sec. 2401 et seq.
With respect to the domestic use of encryption, the
Administration had favored some form of a key escrow system. It
was not clear whether this system would be voluntary or
mandatory. It was also not clear whether the key would be
escrowed with a government agency or some other trusted third
party.
The law enforcement and national security agencies believe
that some form of key escrow system is necessary to maintain
their ability to perform legitimate wiretaps and to read
computer data seized through lawful means. They argue that
widespread use of strong encryption without key escrow would
end the use of wiretapping as a tool for fighting crime. For
example, they argue that instances occur when law enforcement
agencies learn in the course of a wiretap that someone is about
to commit a serious crime. If strong encryption prevented a
contemporaneous understanding of this information, the agencies
would not be able to prevent the crime. Likewise, if strong
encryption prevented the reading of lawfully seized computer
data, it could unreasonably delay criminal investigations. They
further argue that a key escrow system would have the salutary
side effect of providing a backup for those users who might
lose their keys.
The computer industry, the larger business community, and
privacy groups vehemently oppose any mandatory key escrow
system. They argue that a mandatory system would unnecessarily
invade the privacy of users. They believe that law enforcement
can solve its problems by acquiring better technology to decode
encrypted materials. They argue that our law and tradition does
not require private citizens to take positive action to assist
the government in surveilling them in any other instance.
Moreover, they contend that private citizens should not be
required to hand over access to their most precious assets to
anyone else regardless of whether it is the government or a
third party. In the digital age, information is often the most
valuable property that a company owns. They further argue that
the good that the widespread use of encryption can do by
preventing crime far outweighs the harm done by the relatively
few instances in which the use of encryption hampers law
enforcement.
With respect to the export control issue, the
Administration had opposed the lifting of the current export
controls. It argues that the controls are still effective and
that our allies would be distressed about the damage to law
enforcement efforts if we lifted the controls. It also argues
that the lifting of the controls might not help business that
much because other countries would respond by imposing import
controls. Finally, the Administration argues that it is making
efforts to find ways to relax the controls on a case by case
basis.
The computer industry and the privacy groups argue that the
controls ought to be substantially relaxed, if not eliminated.
They argue that the controls are easily evaded because many
encryption products are available to anyone over the Internet
and because it is legal for anyone to come into the United
States, buy encryption products, and take them out of the
country. Because the controls are so easily evaded, they
further argue that the controls serve only to put American
companies at a competitive disadvantage and to discourage
investment in the development of better encryption products. If
the situation does not change, they believe that America will
no longer dominate this field.
With respect to domestic law, H.R. 3011 would have codified
the existing law that there are no restrictions on the domestic
use or sale of encryption products. With respect to export
controls, H.R. 3011 would have substantially relaxed the export
controls, but it would not have totally eliminated them.
Subsequent to the Committee's hearing, the Administration
announced a new initiative on encryption. Under this
initiative, the details of which are still sketchy, the
Administration would provide an immediate, but slight
relaxation of the export controls. To receive the benefits of
this relaxation, computer companies would have to commit to
build products with key escrow features within the next two
years. The Committee looks forward to examining the details of
this proposal further when they become available. The Committee
expects to consider this issue further in the 105th Congress.
Hearing.--Representative Bob Goodlatte introduced H.R. 3011
on March 5, 1996. Senator Burns (S. 1726) and Senator Leahy (S.
1587) introduced similar legislation in the Senate. On
September 25, 1996, the full Committee held a hearing on H.R.
3011. The witnesses were: Hon. Bob Goodlatte, United States
Representative, 6th District of Virginia; Hon. Jamie Gorelick,
Deputy Attorney General, United States Department of Justice,
Washington, D.C.; Hon. William Crowell, Deputy Director,
National Security Agency, Fort Meade, Maryland; Ms. Melinda
Brown, Vice President and General Counsel, Lotus Development
Corporation, on behalf of the Business Software Alliance; Ms.
Roberta Katz, Vice-President and General Counsel, Netscape
Communications Corporation, Mountain View, California, on
behalf of the Information Technology Association of America and
the Software Publishers Association; Ms. Patricia Ripley,
Managing Director, Bear, Stearns & Company, Inc., New York, New
York; Dr. Charles Deneka, Senior Vice-President and Chief
Technology Officer, Corning, Inc., Corning, New York, on behalf
of the National Association of Manufacturers.
Title 49 Codification Update
On September 12, 1995, Chairman Hyde introduced H.R. 2297,
a bill to codify without substantive change laws related to
transportation and to improve the United States Code. At a
markup on April 24, 1996, the full Committee--by voice vote--
approved an amendment offered by Ranking Member Conyers to the
amendment in the nature of a substitute offered by Chairman
Hyde. H.R. 2297, as amended, was approved by voice vote and
ordered favorably reported.
On July 29, 1996, the House considered H.R. 2297 with
further changes incorporated into a floor manager's amendment
and--by voice vote--passed H.R. 2297, as amended, under
suspension of the rules. The House passed version of H.R. 2297
passed the Senate under unanimous consent on September 28,
1996. The President approved H.R. 2297 on October 11, 1996 as
Public Law 104-287.
Congress codified Title 49 into positive law in segments--
initially completing the task with the July 5, 1994 enactment
of Public Law 103-272. Later that year, Congress enacted Public
Law 103-429 to make technical improvements and incorporate in
Title 49 transportation related laws enacted after the June 30,
1993 cutoff date for Public Law 103-272 or not otherwise
included in Title 49. With the enactment of Public Law 104-287,
Title 49 again was updated--this time to incorporate an
additional law not already included in the codification and
make further technical corrections. Some of these technical
changes were necessitated by events after the September 25,
1994 cutoff date for the previous transportation related
codification--including the enactment of Public Law 104-88, the
ICC Termination Act of 1995, on December 29, 1995.
H.R. 2297 was drafted by the Office of the Law Revision
Counsel under its statutory authority to prepare and submit
periodically revisions of positive law titles of the Code to
keep those titles current.
Oversight Activities
Pursuant to Rule X, clause 2(d), the Committee adopted an
oversight plan for the 104th Congress. The oversight plan
incorporated the matters which the Committee deemed, at the
beginning of the Congress, to be worthy of its attention. Some
of the matters contained in the oversight plan were explored in
the context of legislative hearings. The following is a
discussion of the oversight activities of the full Committee.
The oversight activities of each of the subcommittees will be
discussed separately.
Full committee oversight hearings
April 6, 1995, International Terrorism: Threats and
Responses, Serial No. 24.
May 9, 1995, Telecommunications: The Role of the Department
of Justice, Serial No. 7.
February 6, 1996, Professional Sports Franchise Relocation:
Antitrust Implications. H.R. 2699--To require the consideration
of certain criteria in decisions to relocate professional
sports teams, and for other purposes. ``Fans Rights Act of
1995''. H.R. 2740--To protect sports fans and communities
throughout the Nation, and for other purposes. ``Fan Freedom
and Community Protection Act of 1995''. Serial No. 57.
February 27 and 28, 1996, Health Care Reform Issues:
Antitrust, Medical Malpractice Liability, and Volunteer
Liability. H.R. 911--To encourage the States to enact
legislation to grant immunity from personal civil liability,
under certain circumstances, to volunteers working on behalf of
nonprofit organizations and governmental entities. ``Volunteer
Protection Act of 1995''. H.R. 2925--To modify the application
of the antitrust laws to health care provider networks that
provide health care services; and for other purposes.
``Antitrust Health Care Advancement Act of 1996''. H.R. 2938--
To encourage the furnishing of health care services to low-
income individuals by exempting health care professionals from
liability for negligence for certain health care services
provided without charge except in cases of gross negligence or
willful misconduct, and for other purposes. ``Charitable
Medical Care Act of 1996''. Serial No. 66.
May 21, 1996, Church fires in the Southeast.
SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW
GEORGE W. GEKAS, Pennsylvania,
Chairman
JACK REED, Rhode Island HENRY J. HYDE, Illinois
JOHN BRYANT, Texas \1\ BOB INGLIS, South Carolina
JERROLD NADLER, New York STEVE CHABOT, Ohio
ROBERT C. SCOTT, Virginia MICHAEL PATRICK FLANAGAN, Illinois
ZOE LOFGREN, California \2\ BOB BARR, Pennsylvania
----------
\1\ John Bryant, Texas, resigned from the Subcommittee on Commercial
and Administrative Law effective March 12, 1996.
\2\ Zoe Lofgren, California, was assigned to the Subcommittee on
Commercial and Administrative Law effective March 12, 1996.
Tabulation and disposition of bills referred to the subcommittee
Legislation referred to the Subcommittee.......................... 66
Legislation reported favorably to the full Committee.............. 14
Legislation reported adversely to the full Committee.............. 0
Legislation reported without recommendation to the full Committee. 0
Legislation reported as original measure to the full Committee.... 1
Legislation discharged from the Subcommittee...................... 3
Legislation pending before the full Committee..................... 2
Legislation reported to the House................................. 12
Legislation discharged from the Committee......................... 4
Legislation pending in the House.................................. 4
Legislation passed by the House................................... 12
Legislation pending in the Senate................................. 3
Legislation vetoed by the President............................... 0
Legislation enacted into public law............................... 9
Legislation on which hearings were held........................... 23
Days of hearings (legislative and oversight)...................... 23
Jurisdiction of the Subcommittee
The Subcommittee on Commercial and Administrative Law has
legislative and oversight responsibility for the Legal Services
Corporation, the Office of Solicitor General, the
Administrative Conference of the United States, the U.S.
Bankruptcy Courts, and the Executive Office for the U.S.
Trustees of the Department of Justice. The Subcommittee's
legislative responsibilities include administrative law
(practice and procedure), regulatory flexibility, state
taxation affecting interstate commerce, bankruptcy law,
bankruptcy judgeships, legal services, federal debt collection,
the Contract Disputes Act, the Federal Arbitration Act, and
interstate compacts.
Legislative Activities
Administrative Law/Practice and Procedure
H.R. 1802, Reorganization of the Federal Administrative Judiciary Act
The nearly 1,300 Administrative Law Judges (ALJs) assigned
to 31 Federal agencies, over 80% of whom are at the Social
Security Administration, function as decisionmakers in disputes
between private parties and the government. Such disputes
generally fall into one of three categories: regulatory,
entitlement, and enforcement cases. Many ALJ decisions are
``recommended decisions'' and, as such, are reviewable. That is
, they can be reversed or modified by an agency head, board, or
commission. An injured private party can then file in an
Article III venue to reverse the agency decision. Without the
system of ALJs, the Federal courts would be overwhelmed by an
estimated four-fold increase in their caseload.
Over a ten-year period, two concerns have been uppermost in
shaping and advancing various legislative proposals to
establish an ALJ corps independent of any particular agency or
department of government. A major impetus has been the desire
to achieve greater economy and efficiency within the system of
ALJ adjudication. Workloads over time have varied between the
agencies, for example, and the ALJ Corps bill is intended to
facilitate the retraining, transfer, and reassignment of judges
as needed. A second concern has been to insure adherence to
constitutional and statutory standards of fairness in the ALJ
process and to convey to the public that this is indeed the
case. Since ALJs are currently employees of the agencies in
which they serve, the appearance of impartiality has sometimes
been questioned.
The Subcommittee held two legislative hearings on H.R.
1802, the Reorganization of the Federal Administrative
Judiciary Act, a bill introduced by Representative Gekas that
would consolidate all agency administrative law judges (ALJs)
into an independent, unified corps functioning within the
executive branch. These were held on July 26, 1995 (Serial No.
12, Part 1) and March 28, 1996 (Serial No. 12, Part 2). H.R.
1802 is identical to the ALJ corps bill that passed the Senate
during the 103rd Congress and is similar to a bill reported by
the House Judiciary Committee during the 102nd Congress.
Under the terms of H.R. 1802, all ALJs now employed by
Federal agencies would be transferred to the Corps, which would
operate under the direction of a Chief Administrative Law Judge
appointed by the President. The bill would create a central
panel, the Council of the Corps, to develop procedures and
guidelines governing the operation of the Corps, to appoint and
assign judges, to prescribe rules of practice and procedure,
and to supervise a system of discipline and removal. H.R. 1802
would also authorize the appropriation of sums necessary to
operate the Corps.
Witnesses at the July 26, 1995, hearing were: Senator
Howell Heflin; Representatives Tom Bevill, Barney Frank, and
Paul Kanjorski; John W. Hardwicke, Chief Administrative Law
Judge, Office of Hearings and Appeals, State of Maryland; John
T. Miller, Jr. on behalf of the American Bar Association;
Professor Victor G. Rosenblum, Professor of Law and Political
Science, Northwestern University School of Law; Administrative
Law Judge Christine Moore on behalf of Administrative Law Judge
William A. Pope, II, President, Federal Administrative Law
Judges Conference; Administrative Law Judge Eli Nash, Jr.,
President, Forum of United States Administrative Law Judges;
and Administrative Law Judge Melford Cleveland, President,
Association of Administrative Law Judges, Inc.
Witnesses for the March 28, 1996, hearing were: Elizabeth
A. Moler, Chair, Federal Energy Regulatory Commission; William
B. Gould, IV, Chairman, National Labor Relations Board; Rita
Geier, Deputy Associate Commissioner For Hearings and Appeals,
Social Security Administration; Stephen Calkins, General
Counsel, Federal Trade Commission; Administrative Law Judge Ron
Bernoski, Social Security Administration; Chief Administrative
Law Judge David Davidson, National Labor Relations Board; and
Administrative Law Judge Seymour Fier, Social Security
Administration.
H.R. 1802 was favorably reported by the Subcommittee
without amendment on September 14, 1995, by a vote of 6 to 3.
The full Committee did not consider H.R. 1802 during the 104th
Congress.
H.R. 2977, Administrative Dispute Resolution Act of 1996
The Administrative Dispute Resolution Act (5 U.S.C. 571-
583), initially signed into law by President George W. Bush in
1990, was designed to encourage and provide a framework to
facilitate the use of alternative means of dispute resolution
by agencies in the discharge of their administrative
responsibilities. The Act, which expired on October 1, 1995,
grew out of efforts by the Administrative Conference of the
United States (ACUS) and the Federal Mediation and Conciliation
Service (FMCS) that dated from the early 1980's to encourage
flexible alternatives for the resolution of disputes regarding
agency programs.
Administrative dispute resolution (ADR) is defined as a
procedure such as mediation, arbitration, facilitation, mini-
trials, or various combinations of these, used voluntarily to
resolve issues in controversy. ADR's purpose is to lower the
cost to all parties of agency decisions, while at the same time
encouraging the kind of compromise and settlement that
recognize and address the valid concerns of all parties to a
dispute. It developed in response to the growth in formal
hearings and litigation challenging agency actions that
threatened to overburden the regulatory and judicial process.
By all indications ADR has been successful, as the testimony
before the Subcommittee indicated at the oversight hearing on
December 12, 1995. Witnesses included: Peter R. Steenland, Jr.,
senior counsel for Administrative Dispute Resolution, Office of
the Associate Attorney General, U.S. Department of Justice;
Joseph M. McDade, assistant general counsel, Office of the
General Counsel, Department of the U.S. Air Force; Diane Liff,
ADR counsel, on behalf of John C. Wells, director, Federal
Mediation and Conciliation Service; Philip J. Harter, chair of
the section of Administrative Law and Regulatory Practice of
the American Bar Association; Gail Bingham, president, RESOLVE;
and James C. Diggs, vice-president and assistant general
counsel, TRW, Inc.
On February 29, 1996, the Subcommittee reported H.R. 2977
by voice vote. The bill permanently reauthorized the
Administrative Dispute Resolution Act with several amendments,
particularly with respect to confidentiality, designed to
improve its function. On March 12, 1996, the full Judiciary
Committee ordered reported the bill by voice vote without
amendment. H.R. 2977 was passed by the House with a technical
amendment under suspension by voice vote on June 4, 1995.
On June 12, 1996, the Senate passed H.R. 2977 with an
amendment substituting the language of S. 1224, as amended by
the Senate, insisted upon its amendment and requested a
conference . On September 19, 1996, the House disagreed to the
Senate amendment and agreed to a conference.
The Senate amendment differed in several respects from the
House bill. First, it contained a reauthorization of the
Negotiated Rulemaking Act, a law designed to provide for
improved agency rulemaking through the participation of special
committees representing the expertise of those who would be
affected by a proposed rule. Secondly, it amended the
Administrative Dispute Resolution Act by changing current law
to authorize the Government to engage in binding arbitration.
The current law permitted arbitration but provided that an
agency could vacate an arbiter's award. Thirdly, the Senate
amendment provided greater protection from disclosure of ADR
communications through the Freedom of Information Act than did
the House bill. Finally, the Senate amendment contained a
provision modifying the jurisdiction of the United States
district court over bid protests. Sometimes referred to as
``Scanwell'' jurisdiction, the current law permitted protests
by disappointed bidders for government contracts to be filed in
district courts as well as the United States court of claims.
The Senate amendment would have withdrawn this district court
jurisdiction and concentrated it within the court of claims.
On September 24, 1996, the Conferees filed a conference
report which, among other things, contained compromise language
dealing with Scanwell jurisdiction. It was not taken to the
floor. Instead, on September 26, 1996, a new bill, H.R. 4194,
was introduced by Chairman Hyde. It contained the language of
the conference report pertaining to the reauthorization of the
Administrative Dispute Resolution Act and the Negotiated
Rulemaking Act, but no language concerning the issue of
Scanwell jurisdiction. The House passed H.R. 4194 on September
27, 1996, by voice vote under suspension of the rules; on
September 30, 1996, the Senate passed the legislation, which
included another compromise of the Scanwell issue. The House
concurred with the Senate amendment on October 4, 1996, and the
bill was then signed by the President on October 19, 1996.
Public Law 104-320.
H.R. 2291, To extend the Administrative Conference of the United States
On September 8, 1995, Representative Gekas introduced H.R.
2291, a bill to authorize an annual appropriation of $1.8
million for FY 1995 through FY 1998 for the Administrative
Conference of the United States (ACUS). In addition to the
four-year reauthorization, H.R. 2291 also included three cost-
saving and technical changes to the Conference's enabling
legislation: a reduction in the effective rate of pay of the
ACUS Chairman from Level II to Level III of the Executive
Schedule; a clarification that Conference members from the
private sector do not perform duties that make them subject to
the Emoluments Clause of the Constitution; and a specific
quorum requirement for actions taken at Conference assemblies.
As noted earlier, an oversight hearing on ACUS had been held on
May 11, 1995 (Serial No. 6).
On September 14, 1995, the Subcommittee held a markup at
which H.R. 2291 was ordered favorably reported to the full
Committee by a vote of 5 to 3. However, funding for ACUS in FY
1996 was deleted by House-Senate conferees on the Treasury-
Postal Service appropriations bill (H.R. 2020) Public Law 104-
52. Consequently, no further action was taken on H.R. 2291. The
Administrative Conference of the United States officially
ceased operations on October 31, 1995.
Bankruptcy
H.R. 234, Boating and Aviation Operation Safety Act of 1994
Sec. 523(a) of the Bankruptcy Code provides a list of debts
that will be nondischargeable at the conclusion of the
bankruptcy process. It includes those arising from ``death or
personal injury caused by the debtor's operation of a motor
vehicle if such operation was unlawful because the debtor was
intoxicated from using alcohol, a drug, or another substance.''
(Sec. 523(a)(9)) This provision is made applicable to personal
bankruptcies filed under various Bankruptcy Code chapters--
including both Chapter 7 (liquidation) and Chapter 13
(adjustment of debts of an individual with regular income).
H.R. 234 would simply insert ``watercraft, or aircraft''
after ``motor vehicle,'' in 11 U.S.C. 523(a)(9). Having
previously made the policy judgement that the equities of
persons injured by drunk drivers outweigh the responsible
debtor's interest in a fresh start, Congress now would be
clarifying that the policy applies not only on land but also on
the water--and in the air--thus bringing to an end conflicting
judicial opinions in such cases.
On July 13, 1995, the Subcommittee held a hearing (Serial
No. 10) on H.R. 234, the Boating and Aviation Operation Safety
Act, introduced by Representative Ehlers. Testimony presented
at the Subcommittee hearing by Bruce A. Gilmore, Director of
Boating Administration, Maryland Department of Natural
Resources, described the hazards associated with the
irresponsible operation of watercraft, including an increasing
number of injuries and deaths attributable to new design
personal watercraft capable of speeds exceeding 40 knots.
Testimony was also received from: Representative Vernon J.
Ehlers; Stephen H. Case, Vice Chair of the Legislative
Committee of the National Bankruptcy Conference; and Gerald M.
O'Donnell, President of the National Association of Chapter 13
Trustees.
On September 14, 1995, the Subcommittee reported H.R. 234
by voice vote and on October 31, 1995, the Committee on the
Judiciary, by voice vote, ordered the bill favorably reported
to the House of Representatives. (H. Rept. 104-356.) The year
``1994'' in the title of the bill became ``1995,'' as a result
of a technical change. On June 4, 1996 the House passed H.R.
234 under suspension of the rules by a voice vote. The Senate
took no action on H.R. 234, however, before the end of the
104th Congress.
H.R. 2604, Bankruptcy Judgeship Act of 1995
H.R. 2604, the Bankruptcy Judgeship Act of 1995, was
introduced by Representative Gekas at the request of the
Judicial Conference of the United States. It would provide five
permanent and six temporary judgeships in eight judicial
districts reflecting a reassessment and reduction from a 1993
Judicial Conference request for 19 new positions that was not
acted upon by the 103rd Congress. It also more faithfully
reflected Congressional policy favoring the creation of
temporary as opposed to permanent bankruptcy judgeships
whenever possible and appropriate.
Bankruptcy judges are appointed for 14 year terms by the
regional United States Courts of Appeals. A person appointed to
a temporary judgeship may serve a full term and be eligible for
reappointment, just as a person appointed to a permanent
judgeship. The aggregate numbers of judgeships in district that
receive temporary positions, however, eventually revert to
former levels because certain vacancies are not filled.
The Judicial Conference recommendations are based on a
comprehensive analysis of each court's caseload statistics and
an on-site review of its work and procedures. A weighted-hours
system is the first factor considered in this process, under
which each of 17 different categories of bankruptcy cases is
assigned a time value so that the sheer number of cases alone
does not constitute the workload profile. Other pertinent
factors taken into account include the nature and mix of the
court's caseload, historic caseload data and filing trends,
geographic, economic and demographic factors in the district,
the effectiveness of case management efforts by the court, the
availability of alternative solutions and resources for
handling the court's workload, and the impact that the approval
of the requested additional resources would have on the court's
per judgeship caseload. Bankruptcy filings have risen in nearly
every judicial district and at the time of Subcommittee
consideration of H.R. 2604 were approaching one million new
cases annually.
The Subcommittee held a hearing on H.R. 2604 on December 7,
1995, at which time there were 326 authorized bankruptcy
judgeships nationwide, with ten current vacancies (Serial No.
36). The witnesses were: Chief Judge Paul A. Magnuson of the
United States District Court, District of Minnesota, and
Chairman of the Judicial Conference Committee on Administration
of the Bankruptcy System; Chief Bankruptcy Judge Paul Mannes,
District of Maryland, and Chairman of the Judicial Conference
Advisory Committee on Bankruptcy Rules; Bankruptcy Judge
William A. Anderson, Western District of Virginia; and Harry D.
Dixon Jr., Chairman of the Board of the American Bankruptcy
Institute.
On February 29, 1996, the Subcommittee ordered the bill
favorably reported, by voice vote and without amendment, to the
Judiciary Committee. The Judiciary Committee considered the
bill on March 12, 1996, and ordered it favorably reported
without amendment, by voice vote (H.Rept. 104-569). No further
action was taken on H.R. 2604 prior to the end of the 104th
Congress.
The Legal Services Corporation
H.R. 2277, The Legal Aid Act of 1995
For many years the Legal Services Corporation (LSC) has
been controversial. In fact, due to the controversy surrounding
the Corporation, it has not been reauthorized since 1980.
During the first session of this Congress, the Committee
reported a bill to authorize a new delivery system for legal
aid to the poor.
H.R. 2277, ``The Legal Aid Act of 1995,'' would have
repealed the Legal Services Corporation Act, abolished the
Legal Services Corporation, and created a new program to
provide categorical grants to the states for the provision of
legal aid to the poor. The legislation required the Attorney
General to direct the Office of Justice Programs to make grants
to states to provide legal services for the poor and to insure
compliance with the new Legal Aid Grant Act. The legislation
specifically defined persons who could provide legal services,
persons eligible to receive legal services, and, in general,
the types of causes of action a provider could engage in on
behalf of a qualified client. The bill required States to make
federal funds available for legal services pursuant to a
competitive bid process and to award contracts to the bidder
who was best qualified and who bid to provide the greatest
number of hours of legal services to eligible clients.
H.R. 2277, which was introduced on September 7, 1995, by
Representative Gekas was the product of three days of hearings
held by the Subcommittee on Commercial and Administrative Law.
The first hearing held on May 16, 1995, was designed to allow
members of the Subcommittee to hear from proponents of the
Legal Services Corporation. The Subcommittee heard testimony at
this hearing from: Abner J. Mikva, Counsel to the President,
The White House; Jamie Gorelick, Deputy Attorney General, U.S.
Department of Justice; John Carey, General Counsel, Federal
Emergency Management Agency; Alexander D. Forger, President,
Legal Services Corporation; Douglas F. Eakeley, Chairman of the
Board, Legal Services Corporation; Thomas F. Smegal, Jr.,
Member of the Board, Legal Services Corporation; and Ernestine
P. Watlington, Member of the Board, Legal Services Corporation.
The second day of hearings, conducted on June 15, 1995,
focused primarily on testimony from critics of the LSC.
Witnesses at this hearing included: David Keene, Chairman,
American Conservative Union; Howard Phillips, Chairman,
Conservative Caucus; Ken Boehm, Chairman, National Legal and
Policy Center; Harry Bell, President, South Carolina Farm
Bureau on behalf of the American Farm Bureau; Judy Mauch, Mauch
Farms; Jodie Stearns, Mitchell, Stearns & Hammer; Stan Eury,
North Carolina Grower's Association; Dan Gerawan, Gerawan
Ranches; Libby Whittley, Farm Business Coalition; John Hiscox,
Director, Macon Housing Authority; Harriet Henson, Northside
Tenants Reorganization; Zelma Boggess, Director, Charleston
Housing Authority; Michael Pileggi, Philadelphia Housing
Authority; and John McKay, Chairman of the Equal Justice
Coalition.
The third hearing, held on July 17, 1995, focused on
solutions to problems facing the LSC and inadequacies of the
current statute. With an eye toward drafting legislation, the
Subcommittee heard from the following public witnesses: Alan D.
Bersin, U.S. Attorney for the Southern District of California
on behalf of the Department of Justice; Thomas J. Madden,
Former General Counsel, Law Enforcement Assistance
Administration, Department of Justice; Rev. Fred Kammer, S.J.,
President, Catholic Charities, U.S.A.; Robert E. Adams,
Executive Director, Legal Services of the Fourth Judicial
District, South Carolina; Jack Martin, Vice President, the Ford
Motor Company; Neal I. Hogan, General Counsel, Dublin Castle
Group; Edouard R. Quatrevaux, Inspector General, Legal Services
Corporation; Penny Pullen, Former Board Member of the Legal
Services Corporation; Hon. Howard H. Dana, Former Board Member
of the Legal Services Corporation; Terrance Wear, Former
President of the Legal Services Corporation; and Mike Wallace,
Former Chairman of the Legal Services Corporation.
The Committee on the Judiciary reported favorably H.R.
2277, amended, to the House on September 21, 1995; it had been
ordered favorably reported by a vote of 18 to 13 (H. Rept. 104-
255). The House took no further action on this measure.
Regulatory Reform/Regulatory Flexibility
H.R. 9 (titles VI, VII, VIII), The Job Creation and Wage Enhancement
Act of 1995 and H.R. 926 (titles I, II, III), The Regulatory
Reform and Relief Act
Early in the 104th Congress, the Subcommittee considered
regulatory reform as represented in titles VI, VII and VIII of
H.R. 9, legislation which formed one of the provisions of the
Contract With America. On February 3, 1995, the Subcommittee
held a hearing on proposed amendments to the Regulatory
Flexibility Act contained in title VI of H.R. 9, and on a
proposed regulatory bill of rights and whistle blowers'
protection provisions to protect citizens from abuse at the
hands of federal agencies, embodied in title VIII of that bill.
On February 6, 1995, the Subcommittee held a hearing on title
VII of H.R. 9, which provided for the creation of a Regulatory
Impact Analysis by agencies to accompany the promulgation of
major rules.
Witnesses testifying on title VI were: Representatives Ike
Skelton and Tom Ewing; John Spotila, General Counsel, Small
Business Administration; Jere Glover, Chief Counsel for
Advocacy, Small Business Administration; Joseph Stehlin, Green
Cove Maritime, Inc.; Rick Stadelman, Executive Director,
Wisconsin Towns & Townships; Bennie Thayer, President, National
Association of Self-Employed; Donald Dorr, representing the
U.S. Chamber of Commerce; James P. Carty, Vice President of
Small Manufacturers, National Association of Manufacturers; Kim
McKernan, Director of House Governmental Affairs, National
Federation of Independent Businessmen; and David C. Vladeck,
Director of the Public Citizen Litigation Group.
Witnesses testifying on title VII were: Sally Katzen,
Administrator of the Office of Information and Regulatory
Affairs of the Office of Management and Budget; Cornelius E.
Hubner, President of the American Felt and Filter Company;
Brian Maher, President of Maher Terminals; Al Wenger, Executive
Officer, Wenger Feed Mills; Ed Dunkelberger, representing the
National Food Processors Association; C. Boyden Gray; David
Hawkins, Senior Attorney, Natural Resources Defense Council;
James C. Miller, representing Citizens for a Sound Economy;
Thomasina Rogers, Chair of the Administrative Conference of the
United States, accompanied by Ernest Gellhorn; Gary Bass,
Executive Director, OMB Watch; and George C. Freeman, Jr.,
Chairman of the American Bar Association's Working Group on
Regulatory Reform.
Witnesses testifying on title VIII were: Representative Tom
DeLay; Jamie Gorelick, Deputy Attorney General, Department of
Justice; Edward Hudgins, Director of Regulatory Studies, CATO
Institute; and Susan Eckerly, Deputy Director of Economic
Policy, Heritage Foundation. The prepared statement of
Professor Thomas O. McGarity of the University of Texas School
of Law, was made part of the hearing record.
Subsequent to the hearings, and based upon testimony
received by the Subcommittee, H.R. 926 was introduced by
Representative Gekas. Titles I, II & III of H.R. 926 correspond
with titles VI, VII & VIII of H.R. 9.
H.R. 926, Title I
Title I of H.R. 926, ``Strengthening Regulatory
Flexibility,'' amended the Regulatory Flexibility Act (5 U.S.C.
601 et seq.) which was designed to relieve the regulatory
burden on small entities that results when agencies promulgate
rules that have not been fashioned in a manner that considers
and takes into account the fact that the regulatees will be of
varying sizes--the so-called ``one-size-fits-all'' syndrome.
The Regulatory Flexibility Act (Reg-Flex), enacted in 1980,
requires that agencies prepare, where appropriate, a regulatory
flexibility analysis that will consider how to mitigate
potentially adverse impacts of a regulation on smaller
entities. Unfortunately, Reg-Flex had not been able to fulfill
its potential because it did not provide regulatees with the
opportunity for judicial review of whether an agency has
complied with its provisions. Title I of H.R. 926 provided
judicial review to small entities to determine whether rules
have been adopted in compliance with the RFA, and required
agencies to circulate proposed rules to the Chief Counsel for
Advocacy of the Small Business Administration to permit him an
opportunity to comment upon the effect they would have on small
entities. This title also provided a sense of the Congress that
the Chief Counsel for Advocacy should be authorized to file
briefs as an amicus curiae in actions before any federal court.
H.R. 926, Title II
Title II of H.R. 926, ``Regulatory Impact Analysis,'' was
intended to provide the public greater opportunity to
participate in the agency rulemaking process. This provision
would have required agencies to give advance notice to the
public of impending rulemaking activity, and would have created
new procedures by which citizens could affect agency
determinations regarding whether or not to hold a public
hearing or to extend a public comment period for rulemaking
purposes. Most significantly, title II would have required
agencies to complete and publish a regulatory impact analysis
with regard to every major rule issued by an agency and would
have provided authority to the director of the Office of
Management and Budget to enforce agency compliance with such
requirements. The impact analysis criteria set forth in title
II was intended to require agencies to undertake a cost and
benefit analysis of every major rulemaking and explain why the
method chosen by the agency to implement a law was the least
costly.
H.R. 926, Title III
The protections against regulatory abuse provided in title
VIII, ``Protection Against Federal Regulatory Abuse,'' of H.R.
9 were divided into two subtitles: (A) a regulatory ``bill of
rights,'' based in part on the rights currently available to
criminal defendants, for parties subject to a Federal agency
investigation or enforcement action; and (B), provisions to
protect private whistle blowers against reprisal for disclosing
information they believe is indicative of a prohibited
regulatory practice. Subtitle B included a list of eight
prohibited regulatory practices, ranging from inconsistent
application of the law to arbitrary action, mismanagement, and
waste of resources.
Title III of H.R. 926, ``Protections,'' responded to the
problem of abuse and retaliation by government regulators
originally addressed by title VIII of H.R. 9. It directed the
President, within 180 days of enactment, to prescribe
regulations for employees of the executive branch to protect
persons against abuse, reprisal, or retaliation in connection
with the enforcement of Federal laws and regulations. Such
regulations must also insure that persons are treated fairly,
equitably, and with due regard for their Constitutional rights.
* * * * * * *
H.R. 926 was considered by the full Committee and ordered
reported favorably by voice vote on February 16, 1995. Three
amendments were adopted to the bill during full Committee
consideration, all by voice vote. The first was an amendment
offered by Representative Gekas which provided an exemption
from the pre-publication notification requirements of the RFA
for certain monetary agencies. The second was an amendment
offered by Representative Schumer which provided an exemption
for certain monetary agencies from OMB enforcement authority
over the regulatory impact analysis requirements of title II.
The third was an amendment offered by Representative Reed which
limited the period for review of the Director of OMB to 90 days
regarding preliminary and final impact analyses and proposed
and final rules.
H.R. 926 was considered by the House on March 1, 1995, and
passed by a vote of 415 to 15. The only amendment adopted was
offered by Representative Ewing to extend the period during
which an affected entity can seek judicial review of an
agency's compliance with reg-flex from 180 days in the original
bill to one year notwithstanding any other provision of law.
H.R. 926 was not acted upon by the Senate which considered
instead a larger regulatory reform package represented by S.
343. Although debated on the floor, S. 343 was not passed.
Ultimately, reforms similar to those contained in title I of
H.R. 926 were enacted into law as a part of H.R. 3136 (The
Contract With America Advancement Act) (Public Law 104-121),
which included numerous other provisions.
H.R. 450/S. 219, The Regulatory Transition Act of 1995
H.R. 450 was introduced by Representative Tom Delay to
ensure economy and efficiency of Federal Government Operations
by establishing a moratorium on regulatory rulemaking actions,
and for other purposes.
H.R. 450 was referred to the Committee on Government Reform
and Oversight and in addition to the Committee on the
Judiciary. The Committee on Government Reform and Oversight
favorably reported H.R. 450 to the House as amended in H. Rept.
104-39, part 1, on February 16, 1995; on February 23, 1995,
pursuant to the rule, the Committee on the Judiciary was
discharged from further consideration; on February 24, 1995,
the bill was passed by the House with additional floor
amendments and was sent to the Senate. S. 219, the companion
bill to H.R. 450, was following a similar path of progression
in the Senate (S. Rept. 104-15) and was passed by the Senate as
amended on March 29, 1995: on March 30, 1995, it was held at
desk in the House; on May 17, 1995, the House passed S. 219,
striking all after the enacting clause and substituting the
language of H.R. 450 as passed by the House; and on June 16,
1995, the Senate disagreed to the House amendment and requested
a conference.
No further action was taken.
H.R. 1047, Voluntary Environmental Self-Evaluation Act
The Subcommittee conducted a hearing on June 29, 1995, on
H.R. 1047, as introduced by Representative Joel Hefley of
Colorado. The legislation was designed to encourage cooperation
between the Government and private sector in following and
enforcing environmental laws and regulations by creating a
privilege from disclosure of certain information acquired
pursuant to a voluntary environmental self-evaluation and
providing for limited immunity from penalties if such
information would be voluntarily disclosed. The bill was
intended to promote the use of environmental self-audits by
providing for a privilege and immunity, which the Environmental
Protection Agency and other agencies have encouraged as a means
to promote compliance with environmental laws and regulations.
Witnesses heard by the Subcommittee included:
Representatives Joel Hefley and Ed Bryant; Carl A. Mattia, Vice
President, Environment, Health and Safety Management Systems,
The B.F. Goodrich Company, on behalf of the Corporate
Environmental Enforcement Council, Inc.; Bruce R. Adler, Senior
Environmental Health & Safety Counsel, Corporate Environmental
Programs Department, General Electric Corporation, on behalf of
the Compliance Management & Policy Group; Mark V. Stanga,
Environmental Affairs Counsel, Litton Industries, Inc., on
behalf of Electronic Industries Association; Alan Liebowitz,
Director, Environmental Health and Safety, ITT Defense and
Electronics Corp.; Steven A. Herman, Assistant Administrator,
Office of Enforcement & Compliance Assurance, U.S.
Environmental Protection Agency; Lois Schiffer, Assistant
Attorney General, Environment & Natural Resources Division,
Department of Justice, accompanied by Randall Rathbun, United
States Attorney, District of Kansas; Harry Kelso, Director of
Enforcement and Policy, Virginia Department of Environmental
Quality; David W. Ronald, Assistant Attorney General,
Environmental Enforcement Section, Office of Attorney General
of Arizona; Cynthia L. Goldman, Of Counsel, Gibson, Dunn &
Crutcher, on behalf of the Colorado Association of Commerce and
Industry; Peter Gish, Counsel, Clean Harbors Environment
Service, Inc.; Robert L. DeSchamps, III, County Attorney of
Missoula, Montana, representing the National District Attorneys
Association; and Joseph G. Block, Venable, Baetjer, Howard &
Civiletti.
The Subcommittee took no further action.
H.R. 1670, The Federal Acquisition Reform Act of 1995
H.R. 1670, introduced by Representative Clinger to revise
and streamline the acquisition laws of the Federal Government,
to reorganize the mechanisms for resolving Federal procurement
disputes, and for other purposes.
H.R. 1670 was referred to the Committee on Government
Reform and Oversight and in addition to the Committee on
National Security, the Committee on the Judiciary, and the
Committee on Small Business. The Committee on Government Reform
and Oversight favorably reported H.R. 1670 to the House as
amended in H. Rept. 104-222, part 1, on August 1, 1995; on
September 12, 1995, the Committee on Small Business was
discharged from further consideration; on September 13, 1995,
the Committee on National Security and the Committee on the
Judiciary were discharged from further consideration; on
September 14, 1995, H.R. 1670 passed the House as amended; and
on September 18, 1995, it was referred to the Senate Committee
on Governmental Affairs.
Although no further action was taken on H.R. 1670, portions
of H.R. 1670 contained related provisions included in S. 1124,
the ``National Defense Authorization Act for Fiscal Year
1996,'' which was signed into law on February 10, 1996,
becoming Public Law 104-106.
Delegation of Congressional Authority to Federal Agencies
On September 12, 1996, the Subcommittee held a hearing on
the role of Congress in monitoring administrative rulemaking.
Three bills had been introduced which had provided in varying
degrees for congressional approval of administrative rules
before they could become formally effective. The bills were:
H.R. 47, The Regulatory Relief and Reform Act (Rep. Taylor);
H.R. 2727, The Congressional Responsibility Act of 1995 (Rep.
Hayworth); and H.R. 2990, The Significant Regulation Oversight
Act of 1996 (Rep. Smith of Michigan).
Witness at the hearing included: Representatives Nick
Smith, J. D. Hayworth, Charles H. Taylor, Bill K. Brewster, and
Garry A. Condit; Professor David Schoenbrod, New York Law
School; Professor Ernest Gellhorn, George Mason University
School of Law; Gregory S. Wetstone, Legislative Director,
Natural Resources Defense Council; Jerry Taylor, Director of
Natural Resources Studies, Cato Institute; and Professor Marci
A. Hamilton, Benjamin N. Cardozo School of Law, Yeshiva
University.
The hearing considered the question of whether the Congress
has abdicated its proper responsibilities by permitting federal
agencies to promulgate rules and amendments thereto without
having these approved by the Congress in advance of their
taking effect. Proponents of the three bills argued that
Congressional oversight would best be exercised by requiring
its approval, while those opposed to such a process argued that
this would overly tax the powers of the Congress. The
Subcommittee took no action on the bills.
H.R. 3307, The Regulatory Fair Warning Act
Regulatory reform was a priority for the 104th Congress.
One such bill, the ``Regulatory Fair Warning Act'' (H.R. 3307)
was introduced to provide some relief to the business community
regarding the imposition of penalties by agencies.
Specifically, H.R. 3307 would have amended the
Administrative Procedure Act and title 28 of the U.S. Code to
provide a statutory basis for affirmative defenses against
penalties imposed by agencies or courts for the violation of
rules where: (1) a rule or other policy document published in
the Federal Register (or of which a person had actual notice)
failed to give a regulated party fair warning of the conduct
prohibited or required; or (2) a person reasonably relied upon
a written statement by a Federal or State official that his or
her conduct was in compliance with the rule. The legislation
would have codified the decisions of several recent U.S.
circuit courts of appeals that have addressed the principles
involved in the adequate notice or fair warning defense. H.R.
3307 was intended to protect regulated individuals or entities
that are subject to agency penalties, who in good faith could
prove the defenses provided for in the bill.
The Subcommittee held a hearing on H.R. 3307 on May 2,
1996. Testimony at this hearing was received from: James F.
Simon, Deputy Assistant Attorney General, Environment and
Natural Resources Division of the Department of Justice,
accompanied by Edward L. Dowd, Jr., United States Attorney,
Eastern District of Missouri; Roger J. Marzulla, former
Assistant Attorney General, Environment and Natural Resources
Division of the Department of Justice; David Hawkins, Senior
Attorney, Natural Resources Defense Council; Laurent R.
Hourcle, Assistant Professor of Environmental Law, The National
Law Center, The George Washington University; Susan Eckerly,
Director of Regulatory Policy, Citizens for a Sound Economy;
Robert J. Brace, Robert Brace Farm, Inc.; Vitas M. Plioplys,
Manager of Safety Services, R.R. Donnelley & Sons, Co.; and
Robert McMackin, with additional material submitted by Andrew
S. Liscow, Vice President, Cincinnati Preserving Co.
The Subcommittee, on June 20, 1996, reported the amended
bill favorably by voice vote. H.R. 3307 was ordered favorably
reported by the full Committee, amended, on August 1, 1996, by
a vote of 16 to 9. H.Rept. 104-859. The House took no further
action on the measure.
State Taxation
H.R. 394, To amend title 4 of the United States Code to limit State
taxation of certain pension income
Under the Constitution, States have the power to tax both
on the basis of residence and on the basis of income source. In
the area of pension income taxation, States have typically
followed the Federal model of deferring payment of income taxes
on pension contributions and related investment earnings in
return for being able to tax pension payments when they are
distributed to the taxpayer after retirement. Complications
arise, however, when the taxpayer has relocated to another
State. In some cases, the State that granted the original tax
deferral will seek to collect taxes on pension payments made to
the relocated retiree. This practice has caused great concern
among retirees, particularly those who have moved to a State
that does not assess a State income tax, providing nothing
against which to apply a credit for payments to the taxing
State.
Responding to the retiree concerns, Chairman Gekas
scheduled a hearing on June 28, 1995, on three bills that would
limit State taxation of pension income paid to individuals who
are no longer residents of the taxing State (Serial No. 11).
The bills were H.R. 371, introduced by Representative Stump,
H.R. 744, introduced by Representative Pickett, and H.R. 394,
introduced by Representative Vucanovich. Testifying at the
hearing were the three bills' sponsors, as well as: Senator
Harry Reid of Nevada; Professor James C. Smith of the
University of Georgia School of Law; William Hoffman of the
Retirees to Eliminate State Income Source Tax; W. Christopher
Farrell, Legislative Representative for the National
Association of Retired Federal Employees, Harley Duncan,
Executive Director of the Federation of Tax Administrators; and
Randall L. Johnson, Director of Benefits Planning for Motorola,
Inc., on behalf of several employer groups.
The Subcommittee met to mark up H.R. 394 on October 19,
1995, and the bill was favorably reported by voice vote to the
full Committee in the form of a single amendment in the nature
of a substitute incorporating an amendment adopted during
markup. At the Judiciary Committee markup on October 31, 1995,
the bill was reported favorably to the House, as amended--with
an additional full Committee amendment--by voice vote. (H.
Rept. 104-389) The bill in the form of a manager's substitute
amendment passed the House, under suspension of the rules, on
December 18, 1995. On December 22, 1995, H.R. 394 passed the
Senate without amendment and on January 10, 1996, it was
approved by the President as Public Law 104-95.
H.R. 3163, Taxation of Federal Employees Working on the Columbia River
On September 28, 1996, the House considered H.R. 3163 (Rep.
Hastings of Washington) under suspension of the rules. The
bill, which had been introduced on March 26, 1996, and referred
to the Subcommittee, was defeated by a vote of 199-209. The
bill provided that Oregon could not tax compensation paid to a
resident of Washington for services as a Federal employee at a
Federal hydroelectric facility located on the Columbia River.
Sponsors of the legislation asserted that Oregon unfairly taxes
Washington residents working at Federal facilities which span
the Columbia River where the state boundary sometimes divides
work-environments so that employees have to keep detailed
records of how much of their duties are performed in spaces
which are respectively only feet apart. Opponents of the
legislation argued that Oregon should be entitled to tax
individuals earning money within its borders. The Subcommittee
did not conduct hearings on the bill which was taken directly
to the floor as the 104th Congress was drawing to a close.
Interstate Compacts
The Subcommittee considered a number of interstate
compacts, which under the Constitution the Congress must
approve.
H.R. 2064, The Historic Chattahoochee compact
On October 19, 1995, the Subcommittee held a hearing on and
reported favorably by voice vote H.R. 2064 (Rep. Everett),
granting the consent of the Congress to several technical
amendments to the Historic Chattahoochee Compact between the
states of Georgia and Alabama. The Judiciary Committee ordered
the measure favorably reported by voice vote on October 31,
1995, and the committee report was filed on November 30, 1995
(H. Rept. 104-376). The bill passed the House on March 12,
1996, under suspension of the rules, and was sent to the
Senate. The Senate passed H.R. 2064 on May 3, 1996, and it was
signed by the President on May 16, 1996, to become Public Law
104-144.
H.J. Res. 78, The Bi-State development compact
On October 19, 1995, the Subcommittee held a hearing on and
reported (with a technical amendment) by voice vote H.J. Res.
78 (Rep. Talent), granting the consent of the Congress to
several amendments to the Bi-State Development Agency compact
between the states of Missouri and Illinois. The compact,
entered into by the two states in 1950, formed the Bi-State
Development Agency which was designed to promote planning,
development and transportation in the area surrounding St.
Louis on both sides of the Mississippi River. In 1993, the
Agency began operating a light rail system passing through
several municipalities and counties, and crossing states
boundaries. However, the original compact did not grant the
Agency the specific authority to appoint or employ a security
force or to enact rules and regulations governing fare evasion
or other conduct on its facilities and conveyances.
Consequently, the Agency had difficulty insuring that fare
evasion and other prohibited conduct was uniformly punished. In
addition, issues had arisen regarding the jurisdiction of local
law enforcement to arrest persons for conduct occurring on the
system. The Agency sought from its respective legislatures
power to employ personnel to maintain safety and order to
enforce Agency rules and regulations. In addition, the Agency
sought the authority to adopt rules and regulations for proper
operation of the passenger transportation facilities and for
users of the system. Missouri and Illinois approved the
granting of these powers.
The Judiciary Committee ordered H.J. Res. 78 favorably
reported, as amended, by voice vote on October 31, 1995, and
the report was filed on November 30, 1995 (H. Rept. 104-377).
The resolution, as amended, was passed by the House on March
12, 1996, by a vote of 405-0 and by the Senate on March 15,
1996. The President signed it into law as Public Law 104-125 on
April 1, 1996.
H.J. Res. 113, The Jennings Randolph Project
On June 27, 1996, the Subcommittee held a hearing on and
reported H.J. Res. 113 (Rep. Mollohan) granting the consent of
the Congress to an interstate compact adopted by Maryland and
West Virginia providing for joint natural resources management
and enforcement of laws relating to boating and natural
resources at the Jennings Randolph Lake Project situated in
Garrett County, Maryland and Mineral County, West Virginia. An
identical resolution had passed the Senate on September 20,
1995, as S.J. Res. 20.
The Jennings Randolph Lake Project, authorized by federal
law, was completed in 1982. The lake is approximately 6.6 miles
long and contains a surface area of 952 acres. It is located
astride the border between Maryland and West Virginia along the
North Branch of the Potomac River 230 miles upstream from the
Washington, D.C. area. While creation of the lake has had many
positive results relating to mine drainage, waste treatment and
recreation, it has obliterated the border between the two
states in that area. H.J. Res. 113 remedied this situation by
approving a compact between the two states under which they
recognized--together with the U.S. Army Corps of Engineers--
their joint responsibility for the management and enforcement
of laws and regulations relating to natural resources and
boating at the Project. In recognition of that joint
responsibility, the compact provided for the concurrent
jurisdiction of the signatories over the lands and waters in
the Project concerning natural resources and boating laws and
regulations, notwithstanding the pre-existing border.
The Judiciary Committee ordered H.J. Res. 113 favorably
reported on July 16, 1996, by a recorded vote of 25-0. The
Committee filed its report on July 24, 1996 (H.Rept. 104-706),
and the House approved H.J. Res. 113 on July 29, 1996, under
suspension of the rules by voice vote. The House thereupon
substituted S.J. Res. 20 in lieu of the House passed
resolution, and it was signed by the President on August 6,
1996, to become Public Law 104-176.
H.J. Res. 129, The Vermont-New Hampshire Interstate Public Water Supply
Compact
On February 29, 1996, the Subcommittee held a hearing and
reported favorably on H.J. Res. 129 (Rep. Sanders), granting
congressional consent to an interstate compact between New
Hampshire and Vermont enabling municipalities in one of the
States to enter into agreements with neighboring cross-border
municipalities in the other to erect and maintain joint public
water supply facilities. The compact was developed in response
to the situation which confronted Guildhall, Vermont and
Northumberland (commonly referred to as Groveton), New
Hampshire. Some residents of Guildhall have been receiving
water from a spring located in Northumberland for generations.
Although Guildhall owns the spring, the water is sent through
transmission lines owned by New Hampshire. The Surface Water
Treatment Rule issued pursuant to the Safe Water Act of 1986
(Public Law 99-330) required that water from the spring
(because it is surface water) be refiltered or that the water
system be converted to a groundwater system. Guildhall
determined that a groundwater system on its side of the border
was too expensive and it joined with Northumberland's plans for
an upgraded groundwater system. Guildhall reportedly owed
Northumberland $75,200 for its proportionate share of
developing the groundwater system and it planned to upgrade the
water transmission lines on the Vermont side of the border so
that village would have enough water for fire protection and
necessary infrastructure. However, Guildhall could not afford
to make payment to Northumberland or upgrade its transmission
lines without Federal assistance, and in order to be eligible
for the Federal assistance it sought, there had to be in effect
an interstate water compact. Witnesses before the Subcommittee
included: Representatives Charles F. Bass of New Hampshire and
Bernard Sanders of Vermont.
On March 12, 1996, the full Judiciary Committee ordered
H.J. Res. 129 favorably reported by voice vote. On March 18,
1996, the Committee filed H.Rept. 104-485 on the resolution--
and on March 19, 1996, the House passed it under suspension by
voice vote, thereupon substituting for it previously passed
Senate legislation (S.J. Res. 38) so that it could be presented
directly to the President for signature. The President signed
the legislation as Public Law 104-126 on April 1, 1996.
H.J. Res. 166, The Cities of Bristol Compact
On June 27, 1996, the Subcommittee held a hearing and
reported favorably on H.J. Res. 166 (Rep. Boucher) to grant
Congressional consent to an interstate compact between the
cities of Bristol, Virginia and Bristol, Tennessee providing
for a mutual aid agreement to pool their respective law
enforcement resources under specified circumstances. The state
boundary runs through a populous area of the two Bristols and
the governments of the respective cities had concluded that it
was to their mutual advantage to provide for shared response in
certain law enforcement and public safety situations. The
agreement was submitted in legislation for approval by the
Congress pursuant to statutes in both states which permit such
agreements between its local entities to be considered
interstate compacts subject to Congressional approval.
Witnesses at the hearing included: Representatives Rick Boucher
of Virginia and James H. Quillen of Tennessee.
The full Judiciary Committee ordered H.J. Res. 166
favorably reported on July 16, 1996 (H. Rept. 104-705). The
House passed the resolution under suspension of the rules by
voice vote on July 29, 1996, and the Senate concurred on July
31, 1996. The President signed H.J. Res. 166 on August 6, 1996,
as Public Law 104-81.
H.J. Res. 189, Granting the consent of Congress to the Interstate
Insurance Receivership Compact
The Subcommittee held a hearing on September 18, 1996, on
H.J. Res. 189 (Rep. Moorhead), which would grant the consent of
Congress to the Interstate Insurance Receivership Compact. The
witnesses were: Robert G. Lange, Director of the Nebraska State
Department of Insurance and Chairman of the Interstate
Insurance Receivership Compact Commission, and Leo W. Fraser,
Jr., a New Hampshire State Senator and immediate Past President
of the National Conference of Insurance Legislators.
The purpose of the compact is to facilitate orderly,
efficient, cost-effective and uniform insurance receivership
laws and operations. It establishes an Interstate Insurance
Receivership Commission with the power to promulgate rules
binding upon the compacting States, to oversee, supervise and
coordinate the activities of receivers, and to act itself as a
receiver. Receivership law currently differs in many ways among
the various States, including distribution priorities and the
right to object to a claim. Testimony at the hearing indicated
that the compact will overcome costly gaps and uneven treatment
of policyholders and other claimants of the insolvent multi-
state insurer and reduce disputes and litigation between
parties in different States. It will also facilitate the prompt
and full payment of legitimate insurance claims owed to policy
holders by the insolvent company.
To date, five states have adopted the compact, but Congress
has yet to consent to the proposed compact. The Subcommittee
took no further action with regard to H.J. Res. 189 prior to
the end of the 104th Congress.
H.J. Res. 193, Emergency Management Mutual Assistance Compact
On September 17, 1996, the Subcommittee held a hearing and
reported favorably on H.J. Res. 193 (Rep. Inglis) to grant
Congressional consent to a mutual assistance compact--which has
already been agreed to by thirteen states--designed to help
manage duly declared disasters, including use of the National
Guard. The compact also provides for mutual cooperation in
training exercises preparatory to responding to such disasters.
The compact is based upon the recognition that many
disasters that befall states are regional in nature, such as
hurricanes, and they often overtax an individual state's
ability to respond. The ability to collectively manage such
situations promotes effective response and fosters the public
good. The compact clarifies who would be liable in the event of
an accident involving out-of-state personnel involved in
disaster assistance and established common procedures for the
dispatching of assistance and the subsequent reimbursement for
it. The compact requires member states to devise strategies for
the speedy dispatching of assistance in the event of disasters
in order to promote cooperation and collective planning. It
originated as a regional initiative promoted by the Southern
Governors' Association in 1992 but since has been endorsed by
other regional Governors' Associations and was entered into by
its first non-southern state (South Dakota) in 1996.
Witnesses at the hearing included: John P. Carey, General
Counsel of the Federal Emergency Management Agency (FEMA); Eric
L. Tolbert, Chief, State of Florida, Department of Community
Affairs, Division of Emergency Management, Bureau of
Preparedness and Response; Tom Feuerborn, Director, Oklahoma
Department of Civil Emergency Management; and David McMillion,
Director, State of Maryland, Emergency Management Agency.
On September 24, 1996, the Judiciary Committee was
discharged from further consideration of H.J. Res. 193 and the
House passed it under suspension of the rules by voice vote. It
passed the Senate on October 3, 1996, and was signed by the
President on October 19, 1996, to become Public Law 104-321.
H.J. Res. 194, The Washington Area Metropolitan Transit Regulation
Compact
On September 18, 1996, the Subcommittee held a hearing on
and reported H.J. Res 194 (Rep. Davis), granting consent of
Congress to certain amendments to the Washington Metropolitan
Area Transit Regulation Compact. H.J. Res 194 contained several
amendments intended to improve a compact among the Washington,
D.C. Metropolitan area jurisdictions aimed at fostering
regional mass transportation. Principally included were
amendments that: added Loudon County, Virginia to the formal
Transit Zone; recognized the granting of home rule to the
District of Columbia, subsequent to the creation of the
compact; clarified that the Council of the District of Columbia
has the sole power to appoint its members to the WMATA Board of
Directors; and rewrote the provisions of the Compact regarding
procurement in order to simplify the choice of competitive
bidding procedures by authorizing either sealed bids or
competitive proposals. Witnesses at the hearing were:
Representative Thomas M. Davis; and Robert Polk, General
Counsel, Washington Metropolitan Area Transit Authority.
On September 24, 1996, the Judiciary Committee was
discharged from further consideration of H.J. Res. 194 and the
House passed the resolution by voice vote under suspension of
the rules with a technical amendment. The Senate passed H.J.
Res. 194 on October 3, 1996, and the President signed it on
October 19, 1996, to become Public Law 104-322.
Oversight Activities
administrative law, practice and procedures
Administrative Conference of the United States
The mission of ACUS has been to oversee administrative
procedures governing regulatory, benefit, licensing and other
government programs and to recommend improvements and reforms.
It has advised the President and Federal departments and
agencies on ways to enhance the fairness and efficiency of
administrative procedures; counseled the Judicial Conference of
the United States on the relationship between agency action and
subsequent judicial review; and provided nonpartisan advice to
the Congress on agency administrative procedure. It has acted
as a clearinghouse through which experts in administrative law
have combined their expertise, disseminated information,
conducted research, and issued reports on various aspects of
the administrative process.
On May 11, 1995, the Subcommittee on Commercial and
Administrative Law held an oversight hearing on the
Administrative Conference of the United States (ACUS) (Serial
No. 6). The hearing witnesses were: Thomasina V. Rogers, the
Chairman of ACUS; C. Boyden Gray, member of the ACUS Council
and former White House Counsel to President Bush; Richard E.
Wiley, ACUS Senior Fellow and former Chairman of the Federal
Communications Commission; and two Public Members of ACUS, Dean
Peter M. Shane of the University of Pittsburgh Law School and
David C. Vladeck, Director of the Public Citizen Litigation
Group. Without exception they praised the performance of ACUS
and supported its reauthorization.
See: Legislation--Administrative Law, Practice and
Procedure--H.R. 2291, To Extend the Administrative Conference
of the United States.
Performance of the Social Security Administration's Office of Hearings
and Appeals in Mobile, Alabama
In an exercise of its jurisdiction over the Administrative
Procedure Act (5 U.S.C. 551 et seq.), the Subcommittee held a
hearing on June 5, 1996, regarding the performance of the
Social Security Administration Office of Hearings and Appeals
in Mobile, Alabama (Serial No. 71). This hearing was requested
by Representative Sonny Callahan, whose district includes
Mobile. Representative Callahan asserted that there was an
unwarranted backlog of disability claims in the Mobile SSA
office because of inefficient and improper case management by
the administrative law judges. Statistics presented to the
Subcommittee demonstrated that in recent years the Mobile
hearings office has ranked well below the regional average for
disability case dispositions. Testimony at the Subcommittee
hearing indicated that there has been recent improvement and
reform in the operations of that office.
The Subcommittee heard testimony from: Representative
Callahan and John H. Burge, a disabled constituent with case
experience with the Mobile SSA office; Chief SSA Administrative
Law Judge Charles R. Boyer; Atlanta Regional Chief SSA
Administrative Law Judge Henry G. Watkins; SSA Administrative
Law Judges Frank M. De Bellis and Robert S. Habermann, both
previous Chief ALJs in the Mobile office; and SSA
Administrative Law Judge Melford Cleveland of Montgomery,
Alabama, President of the Association of Administrative Law
Judges.
the legal services corporation
On June 26, 1996, the Subcommittee held an oversight
hearing on the Legal Services Corporation (LSC). The LSC is a
private, not for profit, entity created through enactment of
the Legal Services Corporation Act of 1974 (P.L. 93-355) and
designed to provide legal assistance to the poor in non-
criminal proceedings. When the 104th Congress convened, it was
intent on cutting the deficit, and in May of 1995 passed a
budget resolution which, among other things, endorsed a phased
elimination of funding for the LSC. Consequently, the budget
agreement for FY 1996, which was signed into law by President
Clinton in April of 1996, included a spending level of $278
million for LSC; a cut of $122 million for the program.
Additionally, the appropriations legislation which funded the
Corporation, imposed several restrictions on the types of cases
LSC grantees could pursue. The purpose of the oversight hearing
was to determine the effects of the budget cuts and the new
restrictions on grantee activities.
Witnesses who testified at the hearing included: Professor
Charles E. Rounds, Jr., Suffolk University Law School; Ken
Boehm, Chairman, National Legal and Policy Center; Jack Londen;
Allyson Tucker, Executive Director, Individual Rights
Foundation; Chris Searer; Robert E. Adams, Former Executive
Director, Legal Services of the Fourth Judicial District; John
D. Robb; and Sallie Colaco. At this hearing, the Subcommittee
learned that several LSC grantees were dividing their employees
into two separate entities in order to avoid the necessity of
complying with the new congressional restrictions and yet
continue to receive federal funding as a grantee of the
Corporation.
negotiated rulemaking
On June 27, 1996, the Subcommittee held an oversight
hearing on reauthorization of the Negotiated Rulemaking Act (5
U.S.C. 581-590) (Serial No. 77). The Act, which was signed by
President George W. Bush on November 29, 1990 as Public Law
101-648, was scheduled to expire on November 30, 1996.
Otherwise known as ``Reg-Neg'', the Act was designed to
encourage agencies to cooperate with the private sector to
improve rulemaking by coming together in an effort to draft a
proposed rule that takes into account the needs of the various
interests, as well as the requirements of the underlying
statute. The Act provides for the creation of a regulatory
negotiation committee to draft a proposed rule. Even if the
committee is unsuccessful in reaching a consensus, the agency
learns about the views and problems of the parties which
hopefully gives it a better understanding of the effect a rule
will have on the public. If consensus is achieved, the proposed
rule is published by the agency and is still subject to the
notice and comment provisions of the Administrative Procedure
Act. However, the rule that is promulgated hopefully will have
been based on a more thorough consideration of problems that
might otherwise have occasioned negative reaction during the
notice and comment period.
The testimony received by the Subcommittee was uniformly
positive, as every witness supported reauthorization of the Act
based upon positive experience with it. They indicated that
rules that had been developed through the reg-neg process often
proved superior to those drafted by an agency itself.
Representatives from agencies indicated that use of reg-neg has
often meant that a rule will less likely be subject to legal
challenges and sometimes areas so contentious as to defy
successful rulemaking became areas of consensus when interested
parties were allowed to contribute to the outcome. The
witnesses were: Philip Harter, Chair, Section of Administrative
Law and Regulatory Practice, American Bar Association; Eric
Waterman, National Erectors Association; Joseph A. Dear,
Assistant Secretary, Occupational Safety & Health
Administration; Wilma Liebman, Deputy Director, Federal
Mediation & Conciliation Service; and Neil B. Eisner, Assistant
General Counsel for Regulation and Enforcement, Department of
Transportation.
The Senate had included reauthorization of the Negotiated
Rulemaking Act as a part of S. 1224 and this was included in
the legislation passed by the House as H.R. 4194.
Regulatory Reform
See: Legislation--Regulatory Reform--H.R. 9, the ``Job
Creation and Wage Enhancement Act of 1995,'' and H.R. 926, the
``Regulatory Reform and Relief Act.''
Hearings: Two days of oversight hearings were held during
the 104th Congress: February 3 and 6, 1995, entitled ``Job
Creation and Wage Enhancement Act of 1995'' (Serial No. 3).
Local Taxation of Wireless Cable
On July 25, 1996, the Subcommittee held an oversight
hearing on the issue of whether the Congress should adopt
legislation that would exempt from local taxation wireless
service providers who transmit satellite-delivered video
programming (Serial No. 76). The hearing came in response to
questions that were raised during House consideration of the
Telecommunications Act of 1996. Section 602 of that law,
enacted during the 104th Congress, provided an exemption from
taxation by ``any local taxing jurisdiction'' for providers of
``direct-to-home'' satellite service. The statement of managers
accompanying the Conference Report to the Act based the
exemption on the fact that direct-to-home (DTH) satellite
service is ``programming delivered via satellite directly to
subscribers equipped with satellite receivers at their premises
. . . and does not require the use of public rights-of-way or
the physical facilities or services of a community.'' There was
thus an insufficient basis supporting local taxation of a
service being supplied in interstate commerce.
During consideration of the Telecommunications Act, the
question arose as to whether the DTH exemption should include
wireless cable providers. Wireless cable transmits programming
received at a central facility directly across the air-waves to
subscribers without the use of wires. During the Subcommittee's
hearing, representatives of the wireless cable industry argued
that there is no qualitative difference between their service
and DTH satellite service, neither of which, they asserted,
uses public rights-of-way. They reiterated the arguments made
by DTH representatives against exposure to local taxation, and
went on to emphasize that since DTH was exempted by the
Telecommunications Act from local taxation so also should
wireless cable be exempted. To do otherwise, they indicated,
would place them at a competitive disadvantage. A witness
representing local taxing authorities argued against extending
an exemption to wireless cable on the ground that it would
place undue burdens on those who must provide local municipal
services by depriving them of a legitimate source of revenue.
Witnesses at the hearing included: Frank Shafroth, Director
of Policy & Federal Relations, National League of Cities; Shant
S. Hovnanian, Chief Executive Officer, Cellular Vision, U.S.A.;
Dr. Michael R. Kelley, Capitol Connection, George Mason
University; Theodore Steinke, Chairman, National Instructional
Television, Fixed Service Association, The University of
Wisconsin-Milwaukee; and Richard A. Alston, President, Wireless
Cable Association.
The Subcommittee took no further action on the issue.
U.S. Trustees
On July 26, 1996, the Subcommittee held an oversight
hearing on the United States Trustee (UST) program. United
States Trustees, appointed by the Attorney General, supervise
private bankruptcy trustees and the administration of cases
filed under Chapters 7, 11, 12 and 13 of the Bankruptcy Code.
The UST program was established initially on a pilot basis
(in 18 of the 94 federal judicial districts) pursuant to the
Bankruptcy Reform Act of 1978, Public Law 95-598, as part of a
major restructuring of the bankruptcy system. Prior to that
time, judicial, supervisory, and administrative functions in
bankruptcy cases were all performed by the presiding judge. In
pilot districts, the new separation of functions was
implemented by shifting supervisory and administrative
responsibilities to the Department of Justice. This enabled the
bankruptcy courts to concentrate on their judicial tasks and
responded to significant concerns regarding the integrity of
the bankruptcy system.
The Bankruptcy Judges, United States Trustees, and Family
Farmer Bankruptcy Act of 1986, Public Law 99-554, authorized a
nationwide U.S. Trustee program (with provision for delayed
implementation in two states). This replaced the pilot program
that had been operating in selected districts.
The oversight and monitoring of private bankruptcy trustees
by the UST is one of several areas within the Department of
Justice designated as ``high risk.'' The private trustee system
is particularly vulnerable to fraud because of the large number
of trustees, collectively administering tens of billions of
dollars in estate funds, and the limited resources available to
conduct and thoroughly follow up on trustee audits and reports.
Fraudulent activities of trustees may include the embezzlement
of estate funds, the theft and/or sale of estate assets by
trustees to insiders, and illegal fee arrangements.
It is now generally acknowledged that the UST program has
enhanced the integrity of the bankruptcy system and improved
case administration by imposing more stringent standards of
accountability on private trustees. Steps taken have included
more rigorous selection of trustees, standardized reporting
requirements, training United States Trustees in their
supervisory role, more comprehensive audits, and the
overarching demand that private trustees rigorously adhere to
fiduciary standards.
Testimony was received at the oversight hearing from:
Joseph Patchan, Director of the Executive Office for U.S.
Trustees; two regional U.S. Trustees, M. Scott Michel of
Chicago and Clarkson McDow of Columbia, S.C.; Henry E.
Hildebrand III, Legislative Chairman of the National
Association of Chapter 13 Trustees; Lawrence P. Morin,
President of the Association of Bankruptcy Professionals;
Jeffrey Freedman, Vice President of the National Association of
Consumer Bankruptcy Attorneys, David Ray, member of the board
of the National Association of Bankruptcy Trustees; Bankruptcy
Judge William Bodoh, representing the American Bankruptcy
Institute; Jean FitzSimon, Chair of the Subcommittee on
Bankruptcy Administration and U.S. Trustees of the American Bar
Association; Professor Frank Kennedy of the University of
Michigan Law School, representing the National Bankruptcy
Conference; and Harry W. Greenfield, representing the
Commercial Law League of America.
Testimony at the Subcommittee hearing focused on
allegations of U.S. Trustee micromanagement, judicial review of
trustee expenses and removals, and the proposed rules
promulgated by the Executive Office for U.S. Trustees relating
to qualifications and standards of conduct for standing
trustees.
Subcommittee on the Constitution
CHARLES T. CANADY, Florida,
Chairman
BARNEY FRANK, Massachusetts HENRY J. HYDE, Illinois
MELVIN L. WATT, North Carolina BOB INGLIS, South Carolina
JOSE E. SERRANO, New York 1 MICHAEL PATRICK FLANAGAN, Illinois
JOHN CONYERS, Jr., Michigan F. JAMES SENSENBRENNER, Jr.
PATRICIA SCHROEDER, Colorado Wisconsin
MAXINE WATERS, California 2 MARTIN R. HOKE, Ohio
LAMAR SMITH, Texas
BOB GOODLATTE, Virginia
----------
1 Jose E. Serrano, New York, resigned from the Committee effective
March 14, 1996.
2 Maxine Waters, California, elected to the Committee pursuant to
House Resolution 414 (approved by the House on April 25, 1996). Ms.
Waters was assigned to the Constitution Subcommittee effective June 11,
1996.
Tabulation and disposition of bills referred to the Subcommittee
Legislation referred to Subcommittee.............................. 162
Legislation reported favorably to full Committee.................. 12
Legislation referred adversely to full Committee.................. 0
Legislation reported without recommendation to full Committee..... 0
Legislation reported as original measure to the full Committee.... 0
Legislation discharged from the Subcommittee...................... 2
Legislation pending before the full Committee..................... 2
Legislation reported to the House................................. 10
Legislation discharged from the full Committee.................... 2
Legislation pending in the House.................................. 2
Legislation passed the House...................................... 9
Legislation pending in the Senate................................. 1
Legislation failed passage by the House........................... 1
Legislation vetoed by the President (not overridden).............. 1
Legislation enacted into public law............................... 6
Legislation on which hearings were held........................... 10
Days of hearings (legislative and oversight)...................... 34
Jurisdiction of the Subcommittee
The Subcommittee has legislative and oversight
responsibility for the Civil Rights Division, Environment and
Natural Resources Division and the Community Relations Service
of the Department of Justice, as well as the U.S. Commission on
Civil Rights and the Office of Government Ethics. General
legislative and oversight jurisdiction of the Subcommittee
includes civil and constitutional rights, civil liberties and
personal privacy, federal regulation of lobbying, private
property rights, federal ethics laws, and proposed
constitutional amendments.
Legislation
Private Property Rights
On February 10, 1995, the Subcommittee held a hearing on
``Protecting Private Property from Regulatory Takings.''
Witnesses testifying were the Honorable John Schmidt, Associate
Attorney General, Department of Justice; James Ely, Jr.,
Professor of Law and History, Vanderbilt University School of
Law; J. Peter Byrne, Professor of Law, Georgetown University
Law Center; Nancy Cline, a concerned property owner; Rev. Joan
Campbell, General Secretary, National Council of Churches in
the U.S.A.; Roger Pilon, Ph.D., J.D., Senior Fellow and
Director, Center for Constitutional Studies, Cato Institute;
Roger J. Marzulla, Chairman, Board of Directors, Defenders of
Property Rights; Honorable Alletta Belin, Assistant Attorney
General, State of New Mexico; Honorable Richard L. Russman, New
Hampshire State Senate, on behalf of the National Conference of
State Legislatures; Jonathan Adler, Associate Director of
Environmental Studies, Competitive Enterprise Institute.
On February 16, 1995, the full Committee ordered favorably
reported H.R. 925, the Private Property Protection Act, a bill
to require the federal government to compensate owners of
private property for the effect of certain regulatory
restrictions on the property, with amendments by a voice vote.
H. Rept. 104-46. H.R. 925 passed the House with additional
floor amendments on March 3, 1995 by a vote of 277-148.
Fair Housing
H.R. 660, the ``Housing for Older Persons Act'' amended the
Fair Housing Act to exempt certain seniors only housing from
prohibitions on discrimination based on familial status. The
provisions in H.R. 660 were part of the Republican ``Contract
with America.'' The Subcommittee ordered H.R. 660 reported on
March 15, 1995 by a voice vote. The measure was ordered
favorably reported with an amendment by a vote of 26 to 6 on
March 22, 1995. H. Rept. 104-91. The House passed H.R. 660 on
April 6, 1995 by a vote of 424-5. The Senate passed H.R. 660 on
December 6, 1995 by a vote of 94-3 and the bill was signed into
law by the President on December 28, 1995. Public Law 104-76.
On September 5, 1996, the Subcommittee held a hearing on
H.R. 2927, and H.R. 4019 and related issues to examine concerns
over recent federal agency actions and court decisions
involving the interpretation of the Fair Housing Act Amendments
of 1988. H.R. 2927, a bill to amend the Fair Housing Act
regarding local and State laws and regulations governing
residential care facilities, was introduced by Rep. Brian
Bilbray (R-CA). H.R. 4019, the Fair Housing Reform and Freedom
of Speech Act of 1996, a bill to amend the Fair Housing Act,
and for other purposes, was also introduced by Rep. Brian
Bilbray. Some of these actions and decisions had been
criticized as failing to carefully balance the need to protect
against discrimination in housing with the ability of local
jurisdictions to enact reasonable zoning restrictions and the
rights of individuals in communities to have a voice in the
process by which site decisions are made. The hearing was
conducted pursuant to the Subcommittee plan set forth at the
beginning of the 104th Congress.
Racial and Gender Preferences--The Equal Opportunity Act
During the 104th Congress, the Subcommittee on the
Constitution held a total of four hearings (not including the
Adarand oversight hearings) on the topic of racial and gender
preference programs. On April 3, 1995, the Subcommittee held a
hearing in Washington, D.C. on ``Group Preferences and the
Law.'' The witnesses at that hearing were Hugh Davis Graham,
Professor of History, Vanderbilt University; Mary Frances
Berry, Chair, U.S. Commission on Civil Rights, and Professor,
University of Pennsylvania; Linda Chavez, President and John M.
Olin Fellow, Center for Equal Opportunity, Washington, D.C.;
William Taylor, attorney and Vice-Chairman, Leadership
Conference on Civil Rights; Glynn Custred, Professor of
Anthropology, California State University-Hayward and coauthor
of the California Civil Rights Initiative; Anne Bryant,
President, American Association of University Women; Laura
Ingraham, an attorney and member of the Independent Women's
Forum; Nancy Archuleta, Chairman and CEO, Mevatec Corp; and
Joseph Broadus, Professor, George Mason University School of
Law.
The Subcommittee held a field hearing in San Diego,
California on June 1, 1995, on ``Group Preferences and the
Law.'' The witnesses at that hearing were Representatives Brian
Bilbray (R-CA) and Edward Royce (R-CA); Larry Alexander,
Professor, University of San Diego Law School; Sister Sally
Furay, Vice-President and Provost, University of San Diego; Lee
Cheng, law student, University of California at Berkeley;
Harold Brown, Associate Dean, College of Business
Administration, San Diego State University; Arthur L. Bierer,
student, University of California at San Diego; Joe Martinez,
President, Martinez, Cutri & McArdle; and Ezola Foster,
President, Americans for Family Values.
On October 25, 1995, the Subcommittee held a hearing in
Washington, D.C. on ``The Economic and Social Impact of Race
and Gender Preference Programs.'' Witnesses at this hearing
were James Kuklinski, Professor, Department of Political
Science and Institute of Government and Public Affairs,
University of Illinois; William Coleman, O'Melveny & Meyers;
Will Marshall, Founder and President, Progressive Policy
Institute; John Lunn, Professor of Economics, Hope College;
Jonathan Leonard, Professor of Economics, University of
California at Berkeley; and Dr. Farrell Block, labor economist
and consultant.
The ``Equal Opportunity Act of 1995'' was introduced in
both the House of Representatives (H.R. 2128) and the Senate
(S. 1085) on July 27, 1995. Subcommittee Chairman Charles T.
Canady was the lead sponsor of this legislation in the House.
To summarize, H.R. 2128 would prohibit the federal government
from discriminating against or granting any preferences to any
person or group based in whole or in part on race, color,
ethnicity, or sex in federal employment or contracting or the
administration of any federal program.
The ``Equal Opportunity Act of 1995'' was the subject of a
Subcommittee hearing on December 7, 1995. The witnesses at this
hearing were Representatives Susan Molinari (R-NY) and Sheila
Jackson Lee (D-TX); Carl Cohen, Professor of Philosophy,
University of Michigan; John Payton, Wilmer, Cutler &
Pickering; Clint Bolick, Vice-President and Director of
Litigation, Institute for Justice; Marcia D. Greenberger, Co-
President, National Women's Law Center; Glenn C. Loury,
Professor of Economics, Boston University; Honorable Deval L.
Patrick, Assistant Attorney General, Civil Rights Division,
Department of Justice; Kingsley R. Browne, Associate Professor,
Wayne State University Law School; Frank H. Wu, Assistant
Professor, Howard University School of Law; Andrew Kull,
Professor, Emory University School of Law; Jorge Amselle,
Communications Director, Center for Equal Opportunity; Barbara
Herman, Board Member, National Council of Jewish Women; Luis
Pelayo, Executive Director, Hispanic Council; Arthur Baer,
Associate Counsel, Puerto Rican Legal Defense and Education
Fund.
On March 7, 1996, the Subcommittee met in open session and
ordered H.R. 2128 favorably reported, without amendment, by a
vote of 8-5. No further legislative activity occurred regarding
H.R. 2128 during the 104th Congress.
Reform of Laws Governing Lobbying
On May 23, 1995, the Subcommittee held the first of three
hearings on the issue of reform of the laws governing lobbying.
The witnesses were Representative John Bryant (D-TX);
Representative Robert Dornan (R-CA); Representative Paul McHale
(D-PA); Representative Martin T. Meehan (D-MA); Representative
Christopher Shays (R-FL); Representative James Traficant, Jr.
(D-OH); Representative Fred Upton (R-MI); Representative Frank
Wolf (R-VA); Representative Dick Zimmer (R-NJ); James Christy,
Vice-President of Government Relations, TRW, Inc., on behalf of
the National Association of Manufacturers; David Keene,
Chairman, American Conservative Union; Edythe Ledbetter, Vice-
President for Administration, Center for Marine Conservation;
Robert Schiff, staff attorney, Public Citizen's Congress Watch;
Thomas Susman, Chair, Professional Ethics and Standards
Committee, American League of Lobbyists.
On September 7, 1995, the Subcommittee held its second day
of hearings on lobbying reform. The witnesses were
Representative Christopher Shays (R-FL); Representative Paul
McHale (D-PA); Representative Michael Castle (R-DE);
Representative Scott Klug (R-WI); Representative John Bryant
(D-TX); Senator Carl Levin (D-MI); Timothy Jenkins, Partner,
O'Connor & Hannan, L.L.P.; Deborah Lewis, Legislative Counsel,
the Alliance for Justice; Jeffrey H. Joseph, Vice President of
Domestic Policy, U.S. Chamber of Commerce; Susan Bitter Smith,
Chair-elect, American Society of Association Executives; Ann
McBride, President, Common Cause; and David Mason, Vice
President of Government Relations, The Heritage Foundation.
On November 2, 1995, the Subcommittee favorably reported to
the full Committee the bill H.R. 2564, a bill identical to S.
1060, the Senate-passed Lobbying Disclosure Act of 1995 by a
voice vote. On November 8, 1995, the full Committee favorably
reported the bill without amendment to the full House by a vote
of 30-0. H. Rept. 104-339, part 1. The bill passed the House on
November 29, 1995 by a vote of 421-0. The text of H.R. 2564 was
passed as S. 1060 and was signed by the President on December
19, 1995, as Public Law 104-65.
On March 22, 1996, the Subcommittee held its third day of
hearings on the issue of reform of the laws governing lobbying
in conjunction with issues related to the status of the
honoraria ban. The witnesses were Representative Michael
Patrick Flanagan (R-IL); Representative Phil English (R-PA);
Representative Peter DeFazio (D-OR); Representative Jon D. Fox
(R-PA); Representative Marcy Kaptur (D-OH); Representative
James A. Traficant, Jr. (D-OH); Representative Fred Upton (R-
MI); Representative Dick Zimmer (R-NJ); Brent Thompson,
Executive Director, Fair Government Foundation; Donald J.
Simon, Counsel, Common Cause; Robert M. Tobias, National
President, National Treasury Employees Union.
On June 21, 1995, the Subcommittee favorably reported H.R.
782, with an amendment in the nature of a substitute by a voice
vote. The bill, the Federal Employee Representation Improvement
Act of 1995, protects the rights of Federal employees as
representatives of their employee organizations to communicate
with Federal departments and agencies in appropriate
circumstances. The bill had been the subject of a Subcommittee
hearing on May 23, 1995. On July 12, 1995, the full Committee
ordered the bill favorably reported by a voice vote. H. Rept.
104-230. The bill passed the House on October 24, 1995. The
Senate passed H.R. 782 with an amendment on July 25, 1996, with
the House concurring in the Senate amendment on August 1. The
bill was signed by the President on August 6, 1996, as Public
Law 104-177.
On May 30, 1995, the Subcommittee favorably reported H.R.
3435, with an amendment in the nature of a substitute by a
voice vote. The bill, the Lobbying Disclosure Technical
Amendments Act of 1996, provided for technical corrections to
the Lobbying Disclosure Act. On July 16, 1996, the full
Committee ordered the bill favorably reported, as an amendment
in the nature of a substitute, by a vote of 25-0. H. Rept. 104-
699. The bill passed the House on July 29, 1996 under
suspension of the rules, receiving the two-thirds required
vote. The Senate took no action on the bill.
Also on May 30, the Subcommittee favorably reported H.R.
3434, with an amendment in the nature of a substitute by a
voice vote. The bill, the Revolving Door Act of 1996, placed
additional post-employment restrictions on former Members of
Congress and employees of the legislative and executive
branches. The bill had been one of the subjects of the
Subcommittee hearing conducted on March 22, 1996.
Religious Freedom
The Subcommittee held a number of hearings on the issue of
school prayer and adverse treatment of individuals in public
institutions because of their religious affiliation or their
efforts to exercise their right to freely exercise their
religion. The Subcommittee held a hearing on the issue of
``Religious Liberty and the Bill of Rights'' in Washington,
D.C. on June 8, 1995. The witnesses at this hearing were
Representative Ernest Istook, Jr. (R-OK); William Ball, of
Counsel, Ball, Skelly, Murren & Connell; Dr. Derek Davis,
Director, J.M. Dawson Institute of Church-State Studies; Norman
Redlich, Attorney, Wachtell, Lipton, Rosen & Katz; Michael
Stokes Paulsen, Professor, University of Minnesota Law School;
and Michael McConnell, Wm. B. Graham Professor of Law,
University of Chicago Law School.
The Subcommittee then held a number of field hearings
across the country: June 10, 1995, Harrisonburg, VA; June 23,
1995, Tampa, Florida; July 10, 1995, New York City; and July
14, 1995, Oklahoma City, Oklahoma. At each of these hearings
the Subcommittee heard from clergy, local political leaders,
students, and academics.
On July 23, 1996, the Subcommittee held a hearing on
``Legislation To Further Protect Religious Freedom,'' with
particular focus on H.J. Res. 184, a proposed constitutional
amendment to further protect religious freedom, introduced by
Representative Richard Armey (R-TX), the Majority Leader. The
witnesses at this hearing were Representative Ernest Istook,
Jr. (R-OK); Jay Alan Sekulow, Chief Counsel, American Center
For Law and Justice; Gregory Baylor, Assistant Director, Center
for Law and Religious Freedom, Christian Legal Society; Dr.
Richard Land, President, Christian Life Commission, Southern
Baptist Convention; Dr. William Donohue, President, Catholic
League for Religious and Civil Rights; Carl H. Esbeck, Isabell
Wade & Paul C. Lyda Professor of Law, University of Missouri;
Brother Bob Smith, Principal, Messmer High School in Milwaukee,
Wisconsin; Anna Doyle accompanied by her daughters Katie and
Rebecca Doyle; Forest Montgomery, Counsel for the Office of
Governmental Affairs, National Association of Evangelicals;
Reverend Louis Sheldon, Chairman, Traditional Values Coalition;
Craig Parshall, Attorney, Concerned Women of America; Dr. Anne
Bryant, Executive Director, National School Boards Association;
Reverend Elenora Giddings Ivory, Director, Washington, D.C.
office of Presbyterian Church USA; Reverend Oliver S. Thomas,
Special Counsel, National Council of Churches; Rabbi James
Rudin, Director of Interreligious Affairs, American Jewish
Committee; Carole Shields, President, People for the American
Way; Reverend Barry Lynn, Executive Director, Americans United
for Separation of Church and State.
Partial-Birth Abortion Ban Act
The Subcommittee held two hearings on partial-birth
abortion. The first hearing was held on June 15, 1995. The
witness who testified were Pamela Smith, M.D., Director of
Medical Education, Department of Obstetrics and Gynecology, Mt.
Sinai Hospital in Chicago; J. Courtland Robinson, M.D.,
Associate Professor, Department of Gynecology and Obstetrics,
Johns Hopkins University; Robert J. White, M.D., Professor of
Surgery, Case Western Reserve University in Ohio; Tammy Watts;
Mary Ellen Morton, R.N., Neonatal Specialist and Flight Nurse;
and David Smolin, Professor of Law, Cumberland Law School,
Samford University. The second hearing was held on March 21,
1996, to examine the ``Effects of Anesthesia During a Partial-
Birth Abortion.'' Witnesses testifying were the Representative
Tom Coburn, M.D. (R-OK); Norig Ellison, M.D., President of the
American Society of Anesthesiologists; David J. Birnbach, M.D.,
President of the American Society for Obstetric Anesthesia and
Perinatology; David H. Chestnut, M.D., Chairman, Department of
Anesthesiology, University of Alabama at Birmingham; Jean A.
Wright, M.D., Medical Director, Egleston Children's Hospital,
Emory University; Brenda Pratt Shafer, R.N.; Coreen Costello;
Mary-Dorothy Line; and Helen M. Alvare, Esq., Director of
Planning and Information for Pro-Life Activities, National
Conference of Catholic Bishops.
On June 21, 1995, the Subcommittee favorably reported H.R.
1833, the Partial-Birth Abortion Ban Act, a bill to ban ``an
abortion in which the person performing the abortion partially
vaginally delivers a living fetus before killing the fetus and
completing the delivery,'' by a vote of 7-5. On July 18, 1995
the full Committee ordered H.R. 1833 favorably reported with
amendments by a vote of 20-12. H. Rept. 104-267. H.R. 1833
passed the House on November 1, 1995 by a vote of 288-139, and
passed the Senate on December 7, 1995, with amendments by a
vote of 54-44. The House passed the Senate amended version of
H.R. 1833 on March 27, 1996 by a vote of 286-129. The President
vetoed H.R. 1833 on April 10, 1996. On September 19, 1996, the
House voted to override the President's veto of H.R. 1833 by a
vote of 285-137. On September 26, 1996, however, the Senate
failed (by a vote of 57 yeas to 41 nays, less than the two-
thirds required) to pass the measure and override the
President's veto.
Parental Rights and Responsibilities Act
On October 26, 1995, the Subcommittee held a hearing to
examine the ``Parental Rights and Responsibilities Act of
1995'' (H.R. 1946), a bill to clarify the fundamental right of
parents to direct the upbringing of their children. The
following witnesses testified: Representative Steve Largent (R-
OK); Representative Mike Parker (R-MS); Senator Charles
Grassley (R-IA); Vicki Rafel, member of the Health and Welfare
Commission, National PTA Board of Directors; Greg Erken,
Executive Director, Of the People; Martin Guggenheim,
Professor, NYU School of Law; Colleen Pinyan, Coordinator,
Office of Public Affairs, The Rutherford Institute; Marilyn Van
Derbur, former Miss America; Michael P. Farris, Esq.,
President, Home School Legal Defense Association; George W.
Dent, Professor, Case Western Reserve University School of Law;
Barbara Bennett Woodhouse, Professor, University of
Pennsylvania School of Law; Wade F. Horn, Ph.D., Director,
National Fatherhood Initiative. No further action was taken on
the measure.
Office of Government Ethics
On April 17, 1996, the Subcommittee favorably reported H.R.
3235 without amendment by a voice vote. The bill, the Office of
Government Ethics Authorization Act of 1996, amended the Ethics
in Government Act of 1978 to extend the authorization of
appropriations for the Office of Government Ethics for 3 years
and provided the agency with gift acceptance authority. The
bill had been the subject of a Subcommittee hearing on May 17,
1995. On April 24, 1996, the full Committee favorably reported
the bill without amendment by a voice vote. H. Rept. 104-595.
The bill passed the House on June 4, 1996 under a suspension of
the rules, receiving the two-thirds vote necessary for passage.
H.R. 3235 was passed by the Senate on July 24, 1996 and signed
by the President on August 6, 1996 as Public Law 104-179.
Bilingual Voting Requirements
On April 18, 1996, the Subcommittee held one day of
hearings on H.R. 351, a bill to repeal the bilingual voting
requirements that were added to the Voting Rights Act in 1975.
The witnesses were Representative John Edward Porter (R-IL);
Representative Bob Livingston (R-LA); Representative Xavier
Becerra (D-CA); Representative Nydia Velazquez (D-NY);
Representative Peter King (R-NY); Dr. John Silber, President,
Boston University; Karen Narasaki, Executive Director, National
Asian Pacific American Legal Consortium; Ronald Rotunda, the
Albert E. Jenner, Jr. Professor of Law, University of Illinois;
Honorable Deval Patrick, Asst. Attorney General for Civil
Rights, Department of Justice; Linda Chavez, President, Center
for Equal Opportunity; Antonia Hernandez, President and General
Counsel, Mexican American Legal Defense & Education Fund;
Frances Fairey, County Clerk and Recorder, Yuba County,
California. The hearing was conducted pursuant to the
Subcommittee plan set forth at the beginning of the 104th
Congress.
On May 23, 1996, the Subcommittee favorably reported H.R.
351, with an amendment in the nature of a substitute by a vote
of 5-2. On July 16, 1996, the full Committee ordered the bill
favorably reported with an amendment in the nature of a
substitute by a vote of 17-12. H. Rept. 104-728. The bill was
subsequently incorporated in H.R. 123, the English Language
Empowerment Act of 1996, and was passed by the House on August
1, 1996 by a vote 259-169. The Senate took no action on the
bill.
U.S. Commission on Civil Rights
The United States Commission on Civil Rights is designed to
serve as an independent, bipartisan, fact-finding agency of the
executive branch. The Commission was first established as a
temporary agency under the Civil Rights Act of 1957. The
authorization for the U.S. Commission on Civil Rights expired
on September 30, 1996. On October 19, 1995, the Subcommittee
held an oversight hearing on the Commission to investigate
disturbing allegations of abuse and mismanagement, and pursuant
to the Oversight Plan approved by the Full Committee on
February 7, 1995, to examine the priorities, structure, mission
and authorization request of the Commission. The witnesses at
this hearing were Representative Mark Foley (R-FL);
Representative Louise Slaughter (D-NY); Representative Clay
Shaw (R-FL); Representative Dana Rohrabacher (R-CA); Mary
Mathews, Staff Director, U.S. Commission on Civil Rights;
Stephanie Moore, Deputy General Counsel, U.S. Commission on
Civil Rights; and Robert Ross, President, Florida 187
Committee.
On July 24, 1996, the Subcommittee held an additional
oversight hearing to consider legislation H.R. 3874, which
would extend the authorization of the Commission for an
additional year with funding of $8.74 million and make minor
changes to its authorizing statute. Witnesses included Mary
Frances Berry, Chairperson, U.S. Commission on Civil Rights;
Mary Mathews, Staff Director, U.S. Commission on Civil Rights;
Wade Henderson, Executive Director, Leadership Conference on
Civil Rights; and Robert George, Commissioner, U.S. Commission
on Civil Rights.
The Subcommittee favorably reported H.R. 3874 by a vote of
5-2 on July 25, 1996. The measure was ordered favorably
reported, without amendment, by the full Committee on September
18, 1996, by a vote of 12-6. H. Rept. 104-846.
Same-Sex Marriage--The Defense of Marriage Act
H.R. 3396, the Defense of Marriage Act, was introduced on
May 7, 1996. The Subcommittee held a hearing on the legislation
on May 15, 1996. The witnesses were the Honorable Terrance Tom,
Hawaii State House of Representatives; Honorable Edward Fallon,
Iowa State House of Representatives; Honorable Marilyn
Musgrave, Colorado State House of Representatives; Honorable
Ernest Chambers, Nebraska State Senate; Honorable Deborah
Whyman, Michigan State House of Representatives; Hadley Arkes,
Ney Professor of Jurisprudence and American Institutions,
Amherst College; Andrew Sullivan, Editor, The New Republic;
Dennis Prager, author, commentator, and radio talk show host,
KABC/Los Angeles; Nancy McDonald, Tulsa, Oklahoma; Lynn Wardle,
Professor of Law, Brigham Young University Law School;
Elizabeth Birch, Executive Director, Human Rights Campaign;
Rabbi David Saperstein, Director, Religious Action Center,
Union of American Hebrew Congregations; Jay Alan Sekulow, Chief
Counsel, American Center for Law and Justice; with additional
material submitted by Maurice Holland, Professor of Law,
University of Oregon Law School.
On May 30, 1996, the Subcommittee met and ordered reported
the unamended bill H.R. 3396, by a vote of 8-4. On June 12,
1996, the full Committee on the Judiciary ordered reported
favorably the bill H.R. 3396 without amendment by a vote of 20-
10. H. Rept. 104-664.
The full House approved H.R. 3396 without amendment on July
12, 1996 by a vote of 342-67 (2 Members voting ``present'').
The Senate passed H.R. 3396, again without amendment, on
September 10, 1996, by a vote of 85-14, and President Clinton
signed the bill into law on September 21, 1996. Public Law 104-
199.
Presidential and Executive Office Accountability Act
The Subcommittee completed a review of the applicability of
the civil rights laws to the executive staff of the President
as contained in H.R. 3452. The bill was signed by the President
on October 26, 1996 as Public Law 104-331.
Constitutional Amendments
Balanced Budget
On January 9 and 10, 1995, the Subcommittee on the
Constitution held two days of hearings on H.J. Res. 1, the
Balanced Budget Constitutional Amendment. On January 9,
testimony was heard from Representative Joe Barton (R-TX);
Representative Bob Franks (R-NJ); Representative Dan Schaefer
(R-CO); Representative Bill Archer (R-TX); Honorable Alice
Rivlin, Director, Office of Management and Budget; Honorable
William Barr, former Attorney General; Dr. Martin Anderson,
Senior Fellow, Hoover Institution at Stanford University; and
Dr. William Niskanen, Chairman, Cato Institute. The following
day's witnesses were Representative Richard Gephardt (D-MO),
the Minority Leader; Representative Charles Stenholm (D-TX);
Representative Robert Wise (D-WV); Representative Karen
McCarthy (D-MO); Honorable Jeffrey Wennberg, Mayor of Rutland,
Vermont, on behalf of the National League of Cities; Honorable
John Hamre, Under Secretary of Defense; Robert Ball, former
Commissioner, Social Security Administration; Dr. Robert
Eisner, Professor of Economics Emeritus, Northwestern
University; and Alan Morrison, Esq.
While hearings were held by the Subcommittee, H.J. Res. 1
was held at full Committee. For further information regarding
Committee consideration of H.J. Res. 1, see discussion of full
Committee activities.
Term Limits
The Republican ``Contract with America'' promised the
first-ever floor vote on a constitutional amendment to limit
the terms of members of the House and Senate. On February 3,
1995, the Subcommittee on the Constitution held a hearing on
H.J. Res. 2. The Subcommittee heard from Representative Tillie
Fowler (R-FL); Representative Bill McCollum (R-FL);
Representative Nathan Deal (R-GA); Representative Douglas
``Pete'' Peterson (D-FL); Representative Donald Payne (D-NJ);
Representative Ray Thornton (D-AR); Senator Fred Thompson (R-
TN); Senator Mitchell McConnell (R-KY); former Senator Dennis
DeConcini; Charles Kesler, Director of the Henry Salvatori
Center, Claremont McKenna College; John Kester, Attorney,
Williams and Connolly; Thomas Mann, The Brookings Institution;
Honorable Thomas Fetzer, Mayor of Raleigh, North Carolina;
Cleta Deatherage Mitchell, General Counsel, Term Limits Legal
Institute; Fred Wertheimer, President Common Cause; and Becky
Cain, League of Women Voters.
The full Committee reported H.J. Res. 2, amended, to the
House without recommendation. The vote was 21-14. H. Rept. 104-
67. The House voted on H.J. Res. 73, a successor term limits
amendment, on March 29, 1995, but failed to approve it by the
necessary two-thirds vote.
Flag Protection
On May 24, 1995, the Subcommittee on the Constitution held
a hearing on H.J. Res. 79, a proposed constitutional amendment
to prohibit the physical desecration of the flag of the United
States. The witnesses at this hearing were Representative
Gerald B.H. Solomon (R-NY); Representative G.V. ``Sonny''
Montgomery (D-MS); Stephen B. Presser, Raoul Berger Professor
of Legal History, Northwestern University School of Law; Clint
Bolick, Vice President and Director of Litigation, Institute
for Justice; Rose E. Lee, Washington Representative, Gold Star
Wives of America; Commander William Detweiler, National
Commander, The American Legion; Adrian Cronauer, Senior
Associate, Maloney & Burch; Bruce Fein, Attorney and Columnist;
Robert Nagel, Ira Rothgerber Professor of Constitutional Law,
University of Colorado; with additional material submitted by
The American Legion, the Emergency Committee to Defend the
First Amendment and the American Bar Association.
The Subcommittee held a markup on H.J. Res. 79 on May 25,
1995 and favorably reported the legislation to the full
committee by a vote of 7-5. The full Committee ordered H.J.
Res. 79 favorably reported on June 7, 1995 by a vote of 18-12.
H. Rept. 104-151. The House passed H.J. Res. 79 on June 28,
1995 by a vote of 312-120. The amendment failed to receive the
necessary two-thirds vote in the Senate.
Tax Limitation Amendment
On March 6, 1996, the Subcommittee held a hearing on H.J.
Res. 159, a proposed constitutional amendment to require a
supermajority vote to raise taxes. The Subcommittee heard
testimony from Representative Joe Barton (R-TX); Representative
David Skaggs (D-CO); Representative Pete Geren (D-TX);
Representative John Shadegg (R-AZ); Senator Jon Kyl (R-AZ);
Honorable Ken Blackwell, Treasurer, State of Ohio; Bruce
Ackerman, Sterling Professor of Law and Political Science, Yale
University; John McGinnis, Professor of Law, Benjamin N.
Cardozo Law School; Dr. William Niskanen, Chairman, Cato
Institute; Dean Samuel Thompson, University of Miami School of
Law; Dr. Lawrence Hunter, President, Business Leadership
Council; and Dr. Lowell Gallaway, Edwin & Ruth Kennedy
Economics Distinguished Professor, Ohio University. On April
15, 1996 the House failed to adopt the measure when the vote of
243 yeas to 177 nays, fell short of the two-thirds required.
Oversight Activities
Environment and Natural Resources Division of the Department of Justice
The Subcommittee held a hearing on May 10, 1995, to
consider the enforcement record, new priorities and
authorization request of the Environment and Natural Resources
Division of the Department of Justice. Lois J. Schiffer,
assistant attorney general, Environment and Natural Resources
Division, Department of Justice, testified before the
Subcommittee.
The Environment and Natural Resources Division is charged
with representing federal agencies in litigation concerning
federal land and water, Indian disputes, wildlife protection,
the cleanup of hazardous waste sites, the acquisition of
private property for federal use, civil and criminal
enforcement of environmental regulations, and defense of
challenges to environmental programs. The Division employs 728
people who are organized into nine litigating sections and an
executive office.
Subcommittee members examined the impact of the Division's
enforcement efforts on the private property rights of citizens,
the role of states in enforcing federal mandates, and criminal
prosecution for violations of regulations where there is no
evidence of adverse impact to the environment and no specific
intent to violate the regulation.
Office of Government Ethics
On May 17, 1995, the Subcommittee on the Constitution held
an oversight and reauthorization hearing on the United States
Office of Government Ethics (OGE). The Subcommittee received
testimony from Director Stephen D. Potts. The hearing focused
on OGE's role in providing the overall direction of executive
branch policies with regard to employee conflicts of interest.
In addition, the hearing focused on questions regarding the
length of OGE's reauthorization and gift acceptance authority
for the agency. The oversight hearing was conducted pursuant to
the oversight plan of the Subcommittee set forth at the
beginning of the 104th Congress.
Clinton Administration Adarand Review
On June 12, 1995, the Supreme Court decided Adarand
Constructors v. Pena, 115 S. Ct. 2097 (1995). There are dozens,
perhaps hundreds of federal programs that classify citizens on
the basis of race and treat them differently based on the color
of their skin. Prior to Adarand, constitutional challenges to
such laws triggered the so-called intermediate scrutiny test,
under which they would be sustained if the government could
show that they were substantially related to an important
government interest. See, e.g., Metro Broadcasting, Inc. v.
FCC, 497 U.S. 547 (1990). In Adarand, the Court held for the
first time that federal racial classifications--like such
classifications enacted by state and local governments, see
Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)--are subject
to the strict scrutiny test, which requires them to be narrowly
tailored to serve a compelling government interest.
Adarand thus marked a sea-change in the constitutional
limits on the ability of the federal government to classify
citizens based on skin color or ethnicity. On July 19, 1995,
President Clinton signed an executive order instructing the
Administration to undertake a comprehensive review of all
federal programs to determine what changes would be required by
Adarand.
That review, and the Administration's view of Adarand in
general, was the primary focus of the Subcommittee's July 20,
1995 Authorization and Oversight Hearing of the Civil Rights
Division of the Department of Justice. (Other topics addressed
at this hearing related to Civil Rights Division's enforcement
activities relating to school desegregation, voting rights,
mortgage lending, and other areas.) The witnesses at this
hearing were the Honorable Deval Patrick, Assistant Attorney
General, Civil Rights Division, Department of Justice; Clint
Bolick, Vice President and Litigation Director, Institute for
Justice; Theodore Shaw, Associate Director and Counsel, NAACP
Legal Defense and Education Fund; and William Perry Pendley,
President and Chief Legal Officer, Mountain States Legal
Foundation and counsel for the Plaintiff in the Adarand case.
On September 22, 1995, the Subcommittee and the Senate
Judiciary Subcommittee on the Constitution, Federalism, and
Property Rights held a joint Oversight Hearing on the ``Impact
of Adarand v. Pena: The Constitutionality of Race-Based
Preferences.'' The witnesses at this hearing were the Honorable
John Schmidt, Associate Attorney General, Department of
Justice; Michael A. Carvin, Shaw, Pittman, Potts & Trowbridge;
Georgina Verdugo, Regional Counsel, Mexican American Legal
Defense and Education Fund; Dr. George LaNoue, Director,
Project on Civil Rights and Public Contracts, University of
Maryland-Baltimore; Leon Goldstein, Chairman, Prior Tire
Company, Atlanta, Georgia; Anthony Robinson, President,
Minority Business Enterprise Legal Defense and Education Fund,
Inc.; and Thomas Stewart, President, Frank Gurney, Inc.,
Spokane, Washington.
Birthright Citizenship
On December 13, 1995, the Subcommittee held a joint hearing
with the Subcommittee on Immigration and Claims on ``The
Societal and Legal Issues Surrounding Children Born in the
United States to Illegal Alien Parents.'' A number of Members
of Congress testified as well as a representative from the
Administration and various State officials.
Roe v. Wade
On April 22, 1996, the Subcommittee held a hearing to
examine the ``Origins and Scope of Roe v. Wade. The following
witnesses testified: Steven Calvin, M.D., Assistant Professor,
Department of Obstetrics and Gynecology, University of
Minnesota; Sharon Dunsmore, R.N., Neonatal Intensive Care Unit,
Michigan Hospital; Mary Ann Glendon, Learned Hand Professor of
Law, Harvard Law School; Ronald M. Green, Ph.D., John Phillips
Professor of Religion, Dartmouth College, and Director,
Dartmouth Ethics Institute; Gianna Jessen, an abortion
survivor; Douglass W. Kmiec, Professor of Constitutional Law,
University of Notre Dame Law School and Straus Distinguished
Visiting Professor, Pepperdine University School of Law;
Kimberly Schuld, Vice President, The Polling Co.; and Mark
Tushnet, Carmack Waterhouse Professor of Constitutional Law,
Georgetown University Law Center.
Physician-Assisted Suicide
On April 29, 1996, the Subcommittee held a hearing to
examine ``Assisted Suicide in the United States.'' The
following witnesses testified: Lonnie L. Bristow, M.D.,
President, American Medical Association; Charles H. Baron,
Professor of Law, Boston College Law School; Diane Coleman,
J.D., M.B.A., Executive Director, Progress Center for
Independent Living; Kathleen M. Foley, M.D., Director, Project
on Death in America; Carlos Gomez, M.D., Assistant Professor of
Medicine, University of Virginia School of Medicine; Herbert
Hendin, M.D., Executive Director, American Suicide Foundation;
Yale Kamisar, Clarence Darrow Distinguished University
Professor, University of Michigan Law School; Leon R. Kass,
M.D., Addie Clark Harding Professor, the College and Committee
on Social Thought, University of Chicago; Samuel Klagsbrun,
M.D., Executive Medical Director, Four Winds Hospital; Charles
Krauthammer, M.D.; Barbara Coombs Lee, chief petitioner,
Oregon's Death with Dignity Act; Victor Rosenblum, Nathaniel L.
Nathanson Professor of Law and Political Science, Northwestern
University School of Law; Bishop John Spong; Roy Torscano,
representing Albert Rosen, M.D.
Based on testimony at the April 29, 1996, hearing, Chairman
Canady issued a report to the Subcommittee on the history and
current status of ``Physician-Assisted Suicide and Euthanasia
in the Netherlands.''
School Desegregation Litigation
On September 18, 1995, the Subcommittee held a hearing in
Cleveland, Ohio on the ``Effectiveness of Mandatory Busing in
Cleveland.'' This hearing was the first step in a process
designed to explore whether legislation might be helpful and
appropriate in assisting federal courts to determine when court
supervision of public school districts should be terminated.
The witnesses were Daniel McMullen, the court-appointed special
master in Reed v. Rhodes, the Cleveland school desegregation
lawsuit initiated in 1973; Ohio State Representative Ron Mottl;
Dr. Thomas Bier, Director, Housing Policy Research Program at
Cleveland State University; Louis Erste, Fellow, Citizens
League Research Institute; Lawrence Lumpkin, President,
Cleveland Board of Education; Don Sopka, Councilman, Broadview
Heights City Council; Richard McCain, Plaintiff Class
Representative in Reed v. Rhodes; Genevieve Mitchell, Executive
Director, Community Services, Black Women's Center; Joyce Haws,
Communications Director, National Association of Neighborhood
Schools; and a variety of citizens who spoke during the ``open-
mike'' segment at the end of the hearing.
On April 16, 1996, the Subcommittee held a hearing on
``Legislative Responses to School Desegregation Litigation.''
The witnesses were Representative William Lipinski (D-IL);
Representative Martin Hoke (R-OH); Dr. David Armor, Research
Professor, Institute of Public Policy, George Mason University;
William Taylor, attorney and Vice-Chairman, Leadership
Conference on Civil Rights; Charles J. Cooper, Shaw, Pittman,
Potts & Trowbridge and former Assistant Attorney General for
the Office of Legal Counsel; Theodore Shaw, Associate Director-
Counsel, NAACP Legal Defense and Education Fund; and Marcy
Canavan, Chairman, Board of Education of Prince George's County
Public School District.
subcommittee on immigration and claims
LAMAR SMITH, Texas, Chairman
JOHN BRYANT, Texas ELTON GALLEGLY, California
BARNEY FRANK, Massachusetts CARLOS J. MOORHEAD, California
CHARLES E. SCHUMER, New York BILL McCOLLUM, Florida
HOWARD L. BERMAN, California SONNY BONO, California
XAVIER BECERRA, California FRED HEINEMAN, North Carolina
ED BRYANT, Tennessee
Tabulation and disposition of bills referred to the subcommittee
Legislation referred to the Subcommittee.......................... 102
Legislation reported favorably to the full Committee.............. 5
Legislation reported adversely to the full Committee.............. 0
Legislation reported without recommendation to the full Committee. 0
Legislation reported as original measure to the full Committee.... 0
Legislation discharged from the Subcommittee...................... 7
Legislation pending before the full Committee..................... 0
Legislation reported to the House................................. 5
Legislation discharged from the Committee......................... 7
Legislation pending in the House.................................. 0
Legislation passed by the House................................... 12
Legislation pending in the Senate................................. 4
Legislation vetoed by the President (not overridden).............. 0
Legislation enacted into public law............................... 8
Legislation on which hearings were held........................... 5
Days of hearings (legislative and oversight)...................... 20
Private bills:
Claims bills referred to subcommittee......................... 47
Immigration bills referred to subcommittee.................... 14
Bills on which hearings were held............................. 0
Bills heard/reported favorably to committee................... 0
Claims bills not heard/reported favorably to committee........ 8
Immigration bills referred to subcommittee.................... 3
Bills reported adversely to full committee.................... 0
Claims bills ordered reported to the House.................... 9
Immigration bills ordered reported to the House............... 2
Claims bills which passed the House........................... 8
Immigration bills which passed the House...................... 2
Claims bills pending in the House............................. 1
Immigration bills pending in the House........................ 0
Claims bills pending in the Senate............................ 6
Immigration bills pending in the Senate....................... 0
Bills recommitted to the Committee............................ 0
Bills passed and referred to U.S. Claims Court................ 0
Claims bills which became law................................. 2
Immigration bills which became law............................ 2
Jurisdiction of the Subcommittee
The Subcommittee on Immigration and Claims has legislative
and oversight over matters involving: immigration and
naturalization, admission of refugees, treaties, conventions
and international agreements, claims against the United States,
federal charters of incorporation, private immigration and
claims bills, and other appropriate matters as referred by the
Chairman of the Judiciary Committee.
Public Legislation Enacted into Law
Comprehensive Immigration Reform: The Illegal Immigration Reform and
Immigrant Responsibility Act of 1996
Legislative History
More complete detail on the background, specific
provisions, and legislative history of the ``Illegal
Immigration Reform and Immigrant Responsibility Act of 1996''
may be found in the following Reports: Immigration in the
National Interest Act of 1995: Report of the Committee on the
Judiciary, House of Representatives, on H.R. 2202 (Rept. 104-
469, Part I) (March 4, 1996); and Conference Report: Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(Rept. 104-828).
Background
The United States is a nation of immigration. This proud
tradition has been tarnished in recent decades by failures to
set clear priorities in our system of legal immigration and to
enact and enforce the measures necessary to prevent the rising
tide of illegal immigration. Unlimited immigration is a moral
and practical impossibility. In the words of the 1981 report of
the Select Commission on Immigration and Refugee Policy,
``[o]ur policy--while providing opportunity for a portion of
the world's population--must be guided by the basic national
interests of the United States.''
In the intervening years, this basic message was not
heeded. Despite several immigration reform efforts, there was a
failure to clearly define the national interests at stake in
immigration policy. The American public, as well as people
seeking to abuse the generosity of this nation, came to believe
that the Federal Government lacked the will and the means to
enforce existing laws and to enact new ones. The statistics
supported this perception: more than 4 million illegal aliens
resided in the United States at the start of the 104th
Congress, with an average net increase each year of 300,000;
approximately half of these illegal residents had arrived with
legal temporary visas and had overstayed; each year, tens of
thousands of illegal aliens were ordered deported but were not
removed from the United States due to lack of resources and
legal loopholes; and the legal immigration system failed to
unite nuclear families promptly, encouraged the ``chain
migration'' of extended families, and admitted the vast
majority of immigrants without regard to their level of
education, job skills, or language preparedness.
These failures in immigration enforcement imposed genuine
social costs. Every three years, enough illegal immigrants
entered the country to populate a city the size of Boston,
Dallas, or San Francisco. More than 25 percent of the
population of Federal prisons consisted of illegal aliens, most
of whom had been convicted of drug crimes. Up to 50 percent of
illegal immigrants used fraudulent documents to obtain work or
public benefits. There was a 580 percent increase over 12 years
in the number of immigrants receiving Supplemental Security
Income, a form of welfare. The principle that immigrants should
be self-sufficient and not become public charges was frequently
violated. In addition, the phenomenon of ``chain migration''
led to demands on the legal immigration system that could not
be satisfied: as of 1995, more than 3.5 million persons were
waiting in backlogs for admission under the various family-
based categories, including more than a million spouses and
minor children of lawful permanent residents. These backlogs
created an additional incentive for aliens to enter the U.S.
illegally and wait here for their visa to be issued. Hundreds
of thousands of aliens have done exactly this. By so broadly
defining the category of ``family'' that can be admitted via
relative petitions, the legal immigration system fails to
provide a system for selecting immigrants that is more
objectively linked to the national interest.
The Immigration in the National Interest Act of 1995
(``Act''), originally introduced as H.R. 1915 and re-introduced
as H.R. 2202, set out to change these realities by enacting the
most comprehensive reform of American immigration policy in the
past generation. Previous legislation, notably the Immigration
Act of 1965, the Refugee Act of 1980, the Immigration Reform
and Control Act of 1986, and the Immigration Act of 1990, have
had a profound impact on U.S. immigration policy. Some
provisions of these laws, however, contributed to the problems
we now face by failing to set clear priorities for our
immigration system, and failing to provide tough sanctions
against those who violate our immigration laws. In addition,
these laws failed to treat migration as a comprehensive
phenomenon, and failed to make the tough choices on priorities
that would restore credibility both to our systems of admitting
legal immigrants and deterring, apprehending, and removing
illegal immigrants. More fundamentally, the law failed to
provide adequate resources and enforcement tools to the
Immigration and Naturalization Service (INS) to carry out its
critical functions.
Hearings
The Immigration in the National Interest Act was originally
introduced as H.R. 1915 on June 22, 1995. Prior to
introduction, the Subcommittee on Immigration and Claims,
chaired by Rep. Lamar Smith (TX), held eight hearings, with a
total in excess of 100 witnesses, to discuss problems and
proposed solutions in the areas of illegal immigration and
legal immigration: border security; detention and removal of
illegal and criminal aliens; worksite enforcement of employer
sanctions; the impact of illegal immigration on public benefit
programs and the American labor force; visa overstays;
verification of eligibility for employment and public benefits;
and legal immigration reform proposals.
Commission on Immigration Reform
Much of the framework for H.R. 2202 was based on the work
of the bipartisan U.S. Commission on Immigration Reform,
chaired by former Congresswoman Barbara Jordan. The Commission
was created by the Immigration Act of 1990 (Public Law 101-649)
and mandated to report to Congress with analysis and
recommendations regarding the implementation of and impact of
U.S. immigration policy. The Commission has issued two major
reports: U.S. Immigration Policy: Restoring Credibility (1994)
and Legal Immigration: Setting Priorities (1995). The
Commission held public hearings and consultations in cities
across the United States, as well as undertaking a systematic
analysis of immigration enforcement procedures, the economic
and social characteristics of recent immigrants, and the impact
of immigration on the labor market, business, and public
benefit programs.
The Commission's recommendations in the 1994 Report
included: enhanced border enforcement, including deployment of
personnel directly on the border to deter illegal immigrations;
streamlining of processes to remove illegal aliens,
particularly criminal aliens, from the United States; and an
improved verification system to prevent illegal aliens from
being employed or receiving public benefits. The
recommendations in the 1995 Report were for a restructuring of
the legal immigration system to reflect the following
priorities: unification of the nuclear families of U.S.
citizens and lawful permanent residents; admission of highly-
skilled immigrants to enhance the competitiveness of U.S.
companies and encourage economic growth; providing humanitarian
protection to refugees; and enforcing established limits within
each of the legal immigration categories.
Summary of Legislation as Introduced
On June 22, 1995, H.R. 1915, the ``Immigration in the
National Interest Act of 1995,'' was introduced by
Representative Lamar Smith, Chairman of the Subcommittee on
Immigration and Claims. The bill was referred to the Committee
on the Judiciary, and in addition to the Committees on National
Security, Economic and Educational Opportunities, Government
Reform and Oversight, Ways and Means, Commerce, Agriculture,
and Banking and Financial Services, for a period to be
subsequently determined by the Speaker.
The Act as introduced included eight titles, each
reflecting a key area of immigration policy in need of reform.
Border Security
Title I mandated improvements in the security of the
nation's land borders by requiring an increase of 1,000 per
year through FY 2000 in the number of U.S. Border Patrol
agents. In order to prevent illegal immigration, the new agents
were to be deployed in sectors of the border with the highest
number of illegal crossings into the U.S., and agents in these
sectors were to be ``forward deployed'' to provide a visible
deterrent to illegal entry. In addition, new fences and roads
to deter illegal entries would have to be constructed,
including a 14-mile triple fence extending eastward from San
Diego, the most heavily-traveled corridor for illegal entry
into the U.S. These provisions followed closely the
recommendations of the Jordan Commission, which called for
increased personnel and technology resources, appropriate use
of fences, and adoption of strategies of prevention and
deterrence similar to ``Operation Hold-the-Line,'' a successful
initiative of the Border Patrol in El Paso, Texas. The
Commission also recommended, and the legislation included,
provisions to ensure the security of the Border Crossing
Identification Card, a document issued chiefly to Mexican
citizens for the purpose of short-term visits to the border
area of the U.S. These documents have been subject to
fraudulent use and counterfeit; the legislation called for re-
issuance of such cards, with enhanced security features.
Finally, Title I called for establishment of a pilot program to
repatriate deported aliens to the interior of their home
country, in order to deter repeated attempts to the U.S., and
for a pilot program to track departures of aliens from the
United States, in order to better identify the extent of the
visa-overstay problem.
Alien Smuggling
Title II focused on the problem of alien smuggling. In line
with the Commission's recommendations, this title increased
penalties for alien smuggling, established liability under the
Racketeer Influenced and Corrupt Organizations Act (RICO) for
alien smuggling crimes, increased penalties for document fraud,
expanded the investigatory authority of the INS, and expanded
the use asset forfeiture against those involved in alien
smuggling.
Removal of Illegal and Criminal Aliens
Title III was the heart of the Act's reform of procedures
dealing with illegal aliens. The Commission recommended that
greater priority and resources be given to the apprehension,
detention, and removal of criminal aliens. Title III expanded
on this recommendation to propose a thorough reform of all
procedures to inspect, apprehend, detain, adjudicate, and
remove illegal aliens from the U.S. In addition, Title III
authorized greater resources to be devoted to the effort of
removing illegal aliens.
The first aspect of the reforms in Title III concerned the
legal status of aliens entering or attempting to enter the U.S.
One urgent problem in recent years has been the arrival at U.S.
airports of smuggled aliens who possess fraudulent or otherwise
invalid travel documents, or who have destroyed their documents
en route, and who make claim to asylum in order to be able to
remain in the U.S. Because of delays in the asylum system,
hearings were often scheduled for months later. If not
detained, the aliens would most often disappear and become
long-term illegal residents. Title III addressed this problem
by establishing a system of ``expedited removal'': aliens
arriving with fraudulent or no documents would not be eligible
for a hearing before an immigration judge, or for any rights of
appeal, because they clearly had no right to enter the U.S. As
such, these aliens could be returned immediately to their point
of departure. If an alien claimed asylum, an expedited
procedure would be provided, including an interview by a
trained asylum officer, to determine if the alien had a
``credible fear'' of persecution. This standard, lower than the
``well-founded fear'' standard needed to receive asylum, was
intended to separate meritorious claims from clearly non-
meritorious claims. It was also intended to make this
determination in a prompt but fair manner, so that aliens in
need of protection could remain in the U.S., while those making
frivolous claims would be removed.
The second aspect of reforms in Title III concerned the
status of and procedures afforded to aliens who have already
entered the U.S. The first basic step was to modify the
``entry'' doctrine, an interpretation of the Immigration and
Nationality Act (INA) which held that an alien who has made an
entry onto U.S., even if illegal and transitory, is entitled to
the same rights in deportation proceedings as a long-term legal
resident of the U.S. The second step was to eliminate the
distinction between ``exclusion'' and ``deportation''
proceedings, a distinction that caused needless litigation and
procedural delay and which had outlived its usefulness.
Instead, a single form of ``removal'' proceeding would be
established, with different burdens of proof assigned on the
basis of the alien's status in the U.S. Thus, an illegal alien
would have the burden to prove his or her right to remain in
the U.S., while in the case of a long-term permanent resident
of the U.S., the burden would be on the Government to establish
why the alien should be removed. Just as important, the
legislation amended the rules regarding eligibility for relief
from deportation, which is based in part on the length of an
alien's residence in the U.S. The reforms ended the accrual of
time-in-residence on the date an alien is placed into removal
proceedings, thus removing the incentive for aliens to prolong
their cases in the hope of remaining in the U.S. long enough to
be eligible for relief. The reforms also toughened the other
standards for granting such relief to illegal aliens and, in
particular, to criminal aliens.
The Title III reforms also imposed greater accountability
for the detention and removal of aliens at the close of the
hearing process. The Inspector General of the Department of
Justice has found that the vast majority of aliens who are not
detained at the close of deportation proceedings abscond and
are not removed from the U.S., while the vast majority of those
who are detained do depart the U.S. The reforms thus required
increased detention of aliens who are ordered removed, and for
removal to be completed within 90 days of a final order of
removal. The reforms also ended the practice of granting an
automatic stay of removal to aliens who appeal their orders to
the Federal courts. Finally, the process for appeals was
streamlined and the scope of judicial review narrowed.
Title III also provided for special removal procedures to
be employed in cases involving terrorists and in which the use
of normal procedures would pose a risk to national security.
These proceedings would be conducted by Federal district court
judges specially appointed for this task by the Chief Justice
of the Supreme Court. Aliens would have the right to be
represented by attorneys appointed at Government expense.
Classified information could be examined in camera, with a
summary of such evidence provided to the alien. In rare
circumstances where even the presentation of a summary would
case harm to the national security or to any person, the
proceeding could go forward without providing a summary of
evidence to the alien. In such cases involving a lawful
permanent resident, the withheld information would be provided
to a special attorney representing the alien, but who could not
disclose the information to the alien or to any other
individual. The special attorney could, however, contest the
veracity, reliability, or sufficiency of the evidence as a
basis for removing the alien from the U.S. The alien or the
Government would have the right to appeal as adverse ruling to
the U.S. Court of Appeals for the District of Columbia, and to
seek review by the Supreme Court of the United States.
The remainder of Title III made a number of other changes
to policies and procedures for the removal of illegal aliens.
It established membership in a terrorist organization as a
basis for exclusion from the U.S.; denied immigration benefits
and relief to alien terrorists; made air carriers liable for
the detention costs (not actual detention) of certain aliens
brought to the U.S.; raised carrier fines for bringing unlawful
aliens to the U.S.; broadened the definition of ``conviction''
to make it easier to deport criminal aliens from the U.S.;
defined the status of immigration judges in the removal
process; provided civil penalties for aliens who fail to depart
the U.S. under an order of removal; and enhanced criminal
penalties for certain immigration crimes, including illegal
reentry and passport and visa fraud.
Employer Sanctions and Verification
The availability of jobs in the U.S. economy is a primary
magnet for illegal immigration. The employment of illegal
aliens, in turn, cases deleterious effects for U.S. workers.
The Commission on Immigration Reform found that ``[f]or years,
U.S. policy tacitly accepted illegal immigration, as it was
viewed by some to be in the interests of certain employers and
the American public to do so.''
Following the recommendation of the 1981 Select Commission,
the Immigration Reform and Control Act of 1986 prohibited the
employment of illegal aliens and introduced the requirement
that all employers verify the status of their new employees to
determine their eligibility to work. The verification procedure
is carried out through the ``I-9'' form, which requires new
employees to provide one of 29 different documents to establish
their eligibility to work. Criminal sanctions apply to
employers who knowingly hire illegal aliens. Enforcement of
this scheme of verification and employer sanctions has been
hampered by the rampant use of fraudulent documents, confusion
on the part of employers, and continued access by illegal
aliens to jobs and public benefits.
The Commission on Immigration Reform recommended several
key changes to improve the verification process and sanctions
enforcement. The Commission concluded that the most promising
option for secure, non-discriminatory verification is a
computerized registry using data provided by the Social
Security Administration (SSA) and the INS. The key to this
process would be the social security number: the new
verification system would permit employers to quickly check
whether a social security number provided by a new employee is
valid and has been issued to an individual authorized to work
in the U.S. Such a system would be more resistant to fraud
because it would not rely on identification documents, most of
which are easily counterfeited and available for sale. The
system would reduce the temptation to discriminate against
persons of apparent foreign origin because all employees would
be subject to the same ``color-blind'' test. Finally, employers
would save in time, resources, and paperwork by not having to
check documents and maintain paper records. The Commission also
recommended that the system be designed to allow the
verification of the accuracy of data in the registry, to
continually monitor the accuracy of such data, to protect the
privacy of information in the registry, and to phase in the
system through pilot projects. Finally, the Commission
recommended enhanced worksite enforcement to target employers
and industries that knowingly and/or frequently employ illegal
aliens.
Title IV of H.R. 1915 included a modified version of the
Commission's recommendations. It provided for increased
personnel to enforce employer sanctions and wage and hour laws
at the worksite. It streamlined the I-9 process by reducing
from 29 to 6 the number of documents that may be presented to
an employer to establish eligibility to work: a passport or
alien registration card or resident alien card, or a social
security card in combination with a driver's license or state
ID card. It also required the establishment, by October 1,
1999, of a nationwide mechanism to verify the eligibility of
employees through checking their social security numbers or
alien registration numbers. The verification mechanism would be
instituted on a pilot basis within 6 months of the enactment in
5 of the 7 states with the highest population of illegal
aliens.
The verification mechanism under H.R. 1915 would work as
follows: As under current law, once an applicant has accepted a
job offer, he or she would present certain documents to the
employer. The employer, within three days of the hire, must
examine the document(s) to determine whether they reasonably
appear on their face(s) to be genuine and complete an I-9 form
attesting to this examination. The employer would also have
three days from the date of hire (which can be before the date
the new employee actually reports to work) to make an inquiry
by phone or other electronic means to the confirmation office
established to run the mechanism. If the new hire claimed to be
a citizen, the employer would transmit his or her name and
social security number. The confirmation office would compare
the name and social security number provided against
information contained in the Social Security Administration
database. If the new hire claimed to be a non-citizen, the
employer would transmit his or her name, social security number
and alien identification number. The confirmation office would
compare the name and social security number provided against
information contained in the SSA database and would compare the
name and alien number provided against information contained in
the INS database.
When the confirmation office ascertained that the new hire
is eligible to work, the operator would within three days so
inform the employer and provide a confirmation number. If the
confirmation office could not confirm the work eligibility of
the new hire, it would within three days so inform the employer
of a tentative nonconfirmation and provide a tentative
nonconfirmation number. If the new hire wished to contest this
finding, ``secondary verification'' will be undertaken.
Secondary verification would be an expedited procedure set up
to confirm the validity of information contained in the
government databases and provided by the new hire. Under this
process, the new hire would typically contact or visit the SSA
and/or INS to see why the government records disagree with the
information he or she has provided. If the new hire requested
secondary verification, he or she could not be fired on the
basis of the tentative nonconfirmation. If the discrepancy were
reconciled, then confirmation of work eligibility and a
confirmation number would be given to the employer by the end
of this period. If the discrepancy were not reconciled or the
employee does not attempt to reconcile the information, then
final denial of confirmation and a final nonconfirmation number
would be given the end of this period; the employer would then
have to dismiss the new hire as being ineligible to work in the
United States.
Legal Immigration Reform
Background.--Congress has the Constitutional task to set
immigration policy in the national interest. As a result of
legislation enacted in 1965, 1986, and 1990, the United States
has dramatically increased overall levels of legal immigration.
During the past 15 years, we have admitted or legalized almost
12 million immigrants: an average of 733,000 each year legal
immigrants were admitted or legalized from 1981-1990, and a
whopping 1.13 million per year from 1991-1994. These numbers
include the amnesty granted to 2.7 million illegal aliens under
the 1986 Immigration Reform and Control Act. There is no
comparable sustained period of immigration growth in American
history.
Such large increases in immigration create problems as well
as opportunities for the American society and economy. While
immigrants often bring new energy and vitality to our society
and economy, the current system for selection of immigrants
does not meet any clearly-defined national interests. A
preponderance of immigrants (close to 9 million since 1980) are
admitted without reference to their level of education or
skills. The current cohort of immigrants is far more likely to
have less than a high-school education than native-born
Americans. This can have the effect of flooding the labor
market for unskilled work, as well as creating pockets of
impoverished immigrants who will be less likely to assimilate
into the broader American society. These negative impacts are
most keenly felt in the handful of States in which a vast
majority of immigrants choose to live, and, ironically, cause
most direct harm to recent immigrants. Legal immigration policy
must strike a proper balance so that these problems do not
overwhelm the opportunities that immigration brings to the
nation, and result in job loss and displacement for American
workers.
There also are legitimate concerns that the Government's
and society's capacity for admitting, assimilating, and
naturalizing immigrants have been strained by current levels of
legal immigration. Again, these problems are heightened in
high-immigration States. Our education system, for example, is
burdened by the needs of immigrants who either are not
proficient in English or illiterate in their own language or
both. In Los Angeles county, education is provided in over 70
languages at a larger ``per student'' cost to the taxpayer.
While we should expect a great deal of diversity in
immigration, the U.S.'s capacity to absorb immigrants is not
unlimited.
Family-based immigration, the dominant engine of
immigration growth, is key to reform efforts. Demand in these
categories has grown dramatically due to the beneficiaries of
legalization under IRCA obtaining permanent resident status,
and eventually citizenship, thus allowing them to petition for
relatives abroad. Thus, most immigrants are admitted solely on
the basis of their relationship to another immigrant. This
pattern of ``chain migration'' not only distorts the selection
criteria for legal immigrants, but may add additional incentive
for people to attempt illegal immigration to the U.S.; since
petitions for family-based immigrant status far exceed the
statutory caps for admissions, more than 3.5 million
individuals, including 1.1 million spouses and minor children
of lawful permanent residents, are waiting for admission. The
waiting list provides a powerful incentive for aliens to enter
the U.S. illegally, or to overstay their visas, and wait to
receive lawful status while residing in the U.S.
The basic failure of the current system, therefore, is that
while it sets preferences, it fails to set priorities. For
example, with a finite number of immigrant admissions, numbers
allocated to brothers and sisters and other categories mean
fewer numbers are allocated to the spouses and minor children
of lawful permanent residents. The preservation of the nuclear
family, therefore, should continue to be a cornerstone of U.S.
immigration policy. The same priority cannot be given, and
should not be given, to the admission of brothers and sisters
and adult sons and daughters, solely on the basis of their
family relationship to an immigrant. When an adult leaves his
native land to emigrate to America, he or she makes a decision
to be separated from brothers and sisters, parents, and adult
children. This is a difficult decision in many cases, but
ultimately, it is a decision that the immigrant has made.
Immigration policy cannot and should not attempt to soften
the blow by holding out the hope that these adult families will
be eligible to immigrate to the U.S. Clear evidence of this
fact are the enormous backlogs that now exist in virtually all
extended family categories. To clear out these backlogs,
immigration law would have to provide up to an additional 2.4
million visas: a dramatic increase in legal immigration at a
time when stabilization of immigrant numbers is called for. To
compound the problem, these 2.4 million immigrants could
petition for admission of their relatives, thus raising demand
on the legal immigration system to an unprecedented level and
creating new, exponentially larger backlogs.
Excessive backlogs in these admission categories undermine
the credibility and integrity of U.S. immigration policy
because they hold out a promise of opportunity to immigrate
that cannot be met in the foreseeable future. Finally, the
permanent excessive demand on the immigration system
represented by these backlogs makes it difficult if not
impossible to alter course and give greater priority to
immigration categories that are more closely tied to the
national interest. We can sympathize with people who have been
waiting in line and may no longer be eligible for admission.
But immigration is a privilege, not a right, and not all those
eligible at one time for a visa can be guaranteed to receive
one. Otherwise, immigration policy would be forever ``locked
in'' to decisions and priorities of the past.
Commission Recommendations.--The Commission on Immigration
Reform recommended a significant redefinition of priorities and
a reallocation of existing admission numbers to ensure that
immigration continues to serve our national interests. The
Commission defined several principles that should guide
immigration policy; the establishment of clear goals and
priorities; the enforcement of immigration limits; regular
periodic review; clarity and efficiency; enforcement of the
financial responsibility of sponsors to prevent immigrants from
becoming dependent on public benefits; protection of American
workers; coherence; and ``Americanization''--the assimilation
of immigrants to become effective citizens.
The Commission recommended that there be three major
categories of legal immigration--family-based, skills-based,
and refugees. The current category for diversity admissions
would be eliminated.
Within the family category, the spouses and minor children
of U.S. citizens would be admitted on an unlimited basis, as
under current law. The parents of citizens could also be
admitted, but with stricter sponsorship requirements than
currently exist. Third priority would be given to spouses and
minor children of lawful permanent residents. The proposed
400,000 cap for family admissions would accommodate current
demand in these categories and allow for growth in the
unlimited category of spouses and children of citizens. In
addition, the Commission would make available 150,000
additional visas during each of the first 5 years to clear the
backlog of spouses and children (``nuclear family'') of lawful
permanent residents.
The Commission also proposed the elimination of the
following family categories: adult unmarried sons and daughters
of U.S. citizens; adult unmarried sons and daughters of lawful
permanent residents; adult married sons and daughters of
citizens; and brothers and sisters of adult U.S. citizens. This
was done for several reasons: to focus priority on the
admission of nuclear family members; to reduce the waiting time
for nuclear family members of lawful permanent residents
without raising overall immigration numbers; and to eliminate
the extraordinary backlogs in these categories that undermine
credibility of the immigration system. Most importantly, the
Commission believes that ``[u]nless there is a compelling
national interest to do otherwise, immigrants should be chosen
on the basis of the skills they contribute to the U.S.
economy.'' Admission of nuclear family members and refugees
present such a compelling interest, but admission of more
extended family members solely on the basis of their family
relationship is not as compelling.
The Commission recommended that up to 100,000 skills-based
immigrants be admitted each year in two basic categories: those
exempt from labor market testing, and those subject to labor
testing. The exempt category would include aliens with
extraordinary ability, multinational executives and managers,
entrepreneurs, and ministers and religious workers. Others that
would be subject to labor market testing include professionals
with advanced degrees and baccalaureate degrees, and skilled
workers with 5 years specialized experience. The category for
unskilled workers would be eliminated. In place of the current
labor certification process, those immigrants subject to labor
market testing could only be admitted if their prospective
employer paid a substantial fee and demonstrated appropriate
attempts to find qualified workers. The fee would be used to
support private sector initiatives for the education and
training of U.S. workers. In addition, such immigrants would be
admitted on a conditional basis that would convert to permanent
status after 2 years if the immigrant was still employed by the
same employer at the attested original wage or higher.
The Commission recommended that 50,000 admission numbers be
allocated each year to refugees, not including the adjustment
to permanent resident status of aliens already present in the
U.S. who are granted asylum. Refugee admissions could exceed
50,000 in the case of an emergency, or through approval by
Congress.
H.R. 1915.--Title V of H.R. 1915 would have established the
following categories and worldwide levels for legal
immigration: family-sponsored (330,000) employment-based
(135,000), diversity (27,000) and humanitarian (70,000). These
worldwide levels would be effective only through FY 2005, by
which time Congress must review and reauthorize new legal
immigration levels. The review and reauthorization process
would repeat every five years thereafter.
Family-sponsored immigrants would include: (1) spouses and
unmarried children under 21 of U.S. citizens; (2) spouses and
unmarried children under 21 of lawful permanent residents; and
(3) parents of U.S. citizens. As a special provision, the
current backlog of spouses and children of permanent resident
aliens was to be reduced by an average of 110,000 per year over
a five-year period.
These provisions would give highest priority in the
immigration system to unification of the nuclear family, and
shift the emphasis from chain migration of extended families to
preservation of the nuclear family. The spouses and minor
children of U.S. citizens would continue to be admitted without
any numerical limits. The spouses and children of lawful
permanent residents would be the first family-preference
category, and the special backlog reduction provisions would
ensure that the backlog in this category is eliminated.
Parents of citizens being sponsored as immigrants would
have to acquire insurance to cover their health are costs and
potential long-term care needs. This requirement would be
imposed because of substantial evidence that many immigrant
parents come to the U.S. to take advantage of welfare benefits
for which they have not contributed.
Employment-based immigrants would include: (1) aliens with
extraordinary ability (visas not to exceed 15,000); (2) aliens
who are outstanding professors and researchers, or who are
multinational executives and managers (visas not to exceed
30,000, plus unused visas from category (1)); (3) aliens who
are professionals with advanced degrees, and aliens of
exceptional ability (30,000, plus unused visas from previous
categories); (4) professionals and skilled immigrants, who are
either professions with a baccalaureate degree and experience
or skilled workers with training and work experience (45,000
visas, plus unused visas from previous categories); (5)
investor immigrants (10,000 visas), who invest at least $1
million in a U.S. company that employees at least 10 workers
(with a pilot program through 1998 allowing for a $500,000
investment and the hiring of 5 workers); and (6) special
immigrants (5,000 visas). Experience requirements are increased
for immigrants in category (4): skilled workers are required to
have 4 years experience, and professionals with baccalaureate
degrees, 2 years.
Refugees and other humanitarian immigrants would be
admitted at an annual level of 70,000 (95,000 in 1996),
consisting of: refugees, 50,000 (75,000 in 1996), unless
Congress sets a higher number by law, or the President declares
an emergency; asylees, 10,000; and other humanitarian
immigrants, 10,000. The refugee consultation process would have
to take place by July 1 of the preceding fiscal year. The
refugee provisions were intended to accomplish several
important goals. First, to ensure the availability of a minimum
number of visas sufficient to meet the State Department's
anticipated demand for refugee resettlement. Second, to involve
Congress more directly in decisions to set refugee policy, by
setting a reasonable deadline for the consultation process and
requiring legislation to raise the refugee target except in
emergency situations. Third, to preserve flexibility by
permitting the President to admit additional refugees in the
case of an emergency (not merely an ``unforeseen'' emergency,
as under current law.)
A category for humanitarian visas is designed to meet the
need for a flexible, transparent category that will be
available for any specific in which admission of an alien is of
special humanitarian concern to the United States. This
category is specifically intended to replace the need for
special admission categories tailored to special interests, and
particularly to end the practice of admitting aliens on a
permanent basis through grants of parole under section
212(d)(5).
Title V also restricted the use of parole authority to
allow aliens to enter the U.S. to specific reasons that are
strictly in the public interest or are matters of urgent
humanitarian concern, such as for the prosecution of an lien,
to obtain an alien's testimony in a criminal proceeding, or to
permit an alien to visit a dying relative. This section was
intended to end the use of parole authority to create an ad hoc
immigration policy or to supplement current immigration
categories without Congressional approval.
Eligibility for Benefits and Sponsorship
Title VI of H.R. 1915 was designed to continue the long-
standing principle in U.S. immigration policy that immigrants
be self-reliant and not depend on the American taxpayer for
financial support. Current eligibility rules, unenforceable
financial support agreements, and poorly-defined public charge
provisions have undermined the tradition of self-sufficiency
among the immigrant community. As a result, the cost of the
American taxpayer of providing public benefits to immigrants
has been in the tens of billions of dollars every year.
Title VI specified that illegal aliens are not eligible for
most public benefits, makes enforceable the grounds for denying
entry or removing aliens who are or are likely to become public
charges, and makes those who agree to sponsor immigrants
legally responsible to support them.
In addition to making illegal aliens ineligible for means-
tested public benefits and government contracts, Title VI
required that applicants show one of six documents to prove
eligibility to receive benefits, and authorized State agencies
to require documentation of eligibility.
Title VI strengthened the grounds for inadmissibility as a
public charge by stating that a family-sponsored immigrant or a
nonimmigrant is inadmissible if the alien cannot demonstrate
that the alien's age, health, family status, education, skills,
affidavit of support, or a combination thereof make it unlikely
that the alien will become a public charge. Title VI also
strengthened the grounds for removal (deportation) of an alien
already in the U.S. as a public charge by extending the time
period within which such removal may occur to seven years from
the date of admission, provided the alien's public charge
status stems from cause arising before admission. The bill also
specified that an alien is considered to be a public charge if
the alien receives benefits under Supplemental Security Income,
Aid to Families with Dependent Children, Medicaid, Food Stamps,
State general assistance or Federal Housing Assistance for an
aggregate of twelve months within the seven-year period. More
flexible standards were established for battered spouses and
children.
Title VI specified that a sponsor's income and resources
are available to the sponsor alien for the purpose of
qualifying for public benefits. A legally binding affidavit of
support was created for those who wish to sponsor immigrants
into the U.S. Specific lengths of time were established for
deeming income and for the enforceability of the sponsor
contract, and specific requirements were established for an
individual to be a sponsor, including that the individual be
the same person who is sponsoring the alien for admission into
the U.S. and have an income of at least 200 percent of the
poverty level.
Facilitation of Legal Entry
Immigration reform not only must address the challenges of
illegal and legal immigration, but also must ensure that U.S.
ports of entry are capable of receiving the hundreds of
millions of foreign visitors who seek legitimate entry into our
country each year. Enhancing our enforcement capability at
land, air, and sea ports must go hand in hand with improving
the service functions at such ports. This is important first
because of the economic benefits brought to this country by
international commerce and travel, and second because smooth
functioning of our ports will enable enforcement resources to
be strategically deployed in order to maximize the prevention
of unauthorized entries into the U.S. In addition, curbing the
number of people who attempt to enter on fraudulent documents
should enable further streamlining of procedures for legitimate
travelers.
To this end, Title VII of H.R. 1915 required an increase in
both INS and Customs Service inspectors at land borders;
authorized further expansion of the commuter lane pilot
programs operated successfully at several land border crossing
points; mandated the operation of pre-inspection stations at 5
of the 10 foreign airports having the greatest number of
departures for the U.S.; and required the INS to expend funds
from the Immigration User Fee Account to train airline
personnel in the detection of fraudulent documents.
Skilled Nonimmigrants (H-1B) and Miscellaneous Provisions
Title VIII of H.R. 1915 included a number of miscellaneous
provisions, including measures to study document fraud related
to birth certificates, to make it easier to admit certain
children as ``orphans'' adopted by U.S. couples, and to enhance
communication between the INS and State and local governments
by overriding prohibitions against State and local officials
contacting INS.
Title VIII also addressed abuses which have recently
plagued the H-1B nonimmigrant program, while providing
regulatory relief for employers who do not abuse the program.
Title VIII required an employer to attest that it would not
fire and replace an American worker with an H-1B alien unless
the company were willing to pay the H-1B 110 percent of what
the fired American was making. In addition, penalties for
violations of the H-1B provisions would have been enhanced to
provide an additional disincentive to abuse. Among the changes,
maximum civil fines were increased fivefold and the period in
which a company cannot get visa petitions approved for foreign
workers could have been extended to a permanent ban. In
addition, Title VIII divided employers into those who are ``H-
1B dependent'' and ``non-H-1B dependent, and imposed more
stringent regulatory requirements on the former.
subcommittee consideration
On June 29, 1995, the Subcommittee on Immigration and
Claims held a hearing on H.R. 1915. Witnesses included T.
Alexander Aleinikoff, executive associate commissioner for
programs, U.S. Immigration and Naturalization Service; Vernon
Briggs, Jr., professor, School of Industrial Relations,
Cornell, University; Daryl R. Buffenstein, president, American
Immigration Lawyers Association; Diane Dillard, acting
assistant secretary for consular affairs, U.S. Department of
State; Austin T. Fragomen, Jr., chairman, American Council on
International Personnel, John R. Fraser, deputy administrator,
Wage and Hour Division, U.S. Department of Labor; Bill Frelick,
senior policy analyst, U.S. Committee for Refugees; Carl Hampe,
Paul, Weiss, Rifkind, Wharton & Garrison; Frank L. Morris, Sr.,
dean, Morgan State University; Anthony C. Moscato, director,
Executive Office for Immigration Review, U.S. Department of
Justice; Karen K. Narasaki, executive director, National Asian
Pacific American Legal Consortium; David North, independent
immigration researcher; Robert Rector, senior policy analyst,
Heritage Foundation; David Simcox, research director, Negative
Population Growth; Dan Stein, executive director, Federation
for American Immigration Reform; John Swenson, executive
director, Migration and Refugee Services, on behalf of the U.S.
Catholic Conference; Michael S. Teitelbaum, demographer and
member, U.S. Commission on Immigration Reform; Lawrence H.
Thompson, principal deputy commissioner, Social Security
Administration; and Raul Yzaguirre, president, National Council
of La Raza.
The Subcommittee on Immigration and Claims held a mark-up
on H.R. 1915 on July 13, through July 19, 1995. H.R. 1915 was
reported out of the Subcommittee on July 20, with instructions
to re-introduce the legislation as a clean bill. H.R. 2202 was
introduced on August 4, 1995.
More than 40 amendments were considered by the Subcommittee
in the course of its mark-up. None of these amendments altered
the basic structure of the legislation. The most important
substantive change was in the form of an amendment proposed by
Rep. McCollum (FL) regarding asylum reform. The amendment
reformed the asylum process by requiring that applications be
filed within 30 days of arrival in the U.S., unless
circumstances in alien's home country that relate to the
alien's eligibility for asylum have fundamentally changed. The
amendment also provided that an application not be accepted if
the alien may be removed to a safe third country in which the
alien would have access to a fair asylum process, and that
asylum applications be adjudicated on a specific timetable that
will result in completion of most cases within 6 months of
filing. This amendment codified certain regulatory changes to
the asylum system, as well as adding additional requirements to
ensure the integrity of the asylum process.
Other important substantive changes included the
elimination of section 203 of H.R. 1915, relating to expanded
civil asset forfeiture for aliens smuggling offenses, and the
addition of a provision to make inadmissible any alien who had
resided unlawfully in the U.S. for a period in excess of one
year (time starting after the date of enactment) unless the
alien had remained outside of the U.S. for a period of 10
years.
Other amendments included provisions relating to inservice
training for the border patrol; the admission in conditional
permanent resident status of certain grounds of exclusion from
the U.S.; limiting liability for certain technical violations
of paperwork requirements in the employment eligibility
verification system; requiring verification of status prior to
reimbursement for emergency medical services provided to
illegal aliens; increasing authorizations for enforcement of
immigration laws in the interior of the U.S.; and advising the
President to negotiate and renegotiate prisoner transfer
treaties.
full committee consideration
On August 4, 1995, H.R. 2202 was introduced by
Representative Lamar Smith and referred to the full Judiciary
Committee (where it should be considered in lieu of H.R. 1915).
H.R. 2202 also was referred to the Committee on National
Security, Government Reform and Oversight, Ways and Means, and
Banking and Financial Services, for a period to be subsequently
determined by the Speaker.
On September 19, 1995, H.R. 2202 was re-referred to the
Committee on the Judiciary, and in addition to the Committees
on Agriculture, Banking and Financial Services, Economic and
Educational Opportunities, Government Reform and Oversight,
National Security, and Ways and Means, for a period to be
subsequently determined by the Speaker.
On September 19, 20, 21, and 27, 1995, and on October 11,
12, 17, 18, and 24, 1995, the Committee on the Judiciary
marked-up H.R. 2202. Numerous amendments were adopted and, on
October 24, the Committee ordered, by a recorded vote of 23-10,
H.R. 2202 favorably reported to the House, as amended.
The Committee adopted 64 amendments to H.R. 2202 by voice
vote, and take roll call votes on an additional 38 amendments,
adopting 10 of these. Among the most important amendments were
the following:
Border Control.--Extended effective dates for new border
crossing card requirements; required immigrants to establish
proof of vaccination as a condition for entry.
Removal of Criminal and Illegal Aliens.--Changed
eligibility requirements for cancellation of removal to include
aliens not lawfully admitted to the U.S. and to limit grants of
cancellation of removal to 4,000 per year; modified waiver
under section 212(i) of the INA; provided additional exceptions
to the rule excluding aliens for 10 years if they have been
unlawfully present in the U.S. for more than 1 year; clarified
that stowaways and aliens interdicted at sea and brought to the
U.S. are to be subject to procedures for expedited removal,
including screening of asylum claims; provided specific pay
scale for immigration judges; provided for permanent exclusion
of aliens removed from the U.S. on account of having been
convicted on an aggravated felony; established new ground of
inadmissibility for aliens who have renounced U.S. citizenship
for the purpose of avoiding taxation; struck provisions
increasing penalties for carriers who bring illegal aliens into
the U.S.
Asylum Reform.--Modified provisions to eliminate direct
appeal from decisions of INS asylum officers to Federal courts
of appeal; extended deadline for filing of asylum applications;
extended refugee protection to aliens who have resisted
implementation of coercive population control measures.
Employer Sanctions and Verification.--Exempted employers of
less than 4 employees from requirement to take part in
electronic confirmation mechanism pilots; provided that
implementation of the confirmation mechanism shall be limited
to a series of pilot projects in 5 of the 7 States with the
highest estimated population of unauthorized aliens and that
such projects shall terminate not later than October 1, 1999,
unless extended by Congress; required the Attorney General to
submit annual reports on the pilot projects which may include
analysis of whether the mechanism is reliable and easy to use,
limits job losses due to inaccurate data, increases or
decreases discrimination, protects individual privacy, and
burdens employers; provided new effective date for amendments
reducing the number of documents that may be presented by
employees to establish identity and eligibility for employment;
exempted from civil or criminal liability the action of any
person taken in good faith reliance on information provided
through the employment eligibility confirmation mechanism;
provided that the confirmation mechanism shall confirm whether
an individual has presented a social security account number of
an alien identification number that is not valid for
employment; provided that operation of the confirmation
mechanism may be carried out by a nongovernmental entity
designated by the Attorney General; required that the
confirmation mechanism be designed to maximize reliability and
ease of use, to respond to all inquiries and to register when
such response is not possible; provided that if an employer
attempts to make an inquiry within the required 3 days of
employment and the confirmation mechanism has registered that
not all inquiries were responded to during that time, the
employer can meet requirements for making such inquiries and
qualify for the defense from liability extended to those who
use the confirmation mechanism, if the employer makes the
inquiry on the first subsequent working day in which the
confirmation mechanism registers no nonresponses; provided that
the confirmation mechanism shall provide a confirmation or
tentative nonconfirmation of an individual's employment
eligibility within 3 days of the initial inquiry and that in
the case of a tentative nonconfirmation, the Attorney General,
in consultation with the Commissioner of Social Security and
the Commissioner of the INS, shall provided an expedited time
period, not more than 10 days, within which final confirmation
or nonconfirmation must be provided; required that within 180
days of enactment, the Attorney General shall issue regulations
providing for the electronic storage of I-9 forms; and provided
that an employer's request for more or different documents than
are required under section 274A(b) of the INA shall constitute
an unfair immigration-related employment practice if done for
the purpose of discriminating.
Legal Immigration.--Created a new second employment-based
immigration preference for outstanding professors and
researchers and multinational executives and managers; restored
a diversity admissions category more restricted than that in
current law; provided a waiver from the requirement for labor
certification for certain aliens who are members of the
professions holding advanced degrees or aliens of exceptional
ability if such waiver is necessary to advance the national
interest in one of several specific areas; struck the
requirement that at least 50 percent of an immigrant's sons and
daughters are lawful permanent residents or citizens residing
in the United States in order for the immigrant to be admitted
as the parent of a United States citizen; created a category
for the admission as immigrants of the adult sons and daughters
of United States citizens and lawful permanent residents if
such immigrants are under age 26, never-married, childless, and
considered as dependents for Federal income tax purposes,
within set numerical limits; changed the experience
requirements for immigrants admitted as professionals and
skilled workers; provided that work experience obtained while
an alien is unauthorized to work in the United States shall not
count to meet the experience requirements for immigrants
admitted as professionals and skilled workers; provided for the
admission as immigrants of certain adult disabled children of
United States nationals and lawful permanent residents;
provided that not less than 25,000 immigrant visas will be
available for the parents of United States citizens; struck
provisions for the adjustment of visa numbers for professionals
and skilled workers to offset excess family admissions;
provided for use of parole authority to enable prosecution of
alien criminals in U.S. courts.
Public Benefits.--Removed from the prohibition on receipt
of public benefits by illegal aliens family violence services,
school lunch and child nutrition benefits, and emergency
relief; modified rules regarding attribution of sponsor's
income to immigrant; provided that active-duty military may
sponsor an immigrant if their incomes is 100 percent of the
poverty level; provided that if a sponsor is not able to meet
income requirements, that a third party willing to provide
sponsorship may sign the affidavit of support, with joint and
several liability for the sponsored alien.
consideration by the house
On March 4, 1996, the Committee favorably reported H.R.
2202, as amended, to the House. (H. Rept. 104-469, part 1).
On March 7, 1996, H.R. 2202 was reported favorably to the
House, as amended, by the Committee on Government Reform and
Oversight. (H. Rept. 104-469, part 2). On March 8, 1996, H.R.
2202 was reported favorably to the House, as amended, by the
Committee on Agriculture (H. Rept. 104-469, part 3), and the
Committees on Banking and Financial Services, Economic and
Educational Opportunities, National Security, and Ways and
Means were discharged from further consideration of H.R. 2202.
On a later date (March 21, 1996) a supplemental report to
accompany H.R. 2202 was filed in the House by the Committee on
Agriculture. (H. Rept. 104-469, part 4). The Committee on
Agriculture amended H.R. 2202 to include a program for the
admission of temporary ``guest workers'' to be employed in the
agricultural sector.
On March 14, 1996, the Committee on Rules reported H. Res.
384, the rule providing for the consideration of H.R. 2202. (H.
Rept. 104-483). On March 19, 1996, the House adopted the rule
by voice vote (after agreeing to order the previous question on
the rule by a recorded vote of 233-152). The rule provided for
the consideration of H.R. 2202 without the amendments made by
the Committee on Agriculture. The rule also included an
amendment that made participation in the pilot programs for the
new employment verification mechanism voluntary for employers.
On March 19, 20 and 21, 1996, H.R. 2202 was considered by
the House. Numerous amendments were adopted. On March 21, 1996,
the House rejected, by a recorded vote of 188-231, a motion to
recommit H.R. 2202 to the Committee on the Judiciary with
instructions. The House then passed H.R. 2202 as amended by a
recorded vote of 333-87.
The most significant amendment, adopted by the House on a
vote of 238-183, struck the provisions in Title V relating to
reform of the family-preference and employment-based legal
immigration categories, and to reform of refugees, parole, and
humanitarian admissions. Another significant amendment, adopted
on a vote of 257-163, authorized States to deny public
education benefits to aliens not lawfully present in the U.S.
Other significant amendments: allowed for the deputization
by the Attorney General of State and local authorities to
assist in immigration enforcement functions; clarified
provisions regarding the removal of stowaways; tightened
waivers of deportation available to deportable aliens who have
committed crimes; restored provisions parallel to current INA
section 243(h) (withholding of deportation); permitted the
early deportation of non-violent offenders prior to completion
of their prison terms, with stiff penalties for re-entry into
the U.S.; permitted Federal reimbursement for costs of
incarcerating criminal aliens to be paid to counties and
municipalities as well as to States; extended the deadline for
filing asylum claims to 180 days; clarified the eligibility
requirements for aliens to receive public housing benefits;
established certification requirements for foreign health care
workers admitted to the U.S.; clarified affidavit of support
requirements for joint and several liability; exempted Head
Start from list of benefits barred to illegal aliens; required
the Comptroller General to evaluate on an annual basis the
Administration's efforts to deter illegal entries into the
U.S.; provided that worksite enforcement of employer sanctions
should be a top priority of the INS; and permitted the
adjustment to lawful permanent resident status of certain
natives of Hungary and Poland who had been paroled into the
U.S.
senate and conference consideration
On May 2, 1996, the Senate passed H.R. 2202 (with an
amendment substituting the language of S. 1664 as amended by
the Senate) by a recorded vote of 97-3.
On May 13, 1996, the Senate insisted on its amendment and
requested a conference, appointing as conferees: Senators
Hatch, Simpson, Grassley, Kyl, Specter, Thurmond, Kennedy,
Leahy, Simon, Kohl, and Feinstein.
On September 11, 1996, the House disagreed to the Senate
amendment and agreed to a conference, appointing as conferees:
Representatives Hyde, Smith of Texas, Gallegly, McCollum,
Goodlatte, Bryant of Tennessee, Bono, Goodling, Cunningham,
McKeon, Shaw, Conyers, Frank, Berman, Bryant of Texas, Becerra,
Martinez, Green, and Jacobs.
On September 11, 1996, the House rejected, by a recorded
vote of 181-236, a motion to instruct the conferees on the part
of the House.
On September 24, 1996, the conferees agreed to file a
conference report, and the report was filed. (H. Rept. 104-
828).
On September 24, 1996, the House Committee on Rules
reported a rule (H. Res. 528) providing for the consideration
of the conference report on H.R. 2202, waiving all points of
order. (H. Rept. 104-829).
On September 25, 1996, the House, by a recorded vote of
254-165, adopted the rule; by a recorded vote of 179-247,
rejected a motion to recommit H.R. 2202 to the conference
committee with instructions; and by a recorded vote of 305-123,
agreed to the conference report on H.R. 2202.
On September 26, 1996, the Senate considered the conference
report on H.R. 2202, renamed the ``Illegal Immigration Reform
and Immigrant Responsibility Act of 1996.''
final passage and enactment
On September 28, 1996, a modified version of the conference
report on H.R. 2202 was included as Division C of the
conference report filed in the House on H.R. 3610 (making
fiscal year 1997 omnibus consolidated appropriations) (H. Rept.
104-863), and by a recorded vote of 370-37 (with 1 present),
agreed to that conference report.
On September 30, 1996, the Senate, by voice vote, agreed to
the conference report on H.R. 3610, and the measure was
approved by the President. (Pub. L. 104-208).
Following is a summary of the legislation as amended by the
Conference Report and by Pub. L. 104-208:
Title I authorizes 5,000 new Border Patrol agents and
directs their deployment to border sectors with the highest
levels of illegal immigration. The title authorizes
improvements of barriers to deter illegal border-crossing,
including a 14-mile triple fence and roads from the Pacific
Ocean eastward. It requires improvement of security features on
border crossing identification cards to counter fraud. It
creates a new civil penalty for illegal entry into the United
States and authorizes funds for the fingerprinting of all
illegal aliens apprehended anywhere in the U.S. Additional land
border inspectors are authorized to facilitate legal entry into
the U.S. The title expands preinspection at foreign airports of
passengers bound for the U.S. It authorizes 900 new INS
investigators to enforce laws against alien smuggling and
against the knowing employment of illegal aliens, and an
additional 300 investigators to track down and apprehend visa
overstayers. Finally, the title grants new authority for the
Attorney General to enter into agreements with State or local
governments for the use of State or local law enforcement
officers to apprehend, detain, and transport illegal aliens.
Title II extends RICO (racketeering) liability to alien
smuggling and document fraud offenses. It expands criminal
liability for alien smuggling and document fraud and increases
penalties for both. New civil liability and penalties for
document fraud are established. The title establishes new
criminal penalties for those who prepare false applications for
immigration benefits or who make false claims to U.S.
citizenship.
Title III expands and increases the bars to re-entry into
the U.S. for those who violate immigration laws by illegally
entering or overstaying visas. The title repeals the ``entry
doctrine,'' which now gives illegal border-crossers expanded
rights in deportation proceedings. It overhauls all provisions
relating to apprehension, adjudication, and removal in the case
of illegal aliens. Exclusion and deportation procedures are
merged into one form of removal proceeding. Aliens who are
present in the U.S. without having been lawfully admitted will
be treated as applicants for admission and will have the burden
of proof in immigration court proceedings. The title narrows
eligibility for discretionary relief from removal and places
strict limits on voluntary departure to ensure that aliens
actually leave the country. It limits the appealability of
removal orders, especially in the case of criminal aliens and
those seeking discretionary relief from removal. It mandates
detention of aliens ordered removed and requires their removal
from the country within 90 days. The title mandates the
detention of most criminal aliens pending removal proceedings
and authorizes an increase in INS detention space to 9,000 beds
(and requires periodic reports to Congress on use of detention
space and the need for additional space). It broadens the
definition of ``conviction'' for immigration law purposes to
include all aliens who have admitted to or been found to have
committed crimes. This will make it easier to remove criminal
aliens, regardless of specific procedures in States for
deferred adjudication or suspension of sentences. Finally, the
title establishes civil penalties for those who fail to depart
under order of removal, and enhances existing penalties for
failure to depart, illegal entry, and passport and visa
offenses.
Title IV establishes three pilot programs, voluntary for
most private employers, to enhance the ability of employers to
confirm the identity and employment eligibility of new workers.
All pilot programs are based on expeditious verification
through the cross-checking of new employees' names and social
security numbers (and INS-issued numbers) against U.S.
government records. The basic pilot program will operate in at
least five of the seven States with the highest populations of
illegal aliens. Of the other two programs, one waives certain
verification requirements when new employees attest to being
U.S. citizens, and one is based on the use of machine-readable
documents. These last two pilots will operate in certain of
those States which issue identification documents with
enumerated features. The pilot programs will lapse after four
years of operation unless reauthorized by Congress. The title
allows employers the opportunity to correct without penalty
``paperwork'' errors committed in complying with the employment
eligibility verification procedures contained in section 274A
of the Immigration and Nationality Act. It reduces the number
and types of documents that new employees may present to
employers in complying with section 274A. Finally, the title
limits national origin ``discrimination'' penalties against
employers who ask new employees to present more than the
documents minimally-required. Employers would have to intend to
discriminate to be liable.
Title V requires sponsors of (family-preference) immigrants
to sign legally-enforceable affidavits to provide financial
support if needed. The affidavits will be enforceable as
contracts until the immigrants sponsored have worked for a
certain period of time or become citizens. The title authorizes
government agencies and government-funded entities to sue
sponsors for reimbursement of means-tested public benefits
provided to immigrants. It requires that sponsors either
demonstrate an income of at least 125% of the poverty level or
find co-sponsors who do and who will agree to the same
financial obligations. Finally, the title strengthens
verification requirements for public housing benefits and
streamlines procedures for removing ineligible aliens from
taxpayer-subsidized housing.
Title VI accomplishes a variety of goals, including
streamlining asylum procedures and requiring that an asylum
claim be presented within one year of an alien's arrival in the
U.S. (unless the applicant demonstrates changed conditions or
extraordinary circumstances). An amendment to the refugee
definition accords recognition to persecution for resistance to
coercive population control methods. The title improves the
Visa Waiver Pilot Program and extends its operation to
September 30, 1997. It also provides incentives to States to
develop counterfeit and fraud-resistant birth certificates and
driver's licenses, and provides for the development of a
prototype counterfeit-resistant social security card.
The ``Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1995''
The Committee was sequentially referred H.R. 927 which took
proactive steps to encourage an early end to the Castro regime
in Cuba, directed the President to prepare to support
transition and democratic governments in Cuba, and provides
additional protection for the rights of U.S. nationals whose
property has been illegally confiscated by the Cuban
government. A number of the bill's provisions came under the
jurisdiction of the Subcommittee on Immigration and Claims.
Title III of the bill provided that any person who, at a
certain point after the enactment of the bill, traffics in
property confiscated by the post-revolution Cuban government
shall be liable to any United States national who owns the
property, including a property owner who was not a U.S.
national at the time of confiscation (Action in U.S. courts can
be brought only for claims of over $50,000.). Title IV provided
that the Secretary of State shall deny a visa to, and the
Attorney General shall exclude from the United States, any
alien (and certain family members) who after the date of
enactment of H.R. 927 confiscates, directs or oversees the
confiscation of, converts, or traffics in property owned by a
U.S. national. Also, certain officers, principals, and
shareholders of entities involved in confiscation or
trafficking (and certain family members) shall be denied visas
and be excludable. These provisions of H.R. 927 will safeguard
the rights of American nationals and facilitate their being
made whole. They are required because the current international
judicial system lacks fully effective remedies for the wrongful
confiscation of property and for unjust enrichment from the use
of wrongfully confiscated property by governments and private
entities at the expense of the rightful owners. Also, these
provisions will discourage foreign investors from taking up the
Cuban government's offer of the opportunity to purchase,
manage, or enter joint ventures using property and assets
confiscated from U.S. nationals.
H.R. 927 was referred to the Committee on International
Relations, and in addition to the Committee on the Judiciary
and to the Committees on Ways and Means, and Banking and
Financial Services, for a period to be subsequently determined
by the Speaker.
On July 24, 1995, The Committee on International Relations
reported H.R. 927 favorably as amended to the House. (H. Rept.
104-202, part 1).
On August 4, 1995, the Committees on Ways and Means, the
Judiciary, and Banking and Financial Services were discharged
from further consideration of H.R. 927.
On September 19, 1995, the Committee on Rules granted a
modified closed rule providing for the consideration of H.R.
927 (H. Rept. 104-253), and on September 20, 1995, the House,
by a recorded vote of 304-118, adopted the rule.
On September 20 and 21, 1995, H.R. 927 was considered by
the House, and passed as amended by a recorded vote of 294-130
on September 21.
On October 11, 12, 13, 17, 18, and 19, 1995, H.R. 927 was
considered by the Senate.
On October 19, 1995, the Senate passed H.R. 927 as amended
by a recorded vote of 74-24.
On November 7, 1995, the House disagreed to the Senate
amendment and requested a conference, appointing as conferees:
Representatives Gilman, Burton, Ros-Lehtinen, King, Diaz-
Balart, Hamilton, Gejdenson, Torricelli, and Menendez.
On December 14, 1995, the Senate insisted on its amendment
to H.R. 927 and agreed to a conference, appointing as
conferees: Senators Helms, Coverdell, Thompson, Snowe, Pell,
Dodd, and Robb.
On March 1, 1996, the conference report on H.R. 927 was
filed in the House by Representative Gilman. (H. Rept. 104-
468).
On March 5, 1996, the Senate agreed, by a recorded vote of
74-22, to the conference report on H.R. 927.
On March 5, 1996, a rule providing for the consideration of
the conference report on H.R. 927, was reported. (H. Rept. 104-
470), and on March 6, 1996, the House adopted the rule by a
recorded vote of 347-67.
On March 6, 1996, the House, by a recorded vote of 336-86
(with 1 present), agreed to the conference report on H.R. 927.
On March 12, 1996, the measure was approved by the
President. (Pub. L. 104-114).
A Bill Extending the Period of Stay in the United States for Certain
Nurses
Consistent with the Immigration Nursing Relief Act of 1989,
the INS stopped accepting petitions for nonimmigrant status
under the ``H-1A'' visa program (under which aliens could come
to the United States to perform services as registered nurses)
after September 1, 1995. Because of a continuing nursing
shortage in certain rural and inner-city areas of the United
States, S. 2197 allowed aliens who entered the U.S. under the
H-1A program, and were within the U.S. on or after September 1,
1995, and on S. 2197's date of enactment, to stay in the U.S.
and work as registered nurses through September 30, 1997.
On October 3, 1996, S. 2197 passed the Senate, as amended,
by unanimous consent.
On October 4, 1996, S. 2197 passed the House by unanimous
consent.
On October 11, 1996, S. 2197 was approved by the President.
(Pub. L. 104-302).
Amendment to the Immigration and Nationality Act to update references
in the classification of children for purposes of United States
immigration laws
Under section 101(b) of the Immigration and Nationality Act
prior to the enactment of S. 457, a ``child'' was defined, in
part, by reference to whether the child was ``legitimate'' or
``illegitimate.'' This usage reflected an understanding that
the terms ``legitimate'' and ``illegitimate'' were synonymous,
respectively, with ``born in wedlock'' and ``born out of
wedlock.'' Since the enactment of section 101(b), many foreign
nations have removed the distinction in their laws between
``legitimate'' and ``illegitimate'' children; thus, children
born out of wedlock in such nations were deemed to be
``legitimate'' for purposes of section 101(b). To maintain the
distinction (which is particularly important in cases involving
the release for adoption of a foreign child) this legislation
replaced the terms ``legitimate child'' and ``illegitimate
child'' with ``child born in wedlock'' and ``child born out of
wedlock'' in section 101(b).
A provision similar to this legislation was introduced as
part of H.R. 1915 and approved by the Subcommittee on July 20,
1995. The provision also was included in H.R. 2202, introduced
on August 4, 1995, and approved by the Committee on October 24,
1995. This legislation, S. 457, originated in the Senate, where
it was reported favorably (no written report) by the Senate
Judiciary Committee on June 22, 1995, and passed on July 17,
1995. The legislation was referred to the House Committee on
the Judiciary on July 18, 1995. The Committee was discharged
from further consideration on October 30, 1995, and the
legislation was passed by the House of Representatives on the
same day. The legislation was signed into law on November 15,
1995 (Public Law 104-51).
``Human Rights, Refugee, and Other Foreign Relations Provisions Act of
1996''
H.R. 4036 requires the President to submit a semi-annual
report to the appropriate congressional committees concerning
the methods employed by the Government of Cuba to enforce the
September 1994 agreement to restrict the emigration of Cubans
to the United States and the treatment of persons returned to
Cuba pursuant to the United States-Cuba agreement of May 1995;
extends provisions regarding the adjudication of applicants for
refugee status (the ``Lautenberg Amendment'') through September
30, 1997; requires that in carrying out cultural and
educational exchange programs, the United States Information
Agency (USIA) shall provide opportunities for participation by
human rights and democracy leaders in countries such as China,
Vietnam, Cambodia, Tibet, and Burma; requires that the USIA
shall establish programs of educational and cultural exchange
between the United States and the people of Tibet, and that for
fiscal year 1997, the USIA shall make available at least 30
scholarships for Tibetan students and professionals who are
outside Tibet, and at least 15 scholarships to Burmese students
and professionals who are outside Burma; amends section 116(d)
of the Foreign Assistance Act of 1961 to require that reports
regarding human rights conditions in foreign nations include
information regarding the votes of each member of the United
Nations Commission on Human Rights on country-specific and
thematic matters, and the extent to which each country has
extended protection to refugees, including the provision of
first asylum and resettlement; prohibits the President from
providing specified economic or military assistance to the
Government of Mauritania unless the President certifies to
Congress that such Government has taken specific steps to
eliminate chattel slavery; and authorizes the Secretary of
Education to issue grants to the Claiborne Pell Institute for
International Relations and Public Policy, the George Bush
School of Government and Public Service, and the Edmund S.
Muskie Foundation.
The legislation was introduced on September 5, 1996, and
referred to the Committee on International Relations and the
Committee on the Judiciary. On September 25, 1996, the two
committees were discharged from further consideration of H.R.
4036. The legislation passed the House on September 25, 1996
under suspension of the rules, with the title amended to read
``Making certain provisions with respect to internationally
recognized human rights, refugees, and foreign relations.'' The
legislation was passed by the Senate with amendments on October
3, 1996. The House agreed to the Senate amendments on October
4, 1996. The legislation was signed into law on October 19,
1996 as Public Law 104-319.
international law
``War Crimes Act of 1996''
H.R. 3680 carries out the international obligations of the
United States under the four Geneva Conventions for the
Protection of Victims of War, dated August 12, 1949 (and
ratified by the United States on July 14, 1955), to provide
criminal penalties for certain war crimes. The bill provides
that whoever, whether inside or outside the United States,
commits a grave breach of the Geneva Conventions (where the
perpetrator or the victim is a member of the armed forces of
the United States or a national of the United States) shall be
fined or imprisoned for life or any term of years, or both, and
if death results to the victim, shall also be subject to the
penalty of death.
On November 7, 1995, Representative Walter B. Jones, Jr.,
introduced H.R. 2587, the ``War Crimes Act of 1995.''
On June 12, 1996, the Subcommittee on Immigration and
Claims held a hearing on H.R. 2587. Witnesses included Michael
Matheson, principal deputy legal advisor, U.S. Department of
State; John H. McNeil, senior deputy general counsel
(international affairs and intelligence), U.S. Department of
Defense; the Honorable Robinson O. Everett, senior judge, U.S.
Court of Appeals for the Armed Forces, and professor of laws at
the Center on Law, Ethics, and National Security at the Duke
University School of Law; Monroe Leigh, Steptoe and Johnson;
and Mark S. Zaid, Law Office of Mark S. Zaid.
On June 19, 1996, Representative Jones introduced H.R.
3680, the ``War Crimes Act of 1996,'' the successor bill to
H.R. 2587.
On June 27, 1996, the Subcommittee on Immigration and
Claims by voice vote ordered H.R. 3680 favorably reported to
the full Judiciary Committee. On July 16, 1996, the Committee
on the Judiciary, by a recorded vote of 23-2, ordered H.R. 3680
favorably reported to the House.
On July 24, 1996, H.R. 3680 was reported favorably to the
House. (H. Rept. 104-698), and on July 29, 1996, H.R. 3680
passed the House by voice vote under suspension of the rules.
On August 2, 1996, H.R. 3680 passed the Senate by voice
vote.
On August 21, 1996, H.R. 3680 was approved by the President
as Public Law 104-192.
claims
Reimbursement of White House Travel Office Employees Legal Expenses and
Related Fees
On February 29, 1996, the Subcommittee on Immigration and
Claims considered H.R. 2937, a bill for the reimbursement of
legal expenses and related fees incurred by former employees of
the White House Travel Office.
H.R. 2937 allowed for the reimbursement of the legal
expenses and related fees incurred by the former employees of
the White House Travel Office whose employment in that office
was terminated on May 19, 1993. Upon submission of
documentation verifying the former employees legal expenses and
related fees incurred with respect to that termination, the
Secretary of the Treasury could reimburse such costs out of
money not otherwise appropriated.
On May 19, 1993, all seven White House Travel Office
employees were fired. The White House indicated that the
firings were predicated by an audit performed pursuant to the
Vice President's National Performance Review. According to the
White House, the audit revealed mismanagement and unacceptable
accounting practices within the Travel Office. At that time,
the White House also stated that the FBI was looking into
possible criminal violations by the seven employees. Several
separate investigations uncovered a concerted effort by former
associates and friends of the President and First Lady to
pursue travel and aviation business controlled within the White
House. As a result of the accusations put forward by these
associates and the subsequent FBI investigation, the seven
Travel Office employees suffered public and private humiliation
and incurred extensive legal expenses in their attempt to
defend themselves.
In October 1993, a provision was placed in the
Transportation Appropriations bill to pay $150,000 for the
legal bills of the five White House Travel Office employees who
were placed on administrative leave and subsequently
transferred to other positions within the Federal government.
However, the $150,000 was not enough to completely cover the
five employees' legal expenses, and no provision was made for
the two other employees' legal expenses, because they were
still under investigation.
After the conclusion of the investigations of the two other
employees, neither was found guilty of any of the charges put
forth by the White House and the Department of Justice.
The issue here was not whether attorneys fees should be
paid for any individual fired for cause and later exonerated.
If false accusations by certain individuals who misused their
authority within the White House had not been made, there would
have been no FBI investigation and none of the attorneys fees
would have been incurred.
In May 1994, the General Accounting Office (GAO) sent their
report to Congress on White House Travel Office operations. In
that report, GAO indicated that while senior White House
officials said the terminations were based on ``findings of
serious financial management weaknesses, we noted that
individuals who had personal and business interests in the
Travel Office created the momentum that ultimately led to the
examination of the Travel Office operations.'' GAO also cited
the White House Management Review's recognition that ``the
public acknowledgment of the criminal investigation had the
effect of tarnishing the employees' reputations, and the
existence of the criminal investigation caused the employees to
retain legal counsel, reportedly at considerable expense.''
On the basis of these facts, the Committee felt in the
interest of equity, these particular individuals' attorneys
fees should be reimbursed by the United States.
There was discussion as to what type of precedent was being
set by the payment of attorneys fees in this bill. It was made
clear that it was not the Committee's intent that this
legislation set a precedent that the attorney fees of any
individual fired for cause and later exonerated should be paid.
This was a unique case and the Committee believed each monetary
claim against the United States should be judged on a case-by-
case basis. Another point of discussion was the definition of
attorneys fees. The Committee's intent was that the guidelines
for appropriate attorneys fees set out by Judge George
MacKinnon, Presiding Judge of the U.S. Court of Appeals for the
District of Columbia Circuit, Division for the purpose of
Appointing Independent Counsels, in several independent counsel
attorneys fees decisions should be applied to this situation.
Therefore, the legislation used the term ``attorney fees and
costs'', the term that Judge MacKinnon was called upon to
interpret in the independent counsel cases. This also conformed
with the standards used by the Department of Transportation
General Counsel in determining appropriate attorneys fees when
disbursing the previously appropriated $150,000 to five of the
employees.
On February 29, 1996, the Subcommittee on Immigration and
Claims met and ordered reported the bill, H.R. 2937, by a voice
vote. On March 12, 1996, the Committee met and ordered reported
the bill H.R. 2937 with amendment by voice vote. Under
suspension of the rules, the House passed the bill, as amended,
on March 19, 1996, by a vote of 350-43.
H.R. 2937 was placed on the Senate Calendar on April 25,
1996. The Senate attempted to complete consideration on the
bill without success on May 3, 6, 7, 8, 9, 13, and 14, 1996.
On September 28, 1996, the language of H.R. 2937, as
modified, was placed in the conference report (H. Rept. 104-
863) on H.R. 3610, Making Omnibus Consolidated Appropriations
for Fiscal Year 1997. On that same day, the House agreed to the
conference report by a vote of 370-37 with 1 present. On
September 30, 1996, the Senate agreed to the conference report
by voice vote, and the President signed the bill, as Public Law
104-208.
Pueblo of Isleta Indian Land Claims
The Committee reported H.R. 740 which permits the Pueblo of
Isleta to file a claim in the United States Court of Federal
Claims for certain aboriginal lands acquired from the Tribe by
the United States. The Court's jurisdiction would apply only to
claims accruing on or before August 13, 1946, as provided in
the Indian Claims Commission Act (ICCA).
The Pueblo of Isleta Indian Tribe asserted that a land
claim was never filed by the tribe based on aboriginal use and
occupancy under the ICCA because it received erroneous advice
regarding the types of claims that could be filed. Tribal
officials were told by the Bureau of Indian Affairs (BIA) that
specific documents must be produced in order to mount a claim,
and were not informed that a claim could be based on aboriginal
use and occupancy. As a result, the tribe filed only a limited
and unsuccessful claim in 1951 seeking compensation for some
17,000 acres that were covered by specific land grant
documents. The tribe states that no claims were filed based on
aboriginal use due to the misdirected advice of the BIA and the
tribal officials' lack of familiarity with the provisions of
the ICCA.
The Pueblo of Isleta Tribe sought the opportunity to
present the merits of its land claims, which otherwise would be
barred as untimely, in the United States Court of Federal
Claims. The tribe cited numerous precedents for conferring
jurisdiction under similar circumstances, such as with the case
of the Zuni Indian Tribe in 1978.
On May 23, 1996, the Subcommittee on Immigration and Claims
ordered reported the bill, H.R. 740, by a voice vote. On June
11, 1996, the Committee ordered reported favorably the bill
without amendment by voice vote.
On July 29, 1996, H.R. 740 passed the House under
suspension of the rules by voice vote. The Senate passed H.R.
740 by unanimous consent on September 4, 1996. The bill was
signed by the President on September 18, 1996, as Public Law
104-198.
Action on Other Public Legislation
IMMIGRATION
Membership of U.S. Commission on Immigration Reform
The purpose of H.R. 962 was to amend section 141(a)(1) to
expand the membership of the Commission on Immigration Reform
from 9 members to 11 members. Also, the bill designated
Hamilton Fish, Jr., former Member of Congress and Ranking
Minority Member of the Committee on the Judiciary of the House
of Representatives and Romano Mazzoli, former Member of
Congress and Chairman of the Subcommittee on International Law,
Immigration, and Refugees of the Committee on the Judiciary of
the House of Representatives to serve on the Commission.
H.R. 962 was introduced by the Chairman of the Subcommittee
on Immigration and Claims, Congressman Lamar Smith, on February
15, 1995. On March 16, 1995, the Subcommittee on Immigration
and Claims ordered the bill favorably reported to the full
Judiciary Committee, without amendment.
On March 22, 1995, the Committee on the Judiciary ordered
the bill favorably reported to the full House, without
amendment. The bill was formally reported on June 8, 1995 (H.
Rept. 104-135).
Also, on June 8, 1995, H.R. 962 was brought to the House
floor under Suspension of the Rules and passed the House with a
technical amendment.
H.R. 962 was referred to the Senate Committee on the
Judiciary which took no action on the legislation.
Authorize States to Deny Public Education Benefits to Illegal Alien
Children
The purpose of H.R. 4134 was to authorize States to deny
public education benefits or to charge tuition to aliens not
lawfully present in the United States who are not enrolled in
public schools during the period beginning September 1, 1996,
and ending July 1, 1997. The measure was introduced on
September 24, 1996, by Congressman Elton Gallegly, a member of
the Subcommittee on Immigration and Claims.
On September 24, 1996, the Committee on Rules, granted a
closed rule providing for the consideration of H.R. 4134. (H.
Res. 530)
On September 25, 1996, the House adopted the rule (H. Res.
530).
On September 25, 1996, the Committee on the Judiciary and
the Committee on Economic and Educational Opportunities were
discharged from further consideration of the bill, and the
House passed the measure, 254-175.
H.R. 4134 was ordered placed on the Senate Calendar but no
further action was taken in the 104th Congress.
A Bill Providing for Certain Changes with Respect to Requirements for a
Canadian Border Boat Landing Permit
Currently, American small vessel operators and their
passengers returning to the United States from Canadian waters
must either enter through a port of entry or possess I-68 forms
(Canadian Border Boat Landing Permit) issued by the INS for $16
and good for one year. In order not to inhibit recreational and
tourist boating excursions from American shores which often
cross into Canadian waters while at the same time not
facilitating unauthorized entry into the United States, H.R.
4165 provides that small boat passengers (who are neither
owners nor operators) on short trips between the U.S. and
Canada need not obtain permits if carrying U.S. passports for
the duration of their trips.
On September 25, 1996, H.R. 4165 was introduced by
Representative Hoke. The bill was referred to the Committee on
the Judiciary.
On September 28, 1996, the Committee on the Judiciary was
discharged from further consideration of H.R. 4165.
Also, on September 28, 1996, H.R. 4165 as amended was
called up by the House under suspension of the rules. The bill
passed the House by voice vote.
No further action was taken on H.R. 4165 during the 104th
Congress.
To Confer Honorary Citizenship of the United States On Agnes Gonxha
Bojaxhiu, Also Known as Mother Teresa
The Committee considered H.J. Res. 191--to confer honorary
United States citizenship upon Agnes Gonxha Bojaxhiu, also
known as Mother Teresa, in recognition of her many humanitarian
efforts around the world.
Honorary United States citizenship has only been bestowed
on individuals three times in our history. As stated by the
Committee in the past, any decision to grant honorary
citizenship is unique and cannot be treated as a precedent.
``Honorary citizenship'' is a symbolic gesture. It does not
grant any additional legal rights in the United States or in
international law. It also does not impose additional duties or
responsibilities, in the United States or internationally, on
the honoree.
This resolution contained statements defining the
extraordinary act of conferring honorary citizenship and
acknowledging the many efforts made by Mother Teresa which are
the basis for granting her honorary United States citizenship.
The resolution acknowledged Mother Teresa's tireless work
with orphaned and abandoned children, the poor, the sick, and
the dying; that she founded the Missionaries of Charity in
1950, and has taken in those who have been rejected as
``unacceptable'' and cared for them when no one else would,
regardless of their race, color, creed, or condition. The
membership of her congregation has several thousand sisters and
brothers around the world working with the poor, orphaned,
disabled, sick, and dying to provide them with sustenance,
medical assistance and education.
This resolution further noted that Mother Teresa has
received numerous honors, including the 1979 Nobel Peace Prize
and the 1985 Presidential Medal of Freedom.
Mother Teresa has worked in areas all over the world,
including the United States, to provide comfort to the world's
neediest. She has affirmed more so than any other single person
of our age, and as few persons have throughout the course of
human history, the intrinsic value and dignity of every human
life.
Mother Teresa through her Missionaries of Charity has
established many soup kitchens, emergency shelters for women,
shelters for unwed mothers, shelters for men, after-school and
summer camp programs for children, homes for the dying, prison
ministry, nursing homes, and shut-in ministry within the United
States.
For all of the aforementioned reasons, the Committee
believed it was appropriate to bestow upon Mother Teresa our
country's highest honor.
On September 11, 1996, the Committee ordered reported
favorably the joint resolution H.J. Res. 191, without amendment
by voice vote. On September 17, 1996, under suspension of the
rules, the House passed the resolution, as amended, by a vote
of 405-0.
On September 18, 1996, the Senate passed H.J. Res. 191. The
President signed the resolution into law as Public Law 104-218
on October 1, 1996.
CLAIMS
``Ricky Ray Hemophilia Relief Fund Act of 1996''
On September 19, 1996, the Subcommittee on Immigration and
Claims held a hearing on H.R. 1023--the ``Ricky Ray Hemophilia
Relief Fund Act of 1995''.
H.R. 1023, the ``Ricky Ray Hemophilia Relief Fund Act of
1995'': 1) found that the Federal government failed to fulfill
its responsibility to properly regulate the blood-products
industry, and thus was accountable for individuals exposure to
the Acquired Immune Deficiency Syndrome (AIDS) virus; and 2)
provided ``compassionate payments'' for claims by individuals
with blood-clotting disorders, such as hemophilia, who
contracted human immunodeficiency virus (HIV) due to
contaminated blood products.
The bill would establish a $1 billion ``Ricky Ray
Hemophilia Relief Fund,'' which would fund the payments. Each
eligible individual would receive a $125,000 payment. The
following persons would be eligible for this payment: (1) those
with a blood-clotting disorder who were treated with blood-
clotting agents at any time during the period beginning on
January 1, 1980 and ending on December 31, 1987; (2) those who
are the lawful spouses of persons described in (1)--or a former
lawful spouse who was a lawful spouse of a person described in
(1) at any time after such person was treated with blood-
clotting agents during the 1980-1987 period; or (3) those who
acquired the HIV infection through perinatal transmission from
a parent who is an individual described in (1) or (2). In the
case of a deceased individual, payment shall be made to the
estate or to the surviving spouse, children, or parents, in
that order.
An estimated 8,000 to 10,000 people with hemophilia were
infected with HIV in the late 1970s and early 1980s. H.R. 1023
was based on the belief that the government failed in its
regulatory responsibility to protect the blood supply, and
therefore contributed to the HIV infection of the hemophilia
community and their families.
On July 27, 1982, the Department of Health and Human
Services held an open forum to discuss whether three cases of
Pnumocystic carinii pneumonia reported in hemophilia A patients
were related to the opportunistic infections seen in gay men.
Participants in that meeting included the Center for Disease
Control, the Food and Drug Administration, blood products
industry representatives, the National Hemophilia Foundation,
the American Red Cross, the National Gay Task Force and various
blood banking and public health organizations. At that meeting,
the Center for Disease Control indicated there was a
possibility that this unknown disease could be blood-borne. The
opinion of the sponsor of the bill, which is reflected in the
findings in H.R. 1023, was that the actions taken by the
Government from that point were not sufficient to protect the
blood supply.
No further action was taken on H.R. 1023 in the 104th
Congress.
Federal Charters
Subcommittee Policy on New Federal Charters
On February 8, 1995, the Subcommittee on Immigration and
Claims adopted the following policy concerning the granting of
new federal charters:
The Subcommittee will not consider any legislation to
grant new federal charters because such charters are
unnecessary for the operations of any charitable, non-
profit organization and falsely imply to the public
that a chartered organization and its activities carry
a congressional ``seal of approval,'' or that the
Federal Government is in some way responsible for its
operations. The Subcommittee believes that the
significant resources required to properly investigate
prospective chartered organizations and monitor them
after their charters are granted could and should be
spent instead on the Subcommittee's large range of
legislative and other substantive policy matters. This
policy is not based on any decision that the
organizations seeking federal charters are not
worthwhile, but rather on the fact that federal
charters serve no valid purpose and therefore ought to
be discontinued.
This policy represented a continuation of the
Subcommittee's informal policy, which was put in place at the
start of the 101st Congress and continued through the 102d and
103d Congresses, against granting new federal charters to
private, non-profit organizations.
A federal charter is an Act of Congress passed for private,
non-profit organizations. The primary reasons that
organizations seek federal charters are to have the honor of
federal recognition and to use this status in fundraising.
These charters grant no new privileges or legal rights to
organizations. At the conclusion of the 103d Congress,
approximately 90 private, non-profit organizations had federal
charters over which the Judiciary Committee has jurisdiction.
About half of these had only a federal charter, and were not
incorporated in any state and thus not subject to any state
regulatory requirements.
Those organizations chartered more recently are required by
their charters to submit annual audit reports to Congress,
which the Subcommittee sent to the General Accounting Office to
determine if the reports comply with the audit requirements
detailed in the charter. The GAO does not conduct an
independent or more detailed audit of chartered organizations.
Amendment to the Veterans of Foreign Wars Charter
S. 257 a bill to amend the federal charter of the Veterans
of Foreign Wars (VFW) charter was discharged by unanimous
consent from the Judiciary Committee. The amendment allowed
veterans who served honorably on the Korean peninsula or in its
territorial waters for not less than 30 consecutive day, or a
total of 60 day, after June 30, 1949, to become members of the
VFW. Because this was a non-controversial matter, hearings and
consideration by the Subcommittee on Immigration and Claims and
the Committee on the Judiciary were unnecessary.
S. 257 was discharged by unanimous consent from the Senate
Judiciary Committee and passed by the Senate on February 10,
1995.
On February 28, 1995, the bill was discharged from the
Judiciary Committee and called up in the House by unanimous
consent. It was passed by the House that day by voice vote.
The bill was signed by the President on March 7, 1995, as
Public Law 104-3.
Private Claims and Private Immigration Legislation
During the 104th Congress, the Subcommittee on Immigration
and Claims received referral of 47 private claims bills and 14
private immigration bills. The Subcommittee held no hearings on
these bills. The Subcommittee recommended 8 private claims
bills and 3 private immigration bills to the full Committee.
The Committee ordered 8 private claims bills and 2 private
immigration bills reported favorably to the House.
The House passed 8 private claims bills and 2 private
immigration bills reported by the Committee. Of the 8 private
claims bill and 2 private immigration bills, 2 private claims
bills and 2 private immigration bills were passed by the Senate
and signed into law by the President. Six bills were still
pending in the Senate at the close of the 104th Congress.
One private bill ordered reported by the full Committee was
not approved by the full House prior to the close of the 104th
Congress
Oversight Activities
IMMIGRATION
Management Practices of the Immigration and Naturalization Service
On February 8, 1995, the Subcommittee on Immigration and
Claims held an oversight hearing on management practices of the
Immigration and Naturalization Service. Testimony was received
from Laurie Ekstrand, Associate Director, Administration of
Justice Issues, General Government Division, General Accounting
Office, accompanied by James Blume, Assistant Director,
Administration of Justice Issues, General Government Division;
Chris Sale, Deputy Commissioner, Immigration and Naturalization
Service.
Foreign Visitors Who Violate the Terms of their Visas by Remaining in
the United States Indefinitely
On February 24, 1995, the Subcommittee on Immigration and
Claims held an oversight hearing on foreign visitors who
violate the terms of their visas by remaining in the United
States indefinitely. Testimony was received from the Honorable
Barbara Jordan, Chair, Commission on Immigration Reform,
accompanied by Robert Hill, Commissioner, and Susan Martin,
Executive Director; Diane Dillard, Deputy Assistant Secretary
for Consular Affairs, Department of State; James Puleo,
Executive Associate Commissioner--Programs, Immigration and
Naturalization Service, and Robert Warren, Director, Statistics
Branch, Immigration and Naturalization Service.
Worksite Enforcement of Employer Sanctions
On March 3, 1995, the Subcommittee on Immigration and
Claims held an oversight hearing on worksite enforcement of
employer sanctions. Testimony was received from James Puleo,
Executive Associate Commissioner, Programs, U.S. Immigration
and Naturalization Service, accompanied by Brian J.
Vaillancourt, Director Civil Matters, Investigations Division,
U.S. Immigration and Naturalization Service; Maria Echaveste,
Administrator, Wage and Hour Division, U.S. Department of
Labor; Shirley S. Chater, Commissioner, Social Security
Administration, U.S. Department of Health and Human Services;
Robert Rasor, Special Agent, Secret Service, U.S. Department of
the Treasury; Robert Charles Hill, Member, U.S. Commission on
Immigration Reform, accompanied by Susan Forbes Martin,
Executive Director, U.S. Commission on Immigration Reform; Wade
Avondoglio, Owner, Perona Farms Restaurant, Member, National
Restaurant Association; Richard Holcomb, Commissioner, Virginia
Department of Motor Vehicles; W. Marshall Rickert, Motor
Vehicle Administrator, Maryland Motor Vehicle Administration;
A. Torrey McLean, State Registrar, North Carolina Department of
Vital Records.
Border Security
On March 10, 1995, the Subcommittee on Immigration and
Claims held an oversight hearing on border security. Testimony
was received from Congressman Duncan Hunter; Congressman Brian
Bilbray; Congressman Ronald Coleman; Mary Ryan, Assistant
Secretary of State for Consular Affairs, Department of State,
accompanied by Frank Moss, Special Assistant for Border
Security, Bureau for Consular Affairs; Honorable Doris
Meissner, Commissioner, Immigration and Naturalization Service,
accompanied by Silvestre Reyes, Sector Chief, U.S. Border
Patrol, El Paso Sector, and Gus de la Vina, Regional Director,
Western Region, Immigration and Naturalization Service; Laurie
Ekstrand, Associate Director, Administration of Justice Issues,
General Government Division, General Accounting Office;
Brigadier General Edmund Zysk, Deputy Commander, California
National Guard, accompanied by Lieutenant Colonel Bill Hipsley,
Training Officer, California National Guard.
Removal of Criminal and Illegal Aliens
On March 23, 1995, the Subcommittee on Immigration and
Claims held an oversight hearing on the removal of criminal and
illegal aliens. Testimony was received from T. Alexander
Aleinikoff, General Counsel, Immigration and Naturalization
Service, accompanied by James Puleo, Executive Associate
Commissioner, Programs, and Joan Higgins, Assistant
Commissioner, Detention and Deportation; Anthony C. Moscato,
Director, Executive Office for Immigration Review, accompanied
by Paul Schmidt, Chairman, Board of Immigration Appeals, and
Michael J. Creppy, Chief Immigration Judge.
Verification of Eligibility for Employment and Benefits
On March 30, 1995, the Subcommittee on Immigration and
Claims held an oversight hearing on verification of eligibility
for employment and benefits. Testimony was received from the
Honorable Barbara Jordan, Chair, Commission on Immigration
Reform, accompanied by Susan Martin, Ph.D., Executive Director;
Robert L. Bach, Ph.D., Executive Associate Commissioner, Policy
and Planning, U.S. Immigration and Naturalization Service,
accompanied by John E. Nahan, Director, Systematic Alien
Verification for Entitlements (SAVE) Program; William Ludwig,
Administrator, Food and Consumer Service, U.S. Department of
Agriculture; Wendell E. Primus, Deputy Assistant Secretary for
Human Services Policy, U.S. Department of Health and Human
Services, accompanied by Sandy Crank, Associate Commissioner,
Social Security Administration, and Mack Storrs, Division
Director for AFDC Policy; Nelson Diaz, General Counsel, U.S.
Department of Housing and Urban Development; Richard W. Velde,
Esq., Washington, D.C.; Austin T. Fragomen, Jr., Chairman,
American Council on International Personnel; Joseph A. Antolin,
Deputy Director of Field Operations, Illinois Department of
Public Aid; Esperita Johnson-Bullard, Eligibility Supervisor,
Division of Social Services, Department of Human Services, City
of Alexandria, Virginia.
Impact of Illegal Immigration on Public Benefit Programs and the
American Labor Force
On April 5, 1995, the Subcommittee on Immigration and
Claims held an oversight hearing on the impact of illegal
immigration on public benefit programs and the American labor
force. Testimony was received from Michael Fix, Esq., The Urban
Institute, accompanied by Jeffrey Passel; Dr. Donald Huddle,
Rice University; Dr. Georges Vernez, RAND; Dr. George Borjas,
University of California at San Diego; Dr. Joseph Altonji,
Northwestern University; Dr. B. Lindsay Lowell; Dr. Vernon
Briggs, Jr., Cornell University; Dr. Frank Morris, Morgan State
University; Dr. Norman Matloff, University of California at
Davis; Dr. Peter Skerry, Woodrow Wilson International Center
for Scholars.
Legal Immigration Reform Proposals
On May 17, 1995, the Subcommittee on Immigration and Claims
held an oversight hearing on legal immigration reform
proposals. Testimony was received from Susan Martin, Ph.D.,
Executive Director, Commission on Immigration Reform; Peter
Brimelow, Author, Alien Nation; Peter Skerry, Wilson Center;
Philip Martin, Professor of Agricultural Economics, University
of California at Davis; Harris Miller, President, Information
Technology Association of America; Markley Roberts, Assistant
Director, Economic Research Department, AFL-CIO; Demetrios
Papademetriou, Carnegie Endowment for International Peace; Mark
Krikorian, Executive Director, Center for Immigration Studies;
Professor John Guendelsberger, Pettit College of Law, Ohio
Northern University; Michael Lempres, Esq., Akin, Gump,
Strauss, Hauer, & Feld.
The Commission On Immigration Reform's Interim Recommendations on Legal
Immigration Reform
On June 28, 1995, the Subcommittee on Immigration and
Claims held a joint oversight hearing with the Senate
Subcommittee on Immigration to receive testimony from the
Commission on Immigration Reform regarding the Commission's
interim recommendations on legal immigration reform. Testimony
was received from the Honorable Barbara Jordan, Chair,
accompanied by Michael Teitelbaum, Vice Chair; Bruce Morrison,
Commissioner; Robert Charles Hill, Commissioner; Susan Martin,
Executive Director.
Agricultural Guest Worker Programs
On December 7, 1995, the Subcommittee on Immigration and
Claims held an oversight hearing on agricultural guest worker
programs. Testimony was received from John R. Fraser, Deputy
Administrator, Wage and Hour Division, U.S. Department of
Labor; Richard Estrada, Editorial Department, Dallas Morning
News; Professor Monica Heppel, Inter-American Institute on
Migration and Labor, Mount Vernon College; Professor J. Edward
Taylor, Department of Agricultural Economics, University of
California at Davis; Professor Mark J. Miller, New Castle,
Delaware; Bob Vice, President, California Farm Bureau; John
Young, President, National Council of Agricultural Employers;
Dolores Huerta, First Vice President, United Farm Workers;
Robert Williams, Florida Rural Legal Services, Inc.; W.J.
Grimes, Farmer (Georgia); Mark Schacht, Executive Director,
California Rural Legal Assistance Foundation; Bruce Goldstein,
Co-Director, Farmworker Justice Fund; James S. Holt, Senior
Economist, McGuiness and Williams; Bill Maltsberger, Rancher
(Texas); Linda Diane Mull, Executive Director, Association of
Farmworker Opportunity Programs.
Agriculture Guest Worker Programs
On December 14, 1995, the Subcommittee on Immigration and
Claims participated in a joint hearing with the Subcommittee on
Risk Management and Specialty Crops of the Committee on
Agriculture on agriculture guest worker programs. Testimony was
received from Keith J. Collins, Chief Economist, United States
Department of Agriculture; C. Stan Eury, President, North
Carolina Growers Association, Inc., for American Association of
Nurserymen and The National Council of Agricultural Employers;
Bruce Goldstein, Co-Director, Farmworker Justice Fund; Dr.
James S. Holt, National Council of Agricultural Employers;
Dolores Huerta, First Vice President, United Farm Workers; Dr.
Mark J. Miller, Professor, University of Delaware, Department
of Political Science and International Relations; Russell L.
Williams, Agriculture Producers; Steve Appel, President,
Washington State Farm Bureau; Israel Baez, A. Duda & Sons, for
Florida Fruit and Vegetable Association and the United Fresh
Fruit and Vegetable Association; Robert Dasher, Specialty Crop
Producer, Georgia; John R. Hancock, Former Chief of
Agricultural Labor Certification, United States Department of
Labor; G. Chandler Keyes, Senior Director of Congressional
Relations, National Cattlemen's Association.
Legal Immigration Projections
On May 16, 1996, the Subcommittee on Immigration and Claims
held an oversight hearing on legal immigration projections.
Testimony was received from Dr. Susan Martin, Executive
Director, Commission on Immigration Reform, accompanied by Dr.
Lawrence A. Fuchs, Vice Chair, and Dr. Michael S. Teitelbaum,
Vice Chair; Rosemary Jenks, Senior Analyst, Center for
Immigration Studies; Dr. John L. Martin, The Federation for
American Immigration Reform; Jeanne Butterfield, Senior Policy
Analyst, American Immigration Lawyers Association; Dr. Robert
Bach, Executive Assistant Commissioner for Policy and Planning,
Immigration and Naturalization Service, accompanied by David
Martin, General Counsel; Cornelius D. Scully, Visa Office,
Department of State, and Seton P. Stapleton, Visa Office,
Department of State; Nancy M. Gordon, Associate Director for
Demographic Programs, Bureau of the Census.
Shifting of Refugee Resettlement to Private Organizations
On August 1, 1996, the Subcommittee on Immigration and
Claims held an oversight hearing on shifting of refugee
resettlement to private organizations. Testimony was received
from Congressman David Obey; Congressman Gary Condit; Lavinia
Limon, Director, Office of Refugee Resettlement, Department of
Health and Human Services; Chris Gersten, Director, Center for
Jewish and Christian Values; Dr. Edwin Silverman, State
Coordinator, Refugee Resettlement Program, Illinois Department
of Public Aid; Ralston Deffenbaugh, Executive Director,
Lutheran Immigration and Refugee Service; Father Patrick
Delahanty, Director, Catholic Charities Migration & Refugee
Services Department, Archdiocese of Louisville, Kentucky.
Removal of Criminal and Illegal Aliens
On September 5, 1996, the Subcommittee on Immigration and
Claims held an oversight hearing on the removal of criminal and
illegal aliens. Testimony was received from David Martin,
General Counsel, Immigration and Naturalization Service,
accompanied by J. Scott Blackman, Associate Commissioner for
Field Operations, Joan Higgins, Assistant Commissioner,
Detention and Deportation, Gregory Bednarz, Acting Assistant
Commissioner, Investigations; Anthony C. Moscato, Director,
Executive Office for Immigration Review, accompanied by Paul W.
Schmidt, Chairman, Board of Immigration Appeals, Margaret M.
Philbin, General Counsel, Executive Office for Immigration
Review.
Alleged Deception of Congressional Delegation to Miami District of the
Immigration and Naturalization Service
On September 12, 1996, the Subcommittee on Immigration and
Claims held an oversight hearing on alleged deception of
Congressional delegation to Miami District of the Immigration
and Naturalization Service. Testimony was received from Michael
Bromwich, Inspector General, Department of Justice; Doris
Meissner, Commissioner, Immigration and Naturalization Service,
accompanied by Chris Sale, Deputy Commissioner, and William
Slattery, Executive Associate Commissioner.
Refugee Consultations
I. FY 1996
On September 13, 1995, Members of the Judiciary Committee
met with Secretary of State Warren Christopher and other
Administration officials to discuss the Administration's
proposal for refugee admissions in FY 1996. That proposal was
as follows:
eas of origin:
Proposed ceiling
Africa........................................................ 7,000
East Asia.....................................................25,000
Former Soviet Union and Eastern Europe............................45,000
Latin America and the Caribbean................................... 6,000
Near East and South Asia...................................... 4,000
Unallocated Reserve........................................... 3,000
-----------------------------------------------------------------
________________________________________________
Total.......................................................90,000
On September 29, 1995, President Clinton issued
Presidential Determination No. 95-48, which put into force a FY
1996 worldwide refugee ceiling of 90,000. This final
determination was identical to the Administration's original
proposal.
By letter dated August 2, 1996, the Department of State
advised the Chairman of the Judiciary Committee of plans to use
up to 1,000 numbers from the Unallocated Reserve for admissions
from the Near East and Africa.
II. FY 1997
On September 18, 1996, Members of the Judiciary Committee
met with Secretary of State Warren Christopher and other
Administration officials to discuss the Administration's
proposal for refugee admissions in FY 1997. That proposal was
as follows:
eas of origin:
Proposed ceiling
Africa........................................................ 7,000
East Asia.....................................................10,000
Europe............................................................48,000
Latin America and the Caribbean................................... 4,000
Near East and South Asia...................................... 4,000
Unallocated Reserve........................................... 5,000
-----------------------------------------------------------------
________________________________________________
Total.......................................................78,000
On September 30, 1996, President Clinton issued
Presidential Determination No. 96-59, which put into force a FY
1997 worldwide refugee ceiling of 78,000. This final
determination was identical to the Administration's original
proposal.
Subcommittee on Courts and Intellectual Property
CARLOS J. MOORHEAD, California,
Chairman
PATRICIA SCHROEDER, Colorado F. JAMES SENSENBRENNER, Jr.,
JOHN CONYERS, Jr., Michigan Wisconsin
HOWARD L. BERMAN, California HOWARD COBLE, North Carolina
XAVIER BECERRA, California BOB GOODLATTE, Virginia
RICK BOUCHER, Virginia SONNY BONO, California
JERROLD NADLER, New York GEORGE W. GEKAS, Pennsylvania
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
MARTIN R. HOKE, Ohio
Tabulation and disposition of bills referred to the subcommittee
Legislation referred to the Subcommittee.......................... 68
Legislation reported favorably to the full Committee.............. 21
Legislation reported adversely to the full Committee.............. 00
Legislation reported without recommendation to the full Committee. 00
Legislation reported as original measure to the full Committee.... 02
Legislation discharged from the Subcommittee...................... 01
Legislation pending before the full Committee..................... 02
Legislation reported to the House................................. 22
Legislation discharged from the Committee......................... 00
Legislation pending in the House.................................. 08
Legislation passed by the House................................... 14
Legislation pending in the Senate................................. 02
Legislation vetoed by the President (not overridden).............. 00
Legislation enacted into public law............................... 14
Legislation enacted into public law as part of another measure.... 02
Legislation on which hearings were held........................... 29
Days of hearings (legislative and oversight)...................... 35
Private legislation referred to the Subcommittee.................. 03
Private legislation pending in the Subcommittee................... 03
Jurisdiction of the Subcommittee
The Subcommittee has legislative and oversight
responsibility for (1) the intellectual property laws of the
United States (including the Patent and Trademark Office of the
Department of Commerce and the U.S. Copyright Office of the
Library of Congress); (2) Article III Federal courts (including
the Administrative Office of the United States Courts, the
Judicial Conference of the United States, and the Federal
Judicial Center); Federal Rules of Evidence and Civil and
Appellate Procedure, judicial ethics; and (3) the U.S.
Attorneys within the United States Department of Justice.
Legislative Activities
Courts
Reporting Deadlines, S. 464
Introduced by Senators Hatch, Biden, Grassley and Heflin
and passed by the Senate, S. 464 makes the reporting deadlines
for studies conducted in federal court demonstration districts
consistent with the deadlines for pilot districts.
The Civil Justice Reform Act of 1990 (28 U.S.C. 471)
required certain federal district courts to conduct
demonstration programs from 1991 through 1994 for improved case
management and cost reduction in civil litigation. This law
also required the Judicial Conference of the United States to
prepare a report for the Congress on the programs' results by
December 31, 1995. S. 464 extends the demonstration period
through the end of 1995, and the report deadline to December
31, 1996. This change makes the reporting deadlines for studies
conducted in federal court demonstration districts consistent
with the deadlines for pilot districts which were also
established under the Civil Justice Reform Act.
The Subcommittee held a hearing on S. 464, and related
court proposals, on December 5, 1995. The Honorable William W.
Schwarzer, Senior Judge, Northern District of California and
the former Director of the Federal Judicial Center; and the
Honorable Ann C. Williams, Judge, United States District Court
for the Northern District of Illinois, submitted letters in
support of S. 464 as part of the hearing record. On May 16,
1995, the Subcommittee met in open session and ordered
favorably reported the bill S. 464, by a voice vote, a quorum
being present. On June 7, 1995, the full Committee met in open
session and ordered favorably reported the bill S. 464 by a
voice vote, a quorum being present (H. Rept. 104-180). S. 464
was passed by the House under suspension of the rules on
September 18, 1995, and was signed into law by the President on
October 3, 1995. It is public law 104-33.
Senior Judge Participation in En Banc Hearings, S. 531
S. 531 amends section 46(c) of Title 28 to authorize a
circuit judge who has taken part in an en banc hearing of a
case to continue to participate in that case after taking
senior status. There is an inadvertent problem in the law as it
exists today. While section 46(c) allows a senior circuit judge
who was a member of a panel whose decision is being reviewed en
banc to sit on the en banc court, it has been interpreted to
require a circuit judge in regular active service who has heard
argument in an en banc case to cease participating in that case
upon taking senior status. This problem leads to uncertainty in
deciding who will be eligible to vote on the final disposition
of an appeal and may create the perception that a judge is
delaying the release of an en banc opinion until a member of
the en banc court takes senior status.
The Committee held no hearings on S. 531, because it was
viewed as noncontroversial and received broad bipartisan
support. On July 16, 1996, the full Committee met in open
session and ordered favorably reported the bill S. 531, by a
vote of 24 to 0, a quorum being present (H. Rept. 104-697). S.
531 was passed by the House under suspension of the rules on
July 29, 1996 and was signed into law by the President on
August 6, 1996. It is Public Law 104-175.
Clarify the Rules Governing Venue, S. 532
S. 532, introduced by Senator Hatch, is a technical
amendment to paragraph (3) of section 1391(a) of title 28 of
the United States Code. The Act is based on a proposal by the
Judicial Conference of the United States and is intended to
update the U.S. Code to comply with amendments made to venue
provisions that ensure that in multi-defendant cases, there is
at least one federal district where venue is proper.
The Subcommittee held a hearing on S. 532 and related court
proposals on May 11, 1995. At that hearing, Judge Ann Claire
Williams of the United States District Court for the Northern
District of Illinois testified in support of S. 532 on behalf
of the Judicial Conference of the United States. On May 16,
1995, the Subcommittee met in open session and ordered
favorably reported the bill S. 532, by a voice vote, a quorum
being present. On June 7, 1995, the Committee met in open
session and ordered favorably reported the bill S. 532 by a
voice vote, a quorum being present (H. Rept. 104-181). S. 532
was passed by the House under suspension of the rules on
September 18, 1995 and was signed into law by the President on
October 3, 1995. It is Public Law 104-34.
Amend Commencement Date of Certain Temporary Federal Judgeships, H.R.
2361
H.R. 2361, introduced by Subcommittee Chairman Moorhead,
ensures that judicial districts specified as recipients of
temporary judgeships under the Federal Judgeship Act of the
Judicial Improvements Act of 1990 receive the benefit of the
temporary judgeship for five years as intended by the Act. It
does so by measuring the term of the temporary judgeship from
the confirmation date of the judge appointed rather than from
the effective date of the Act.
The provision contained in H.R. 2361 is substantially the
same as one of the provisions considered by the Subcommittee at
a hearing on H.R. 1443 on May 11, 1995. Testimony was received
regarding that provision from the Honorable J. Phil Gilbert,
Chief Judge, United States District Court for the Southern
District of Illinois. Section 5 of H.R. 1443 amends the
effective date of the Federal Judgeship Act in the same manner
as the provision contained in H.R. 2361. Because of the time
deadline for enacting the effective date provision, section 5
was introduced as a separate bill, H.R. 2361, and called up by
the full Committee. On May 16, 1995, the Subcommittee met in
open session and ordered favorably reported the bill, H.R.
1443, section 5 of which contained a provision substantially
the same as that contained in H.R. 2361, by a voice vote, a
quorum being present. The full Committee met in open session
and ordered favorably reported the bill H.R. 2361, by a voice
vote, a quorum being present, on October 17, 1995 (H. Rept.
104-334). H.R. 2361 passed the House under suspension of the
rules on November 20, 1995. It was sent to the President as S.
1328 (Sponsored by Senator Hatch) and signed into law by the
President on October 3, 1995. It is Public Law 104-60.
Technical Amendments to Removal Provision, S. 533
S. 533, introduced by Senator Hatch and passed in the
Senate, provides for technical amendments to the removal
provision contained in Title 28 of the United States Code. For
some time prior to 1988, 28 U.S.C. Sec. 1447(c) provided that
``If at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case
shall be remanded.'' In the Judicial Improvements and Access to
Justice Act of 1988, Congress required that a ``motion to
remand the case on the basis of any defect in removal must be
made within 30 days after the filing of the notice of removal
under section 1446(a).'' The intent of this amendment was to
impose a 30-day limit on all motions to remand except in those
cases where the court lacks subject matter jurisdiction. The
intent of the Congress was not entirely clear from the wording
of 28 U.S.C. Sec. 1447(c), and it had been interpreted
differently by different courts. S. 533 clarified the intent of
Congress that a motion to remand a case on the basis of any
defect other than subject matter jurisdiction must be made
within 30 days after the filing of the notice of removal under
28 U.S.C. Sec. 1446(a).
The Committee held no hearings on S. 533 because it viewed
the bill as technical and noncontroversial, and it received
broad bipartisan support. On July 23, 1996, the Subcommittee
met in open session and ordered favorably reported the bill S.
533, by a voice vote, a quorum being present. On September 11,
1996, the full Committee met in open session and ordered
favorably reported the bill S. 533, by voice vote, a quorum
being present (H. Rept. 104-799). S. 533 passed the House under
suspension of the Rules on September 17, 1996 and was signed
into law by the President on October 1, 1996. It is Public Law
104-219.
Technical Amendments to Venue Provisions, S. 677
S. 677, introduced by Senator Hatch and passed in the
Senate, provides for technical amendments to the venue
provision contained in Title 28 of the United States Code. S.
677 implements a proposal made by the Judicial Conference of
the U.S. to eliminate a redundant provision governing venue, 28
U.S.C. Sec. 1392(a), which duplicates provisions of the
Judicial Improvements Act of 1990. This is a housekeeping
provision to eliminate any confusion regarding venue in Title
28.
The Committee held no hearings on S. 677 because it viewed
the bill as technical and noncontroversial, and it received
broad bipartisan support.
On July 23, 1996, the Subcommittee met in open session and
ordered favorably reported the bill S. 677, by a voice vote, a
quorum being present. On September 11, 1996, the full Committee
met in open session and ordered favorably reported the bill S.
677 by a voice vote, a quorum being present (H. Rept. 104-800).
S. 677 was passed by the House under Suspension of the Rules on
September 17, 1996, and was signed into law by the President on
October 1, 1996. It is Public Law 104-220.
Attorney Accountability Act, H.R. 988
H.R. 988, the ``Attorney Accountability Act of 1995,'' was
introduced by Subcommittee Chairman Moorhead, Chairman Hyde and
Mr. Goodlatte. It was originally derived from sections 101,
102, and 104 of H.R. 10, the ``Common Sense Legal Reforms Act
of 1995''. The purpose of H.R. 988 was to provide concrete
steps to restore accountability, efficiency and fairness to our
federal civil justice system. Section 2 of H.R. 988 provided
for a settlement-oriented ``unreasonable party pays''
attorney's fee amendment to 28 U.S.C. Sec. 1332 wherein a
``non-prevailing'' party must pay a portion of the ``prevailing
party's'' attorney's fees in federal civil diversity litigation
where an offer of settlement has been made and refused, and
where the refuser fares worse after resolution of the suit than
he would have if he had accepted the settlement offer. Section
3 would limit, in accordance with the Supreme Court's decision
in Daubert v. Merrell Dow Pharmaceuticals, Inc., the use of
expert testimony and Section 4 would reinstate the pre-December
1993 Rule 11 provisions of the Federal Rules of Civil Procedure
and make mandatory the issuance of sanctions against lawyers
who file frivolous lawsuits or engage in abusive litigation
tactics.
The aim of the bill was to implement a more complete, fair
and effective policy than exists at present to favor compromise
rather than dispositive motions or trial and to consequently
(1) lessen the incentive to litigate and the caseload burdens
faced by the federal judiciary; (2) assure that only
meritorious and justifiable cases supported by scientific facts
be adjudicated in federal courts, and (3) prevent the filing of
frivolous lawsuits by attorneys. Fair and accountable
litigation can thereby result, carried out by legitimate
claims, accountable counsel and valid testimony.
The Subcommittee held two days of oversight hearings
related to the issues contained in H.R. 988. The hearings were
held on February 6 and February 10, 1995. Testimony was
received from the following witnesses on February 6, 1995: the
Honorable Jim Ramstad, U.S. Representative, 3rd district,
Minnesota; the Honorable Christopher Cox, U.S. Representative,
47th district, California; Professor Thomas D. Rowe, Jr., Duke
University Law School; Professor Herbert M. Kritzer, University
of Wisconsin Law School; Mr. Walter K. Olson, Economist,
Manhattan Institute; Ms. Debra T. Ballen, Senior Vice President
of Policy & Development Research, American Insurance
Association; Mr. John P. Frank, Attorney-at-Law, Lewis and
Roca; and Mr. John Foster, Engineer and Chairman of Malcolm
Pirnie, Inc.
On February 10, 1995, the Subcommittee received testimony
from the following witnesses: the Honorable Toby Roth, U.S.
Representative, 3rd district, Wisconsin; Dr. Franklin Zweig,
President, Einstein Institute for Science, Health and the
Courts; Mr. Robert Charrow, Attorney-at-Law, Crowell & Moring;
Mr. Anthony Z. Roisman, Attorney-at-Law, Cohen, Milstein,
Hausfeld & Toll; Mr. David C. Weiner, Attorney-at-Law, Hahn,
Loeser & Parks; Mr. Michael J. Horowitz, Attorney-at-Law,
Hudson Institute; and Mr. Bill Fry, Executive Director, HALT,
with additional material submitted by Robert D. Evans, Director
of Government Affairs, American Bar Association; Mr. L. Ralph
Mecham, Director, Administrative Office of the United States
Courts; Judge William W. Schwarzer, Director, The Federal
Judicial Center; Judge Ralph K. Winter, Jr., Chairman,
Committee on Rules of Practice and Procedure, Judicial
Conference of the United States; Stuart Z. Grossman, Chairman,
Civil Justice Committee, American Board of Trial Advocates,
Arthur D. Wolf, Professor of Law, Western New England College
School of Law, and Sheila F. Anthony, Assistant Attorney
General, Office of Legislative Affairs, U.S. Department of
Justice.
On February 23, 1995 the full Committee met in open session
and called up H.R. 988. During its consideration, the Committee
adopted three amendments. The first amendment was offered by
Mr. Goodlatte to strike section 2 and insert new language. That
amendment passed on a recorded vote of 27 in favor and 7
opposed. The next two amendments passed on a voice vote, one
offered by Mr. McCollum to strike section 5 ``Notice Before
Commencement of Lawsuit'' and the other by Mr. Barr to strike
the ``Sense of Congress'' provision in section 4. The Committee
then ordered favorably reported H.R. 988 on a recorded vote of
19 in favor and 12 opposed, a quorum being present (H. Rept.
104-62). Ms. Lofgren moved to reconsider the vote on the motion
to favorably report H.R. 988 to the House. The motion failed on
a recorded vote of 14 in favor and 19 opposed. H.R. 988 passed
the House by recorded vote of 232 yeas and 193 nays, on March
7, 1995. It was not taken up by the Senate.
Three Judge Court Review of Constitutional Challenges to Referenda,
H.R. 1170
H.R. 1170, introduced by Mr. Bono, Chairman Hyde,
Subcommittee Chairman Moorhead, Mr. Sensenbrenner, Mr.
Gallegly, Mr. Coble, Mr. Gekas, Mr. Canady of Florida, Mr.
Goodlatte, Mr. Hoke, Mr. Cox of California, Mr. McCollum, Mr.
Dreier, Mr. Paxon, Mr. Riggs, Mr. Lewis of California, Mr.
Rohrabacher, Mr. Schiff, Mr. Calvert, Mr. Packard, Mr. Smith of
Texas, Mr. Baker of California, Mr. Herger, Mr. Hunter, Mr.
Dornan, Mr. Thomas, Mr. Heineman, Mr. Cunningham, Mr. Pombo,
Mr. Inglis of South Carolina, Mr. McKeon, Mr. Doolittle, Mr.
Kim, Mr. Buyer, Mr. Royce, Mr. Flanagan, Mr. Barr, Mr. Horn,
Mr. Bryant of Tennessee, Mr. Bilbray, Mr. Chabot, Mr.
Radanovich and Mrs. Seastrand, provided that requests for
injunctions in cases challenging the constitutionality of
measures passed by State referendum must be heard by a 3-judge
court. Like other federal legislation containing a provision
providing for a hearing by a 3-judge court, H.R. 1170 was
designed to protect voters in the exercise of their vote and to
further protect the results of that vote. It required that
legislation voted upon and approved directly by the populace of
a state (defined in the bill as a referendum) be afforded the
protection of a 3-judge court pursuant to 28 U.S.C. Sec. 2284
where an application for an injunction is brought in federal
court to arrest the enforcement of the referendum on the
premise that the referendum is unconstitutional. Under the
bill, an appeal would be taken directly to the Supreme Court,
expediting the enforcement of the referendum if the final
decision is that the referendum is constitutional. Such an
expedited procedure is already provided for in other Voting
Rights Act cases. The bill intended to implement a fair and
effective policy that preserves a proper balance in federal-
state relations.
The Subcommittee held a hearing on H.R. 1170 on April 5,
1995. Testimony was received from the following witnesses: Mr.
Harold G. Maier, Professor of Law, David Daniels Allen
Distinguished Chair in Law, Vanderbilt University School of
Law; Mr. Burt Neuborne, Professor of Law, New York University
School of Law; and the Honorable Harry T. Edwards, Chief Judge,
United States Court of Appeals for the District of Columbia
Circuit. Additional material was submitted by the Honorable
Daniel E. Lungren, Attorney General, State of California;
William P. Barr, former Attorney General of the United States;
and Edwin Meese III, former Attorney General of the United
States. On June 16, 1995, the Subcommittee met in open session
and ordered favorably reported the bill H.R. 1170, as amended
by an amendment in the nature of a substitute, by a recorded
vote of 8 in favor and 4 opposed, a quorum being present. On
June 7, 1995, the full Committee met in open session and
ordered favorably reported the bill H.R. 1170 with the
amendment in the nature of a substitute by a recorded vote of
17 in favor and 13 opposed, a quorum being present (H. Rept.
104-179). H.R. 1170 was passed by the House by recorded vote of
266 yeas and 159 nays on October 28, 1995. It was not taken up
by the Senate.
Federal Courts Improvement Act, H.R. 3968
H.R. 3968, the ``Federal Courts Improvement Act of 1996,''
introduced by Subcommittee Chairman Moorhead and Ranking Member
Schroeder, is designed to improve judicial administration and
procedures, eliminate operational inefficiencies, and, to the
extent prudent, reduce judicial operating expenses.
The bill affects a wide range of judicial branch programs
and operations. The reappointment procedure of bankruptcy
judges is simplified and the length of the term of certain
temporary bankruptcy judgeships is clarified. Provisions
affecting court reporters, court interpreters, and employees of
the Administrative Office of the United States Courts are
included. The bill corrects inconsistencies in the operation of
the Judicial Survivors' Annuities System. Civil action filing
fees and other user fees are increased for the first time in 10
years. Clarifications of statutory removal and venue provisions
are made. The bill also addresses several personnel provisions
affecting court employees.
The Subcommittee held a hearing on H.R. 1989, the ``Federal
Courts Improvement Act of 1995'', which contained many of the
provisions included in H.R. 3468, on March 14, 1996. Testifying
on behalf of the Judicial Conference of the United States were:
Judge Stephen Anderson, U.S. Court of Appeals for the Tenth
Circuit; Judge Emmett Cox, U.S. Court of Appeals for the
Eleventh Circuit; and Judge Barefoot Sanders, U.S. District
Court of the Northern District of Texas. Also presenting
testimony were Judge W. Earl Britt, U.S. District Court for the
Eastern District of North Carolina, on behalf of the Federal
Judges Association and Mitchell F. Dolin, Attorney at Law,
Covington & Burling, on behalf of the American Bar Association.
On July 23, 1996, the Subcommittee met in open session to
markup a Committee print that represented a scaled-back version
of H.R. 1989. The Committee print was ordered favorably
reported by a voice vote, a quorum being present. On August 2,
1996, the committee print was then introduced as a clean bill,
H.R. 3968. On September 11, 1996, the full Committee met in
open session and ordered favorably reported the bill H.R. 3968,
as amended, by a voice vote, a quorum being present (H. Rept.
104-798). H.R. 3968 was passed by the House under suspension of
the Rules on September 17, 1996. It was subsequently amended by
the Senate. Those amendments were accepted by the House on
October 4, 1996, sent to the President and the Senate bill, S.
1887 was signed into law on October 19, 1996. It is Public Law
104-317.
Stenographic Preference for Depositions, H.R. 1445
H.R. 1445, introduced by Subcommittee Chairman Moorhead,
Mrs. Schroeder, Mr. Coble and Mr. Canady of Florida, amended
Rule 30 of the Federal Rules of Civil Procedure to restore the
stenographic preference for depositions. From 1970 to December
1993, Rule 30(b) of the Rules of Civil Procedure permitted
depositions to be recorded by nonstenographic means but only
upon court order or with the written stipulation of the
parties. In December, 1993, the Rule was changed to eliminate
the requirement of a court order or stipulation, and afforded
each party the right to arrange for recording of a deposition
by nonstenographic means.
Because depositions recorded stenographically historically
have provided the most accurate record of testimony which can
conveniently be used by both trial and appellate courts, and
because under present law, video or audio recordings that are
to be introduced at trial must be transcribed anyhow according
to Rule 32(c), H.R. 1445 provides for a preference for
stenographic recordings.
The Subcommittee held hearings on H.R. 1445, along with
other court-related proposals, on May 11, 1995. Testimony was
received on H.R. 1445 from the following witnesses: Gary M.
Cramer, Registered Professional Reporter, National Court
Reporters Association; and Neal R. Gross, President and Chief
Executive Officer, Neal R. Gross & Company, Inc. on behalf of
the American Association of Electronic Reporters and
Transcribers (AAERT).
On May 16, 1995, the Subcommittee met in open session and
ordered favorably reported the bill H.R. 1445, by a voice vote,
a quorum being present. On July 12, 1995 the full Committee met
in open session and ordered favorably reported the bill H.R.
1445 by a voice vote, a quorum being present (H. Rept. 104-
228). H.R. 1445 was never scheduled for Floor action.
Court Arbitration Authorization Act, H.R. 1443
H.R. 1443, introduced by Subcommittee Chairman Moorhead,
Mr. Sensenbrenner, Mr. Coble, Mr. Goodlatte, Mr. Bono, Mr.
Gallegly and Mr. Canady of Florida, would require all Federal
District Courts to establish an arbitration program, which in
the discretion of the court could be either voluntary or
mandatory. H.R. 1443 is the same as H.R. 1102, which was
favorably reported on voice vote by the Judiciary Committee on
October 6, 1993, and was then passed by the House on October
12, 1993 under suspension of the rules. The Senate failed to
act on H.R. 1102 and instead elected to pass legislation that
extended the existing 20 pilot programs (10 mandatory, 10
voluntary) until 1997.
The Subcommittee held a hearing on H.R. 1443 on May 11,
1995, along with other courts-related proposals, and received
testimony from the following witnesses on H.R. 1443: Mr.
William K. Slate II, President and Chief Executive Officer,
American Arbitration Association; Paul Friedman, Deputy
Assistant Attorney General, Department of Justice; and the
Honorable Ann Williams, Judge, U.S. District Court for the
Northern District of Illinois. On May 16, 1995, the
Subcommittee met in open session and ordered reported favorably
H.R. 1443. H.R. 1443 was not considered in the full Committee.
Police Civil Liability, H.R. 1446
H.R. 1446, introduced by Subcommittee Chairman Moorhead,
was designed to encourage effective law enforcement while
deterring egregious and unconstitutional conduct by state and
local law enforcement officers by: (1) requiring a plaintiff in
a civil rights case brought against an officer in federal court
to prove by ``clear and convincing'' evidence that the officer
intended to cause serious injury or acted with ``flagrant
indifference'' to the plaintiff's rights knowing that serious
injury would likely result; (2) restricting excessively high
awards of punitive damages in civil rights cases brought
against law enforcement officers by limiting such awards to
$10,000, or approximately one-third of an average officer's
salary; (3) allowing a police department or municipality,
without liability, to reimburse an officer for a punitive
damage award assessed against him personally; and (4) limiting
attorney's fees in civil rights cases brought against law
enforcement officers to one-third the monetary recovery in a
case.
This legislation was introduced to address the problems of
law enforcement officers and departments which have become
inundated with lawsuits arising out of routine police
activities such as making arrests, conducting searches and
apprehending suspects. Police are being sued for placing
handcuffs on too tightly, or even for grabbing or pushing a
suspect who refuses to cooperate. Too often, departments are
being sued with harassing ``pattern or practice'' lawsuits
which charge departments with maintaining a ``code of silence''
and a ``culture'' of police abuses. While these policies must
be deterred effectively, the result of the current standard in
our legal system is to paralyze and over deter officers and to
cause them to hesitate to act, resulting in less prompt and
certain police response.
The Subcommittee held a hearing on H.R. 1446 on November 8,
1995. Testimony was received from the following witnesses: The
Honorable Ken Calvert, U.S. Representative, 43rd District,
California; The Honorable Maxine Waters, U.S. Representative,
35th District, California; Ernest George, Executive Vice
President, National Association of Police Organizations;
Gilbert G. Gallegos, National President, Fraternal Order of
Police; The Honorable Sherman Block, Sheriff Los Angeles
County; Ken Fortier, Chief of Police, Riverside, California;
Steven D. Manning, Partner, Manning, Marder & Wolfe; Paul
Hoffman, Attorney, Santa Monica, California; and Howard
Saffold, Founding Member and Former Chairman, National Black
Police Association. No markups were held on H.R. 1446.
Ethical Standards for Federal Prosecutors, H.R. 3386
H.R. 3386, the Ethical Standards for Federal Prosecutors
Act of 1996, was introduced by Representative McDade of
Pennsylvania. On August 4, 1994, the Department of Justice
(``DOJ'') issued a regulation to govern DOJ attorneys' contact
with represented persons. The DOJ claims that, to the extent
that the rules of ethics governing state bars and federal
district courts conflict with this regulation, they are
preempted by the regulation. H.R. 3386 would require all
attorneys for the government, including DOJ attorneys, to be
subject to the same state and local federal rules to the same
extent and in the same manner as other attorneys and
prosecutors in that jurisdiction.
The Subcommittee held a hearing on H.R. 3386 on September
12, 1996. Testimony was received from the Honorable Joseph M.
McDade, Member of Congress, 10th District of Pennsylvania; Mr.
Seth P.Waxman, Associate Deputy Attorney General, Office of the
Deputy Attorney General, Department of Justice; Mr. Tim Evans,
Member of Board of Directors, National Association of Criminal
Defense Lawyers; Mr. Frederick J. Krebs, President, American
Corporate Counsel Association; and Mr. Roger Pilon, Director,
CATO Institute. No markups were held on H.R. 3386.
Intellectual Property
Copyrights
Piracy by China, H. Res. 50
H. Res. 50, introduced by Subcommittee Chairman Moorhead
and Representative Mineta of California, is a sense of the
House Resolution urging the U.S. Trade Representative to
continue to insist that China enforce its Copyright law and
eliminate rampant piracy in that Country. Among the largest and
most obvious offenders in China are producers of U.S.
copyrighted music, compact and laser discs, software and motion
pictures. Many CD factories, largely in south and central
China, are operating with an annual production capacity
exceeding $75 million. Their products are now found in Hong
Kong, Southeast Asia, and increasingly in the Americas.
Data contained in a Report released in February, 1995
testifies to the importance of antipiracy issues before the
Subcommittee on Courts and Intellectual Property, as well as to
the importance of the work already done by the Subcommittee
over the last decade.
Digital Performance Right in Sound Recordings Act, H.R. 1506
The purpose of H.R. 1506, introduced by Subcommittee
Chairman Moorhead, Chairman Hyde, Mr. Conyers and Mr. Gekas, is
to ensure that performing artists, record companies and others
whose livelihoods depend upon effective copyright protection
for sound recordings, will be protected as new technologies
affect the ways in which their creative works are used. H.R.
1506 does this by granting a limited right to copyright owners
of sound recordings which are publicly performed by means of a
digital transmission.
The Subcommittee held two days of hearings on H.R. 1506 on
June 21 and June 28, 1995. On June 21, testimony was received
from the following witnesses: Mr. Jason S. Berman, Chairman and
Chief Executive Officer of the Recording Industry Association
of America; Mr. Wayland D. Holyfield, Board Member of the
American Society of Composers, Authors and Publishers; Mr.
Edward P. Murphy, President and Chief Executive Officer of the
National Music Publishers Association; Mr. Marvin Berenson,
Senior Vice President and General Counsel of the Broadcast
Music, Inc.; Mr. Edward O. Fritts, President of the National
Association of Broadcasters; and Mr. Jerold H. Rubinstein,
Chairman and Chief Executive Officer of the International
Cablecasting Technologies, Inc. On June 28, testimony was
received from the following witnesses: The Honorable Bruce
Lehman, Assistant Secretary of Commerce and Commissioner of
Patents and Trademarks of the Patent and Trademark Office of
the United States Department of Commerce; Ms. Marybeth Peters,
Register of Copyrights of the Copyright Office of the United
States Library of Congress; Mr. Dennis Dreith, President of the
Recording Musicians' Association of the United States and
Canada; and Mr. Barry Bergman, President of the International
Managers Forum.
On July 27, 1995 the Subcommittee met in open session and
ordered favorably reported the bill H.R. 1506, as amended, by a
voice vote, a quorum being present. On September 12, 1995, the
full Committee met in open session and ordered favorably
reported the bill H.R. 1506, as amended, by a recorded vote of
29 in favor and 0 opposed, a quorum being present (H. Rept.
104-274). H.R. 1506 was passed by the House under suspension of
the rules on October 17, 1995, sent to the President as S. 227
(Sponsored by Senator Hatch), and signed into law on October 3,
1995. It is Public Law 104-39.
Film Labeling, H.R. 1248
H.R. 1248, introduced by Mr. Frank of Massachusetts, Mr.
Conyers and Mr. Bryant of Texas, would mandate the labeling of
films to inform consumers when films are modified to
accommodate the needs of home video, broadcast TV, cable TV,
airlines and other exhibitions that take place outside the
theater.
Since October, 1993, the major American producers and
distributors of films and motion pictures have been voluntarily
labeling films that have been modified. A survey of the top
forty video rentals listed in the May 13, 1995 edition of
Billboard Magazine found that 90% of the theatrical films that
are now in video are already labeled. Directors, however, are
dissatisfied with the wording of the modification message and
desire a label which would inform the viewer that the movie
does not represent the artistic intent of the director.
The Subcommittee held a hearing on H.R. 1248 on June 1,
1995 in Pasadena, California. Testimony was received from the
following witnesses: Mr. Jack Valenti, President and CEO,
Motion Picture Association of America; Ms. Marilyn Bergman,
President and Chairman, American Society of Composers, Authors
and Publishers; Mr. Edward R. Richmond, Curator, UCLA Film and
Television Archives; Mr. Edward P. Murphy, President and CEO,
National Music Publishers Association; Ms. Martha Coolidge,
Directors Guild of America; Mr. Jeffrey P. Eves, President,
Video Software Dealers Association; Mr. Michael Weller,
playwright and screenwriter; and Ms. Judith M. Saffer,
Assistant General Counsel, Broadcast Music, Inc. No markups
were held on H.R. 1248.
Copyright Clarification Act, H.R. 1861
H.R. 1861, the ``Copyright Clarification Act,'' introduced
by Subcommittee Chairman Moorhead, accomplishes many purposes.
Some of its provisions will assist the U.S. Copyright Office in
carrying out its duties, including giving the Office the
ability to set reasonable fees for basic services, subject to
congressional approval. Others correct or clarify the language
in several recent amendments to the law so that Congress'
original intent can be better achieved. Two provisions resolve
problems created by recent judicial interpretations of
provisions of the copyright law. One of these amendments makes
clear that the distribution of musical disks or tapes before
1978 did not publish the musical compositions embodied in the
disks or tapes. The other amendment ensures that independent
service organizations have the ability to activate a computer
to maintain and repair its hardware components without being
held liable by a court for copyright infringement due to that
activation alone.
The Subcommittee held a hearing on H.R. 1861 on November 9,
1995. Testimony was received from Ms. Marybeth Peters, Register
of Copyrights, United States Copyright Office, The Library of
Congress. On December 13, 1995, the Subcommittee met in open
session and adopted, by voice vote, an amendment in the nature
of a substitute to H.R. 1861 offered by Subcommittee Chairman
Moorhead, and ordered favorably reported, by voice vote, a
quorum being present, the amendment in the nature of a
substitute to the full Committee. On March 12, 1996, the full
Committee adopted, by voice vote, an amendment offered by
Subcommittee Chairman Moorhead to the amendment in the nature
of a substitute, and ordered favorably reported, by voice vote,
a quorum being present, the amendment in the nature of a
substitute, as amended (H. Rept. 104-554). H.R. 1861 was passed
by the House, under suspension of the Rules, on June 4, 1996.
No senate action was taken on H.R. 1861.
National Film Preservation Act, H.R. 1734
H.R. 1734, the ``National Film Preservation Act of 1995,''
introduced by Subcommittee Chairman Moorhead, Mr. Coble and Mr.
Bono, reauthorizes the National Film Preservation Board in the
Library of Congress, and establishes, under the Library's
auspices, the National Film Preservation Foundation, to
continue the protection and preservation of America's motion
picture heritage.
H.R. 1734 reauthorizes the Board to allow it to continue to
implement recommendations found in a national preservation plan
conducted by the Board. The newly-established Film Foundation
will enable this plan, through a public-private financing
arrangement, to be properly funded to ensure its success. The
Foundation, by eventually using very modest federal funds to
match contributions from the motion picture industry, creative
artists, other foundations and interested parties, will finance
projects to conserve and make publicly accessible (in full
compliance with the rights of copyright owners) films made in
the United States, particularly those not already protected by
private interests, for the benefit of present and future
generations of Americans.
The Subcommittee held a hearing on H.R. 1734 (and other
legislation) on June 1, 1995 in Pasadena, California. Testimony
was received from Edward Richmond, Curator, UCLA Film and
Television Archive, and President of the Association of Moving
Image Archivists. Other witnesses, Martha Coolidge (Director's
Guild of America) and Michael Weller (Writers Guild of America,
East), although focused on the other legislation subject of the
hearing (H.R. 989 and 1248), also voiced strong support for the
legislation. On July 27, 1995, the Subcommittee met in open
session and ordered favorably reported the bill H.R. 1734, by a
voice vote, a quorum being present. On March 12, 1996, the full
Committee met in open session and adopted by voice vote an
amendment offered by Mr. Moorhead to reduce the authorization
for the National Film Preservation Board and the National Film
Preservation Foundation from 10 years to 7 years, and to reduce
the funding for the National Film Preservation from $2 million
a year to $250,000 a year for fiscal years 2000 through 2003.
The Committee then ordered favorably reported the bill H.R.
1734, as amended, a quorum being present (H. Rept. 104-558,
part 1). H.R. 1734 was passed by the House under suspension of
the Rules on July 29, 1996. It was passed by the Senate and
signed into law on October 11, 1996. It is Public Law 104-285.
Copyright Term Extension, H.R. 989
H.R. 989, introduced by Subcommittee Chairman Moorhead,
Ranking Member Schroeder, Mr. Coble, Mr. Goodlatte, Mr. Bono,
Mr. Gekas, Mr. Berman, Mr. Nadler, Mr. Clement and Mr.
Gallegly, would extend the copyright term granted to copyright
owners by 20 years. Currently, U.S. law protects copyrighted
works during the life of the author plus 50 years. For movies
and other works made-for-hire (``work-for-hire''), the term of
protection is 75 years from publication or 100 years from
creation, whichever expires first. Generally, works created
before 1978 are protected for 75 years.
The Copyright Term Extension Act was introduced in response
to a European Union (EU) Directive requiring member countries
to grant a copyright term of life-plus-70-years. In order to
keep pace with this international development and to protect
U.S. ``creator'' copyright owners (authors and authors'
families) and ``corporate'' copyright holders (producers and
publishers who hold assigned or transferred copyrights from
creators or own copyrights of works-for hire) for at least an
equal amount of time, H.R. 989 would match the term now
required in Europe for ``creator'' owners and extend the amount
of time granted to ``corporate'' owners.
Hearings were held on H.R. 989 in Pasadena, California, on
June 1, 1995, and in Washington, D.C. on July 13, 1995.
Testimony was received from the following witnesses: Mr. Jack
Valenti, President and CEO, Motion Picture Association of
America; Ms. Marilyn Bergman, President and Chairman, American
Society of Composers Authors and Publishers; Mr. Edward R.
Richmond, Curator, UCLA Film and Television Archives; Mr.
Edward P. Murphy, President and CEO, National Music Publishers
Association; Ms. Martha Coolidge, Directors Guild of America;
Mr. Jeffrey P. Eves, President, Video Software Dealers
Association; Mr. Michael Weller, playwright and screenwriter;
Ms. Judith M. Saffer, Assistant General Counsel, Broadcast
Music, Inc.; The Honorable Marybeth Peters, Register of
Copyrights, Copyright Office of the United States, The Library
of Congress; Ambassador Charlene Barshefsky, Deputy United
States Trade Representative, Office of the United States Trade
Representative, Executive Office of the President; The
Honorable Bruce Lehman, Assistant Secretary of Commerce and
Commissioner of Patents and Trademarks, Patent and Trademark
Office, United States Department of Commerce; Mr. Quincy Jones,
Chief Executive Officer, Quincy Jones Entertainment; Professor
John Belton, Rutgers University, Society for Cinema Studies;
Professor Dennis S. Karjala, Arizona State University College
of Law; Professor William F. Patry, Benjamin N. Cardozo School
of Law; and Professor Jerome H. Reichman, Vanderbilt University
School of Law. No markups were held on H.R. 989.
National Information Infrastructure Copyright Protection Act, H.R. 2441
H.R. 2441, introduced by Subcommittee Chairman Moorhead,
Ranking Member Schroeder and Mr. Coble, clarifies and updates
the copyright law in three important respects: (1) it makes
clear that the right of public distribution in U.S. copyright
law applies to digital transmissions on computers; (2) it
prohibits the importation, manufacture or distribution of a
device designed to circumvent a technological process created
to protect copyrighted material, especially applicable to the
digital environment; and (3) it prohibits providing false
information about or altering the identification of a copyright
owner or the conditions for lawful use of a copyrighted work.
This bill was the product of recommendations made by the
Working Group on Intellectual Property Rights of the
Administration's Information Infrastructure Task Force, led by
the Honorable Bruce A. Lehman, Assistant Secretary of Commerce
and Commissioner of Patents and Trademarks.
It is a new age in the world of copyright and the law must
be clarified to reflect the new digital environment.
Digitization now allows us to send and retrieve perfect copies
of copyrighted information over the Internet, including both
the National and Global Information Infrastructures (``NII'')
and (``GII''). With these evolutions in technology, the
copyright law must evolve as well to protect one of our
nation's mast valuable resources and exports, the products of
our authors. Whether it be movies, videos, compact discs,
software programs or books, the NII and GII will change the
landscape as to how these products are delivered to the
marketplace. In order for the Internet to be a success, it must
carry desired content.
The provisions of H.R. 2441 providing for enhanced access
to works by the visually impaired were included as part of H.R.
3754, the Legislative Branch Appropriations Act of 1997. Those
provisions are part of Public Law 104-197.
While H.R. 2441 does not address all of the issues that
need to be considered in protecting copyrighted material in the
digital environment, including provisions regarding special
uses by libraries, it contains the basic provisions which must
be added to our copyright law to protect access to creative
works.
Hearings were held on H.R. 2441 on November 15, 1995,
February 7, 1996, and February 8, 1996. Testimony was received
from the following witnesses: The Honorable Bruce A. Lehman,
Assistant Secretary of Commerce and Commissioner of Patents and
Trademarks, Patent and Trademark Office, U.S. Department of
Commerce and Chair, Working Group on Intellectual Property
Rights, Information Infrastructure Task Force; The Honorable
Marybeth Peters, Register of Copyrights, U.S. Copyright Office,
The Library of Congress; Dr. Mihaly Ficsor, Assistant Director
General, World Intellectual Property Organization; Mr. Jack
Valenti, Chairman and Chief Executive Officer, Motion Picture
Association of America, Inc.; Ms. Frances Preston, President
and Chief Executive Officer, Broadcast Music, Inc.; Mr. Edward
P. Murphy, President and Chief Executive Officer, National
Music Publishers Association; Mr. Robert Holleyman, II,
President, Business Software Alliance; Mr. Edward J. Black,
President, Computer & Communications Industry Association; Ms.
Barbara A. Munder, Senior Vice President, Corporate Affairs,
McGraw Hill Co.; Mr. Gary L. Shapiro, Chairman, Home Recording
Rights Coalition and President, Consumer Electronics
Manufacturers Association; Mr. Garry L. McDaniels, President,
Skills Bank Corporation; Mr. David M. Ostfeld, Vice Chairman,
U.S. Activities Board, Institute for Electrical and Electronics
Engineers; Ms. Jeanne Hurley Simon, Chairperson, U.S. National
Commission on Libraries and Information Science; Dr. Tuck
Tinsley III, President, American Printing House for the Blind,
Inc.; Mr. Richard Robinson, Chairman, President and Chief
Executive Officer, Scholastic Corporation; Mr. Cornelius Pings,
President, Association of American Universities; Mr. Stephen M.
Heaton, Secretary and General Counsel, CompuServe, Inc.; Mr.
Scott Purcell, President, HLC-Internet, Inc.; Mr. William J.
Cook, Partner, Willian, Brinks, Hofer, Gilson & Lione; and Ms.
Catherine Simmons- Gill, President, International Trademark
Association. No markups were held on H.R. 2441.
Patents
Biotechnology Patent Process Act, H.R. 587
H.R. 587, introduced by Subcommittee Chairman Moorhead, Mr.
Boucher, Mr. Sensenbrenner, Mr. Coble, Mr. Frank of
Massachusetts, Mr. Gallegly, Mr. Goodlatte, Mr. Gekas, Mr.
Bono, Mr. Canady of Florida, and Mr. Hoke, provides for a
modified examination of biotechnological process patents. Under
the provisions of H.R. 587, a biotechnological process will not
have to undergo a separate review of nonobviousness under
certain conditions. If the process uses or produces a
patentable composition of matter, the process will be
determined nonobvious for the purpose of examination of
biotechnological process claims. The expedited review will
resolve the delays and inconsistent determinations faced by
biotechnological process patent applicants under present PTO
practices without harm to the basic principles of
patentability.
The Subcommittee held a hearing on H.R. 587 on March 29,
1995. Testimony was received from the following four witnesses:
Mr. H. Dieter Hoinkes, Senior Counsel, Office of Legislative
and International Affairs, Patent and Trademark Office, United
States Department of Commerce; Mr. Henry Linsert, Chairman and
Chief Executive Officer, Martek Biosciences Corporation,
Columbia, Maryland; Michele Cimbala, Ph.D. and J.D., Partner,
Sterne, Kessler, Goldstein and Fox; and Mr. Steven Odre, Senior
Vice President, Amgen Incorporated, Thousand Oaks, California
with additional material submitted by Biotechnology Industry
Organization (Bio).
On May 16, 1995 the Subcommittee on Courts and Intellectual
Property met in open session and ordered favorably reported the
bill H.R. 587, by a voice vote, a quorum being present. On June
7, 1995 the full Committee met in open session and ordered
favorably reported the bill H.R. 587 by a voice vote, a quorum
being present. (H. Rept. 104-178). H.R. 587 passed the House
under suspension of the rules on October 17, 1995 and was sent
to the President as S. 1111 (Sponsored by Senator Hatch). It
was signed into public law on October 3, 1995 as P.L. 104-41.
Compensating Owners of Patents used by U.S., H.R. 632
H.R. 632, introduced by Representative Frost, helps small
businesses, independent inventors and nonprofit organizations
recover the legal costs associated with defending their patents
when the Federal government takes and uses them.
Because attorney's fees and costs in cases such as these
can only be authorized by statute, this bill specifically
provides for them in limited cases. Specifically, when the
government takes a person's patent and the person is forced to
sue the government for infringement, the government must pay
reasonable attorney's fees and costs if it is found ``liable.''
The Subcommittee held a hearing on H.R. 632 (along with
other legislation) on June 8, 1995. Testimony was received on
H.R. 632 from the following witnesses: Representative Martin
Frost, 24th District of Texas; The Honorable Bruce A. Lehman,
Secretary of Commerce and Commissioner of Patents and
Trademarks, Patent and Trademark Office, U.S. Department of
Commerce; Mr. Gary Griswold, President, Intellectual Property
Owners, Inc.; Mr. Michael Kirk, Executive Director, American
Intellectual Property Law Association; and Mr. Thomas Smith,
President, Section on Intellectual Property Law, American Bar
Association.
On July 27, 1995 the Subcommittee met in open session and
ordered favorably reported the bill H.R. 632 by a voice vote, a
quorum being present. On October 17, 1995, the full Committee
met in open session and ordered favorably reported the bill
H.R. 632, by voice vote, a quorum being present (H. Rept. 104-
373). H.R. 632 was passed by the House on December 12, 1995. It
was amended by the Senate. Those amendments were accepted by
the House and the bill was sent to the President on October 4,
1996. It was signed into law on October 19, 1996. It is Public
Law 104-308.
PTO Corporation Act, H.R. 1659
H.R. 1659, introduced by Subcommittee Chairman Moorhead and
Ranking Member Schroeder, proposed that the Patent and
Trademark Office (``PTO'') be converted into a wholly owned
government corporation. The PTO operates completely upon fees
generated by patent and trademark applicants, and not on tax
dollars. As a government corporation, it would be able to
purchase real and personal property based on an established
bidding process without proceeding through the General Services
Administration, be free from any administratively or
statutorily imposed limitations on positions or personnel and
exempted from the employment, classification, retention,
performance appraisal, and General Schedule pay rates of Title
5 of the U.S. Code.
H.R. 1659, as amended and included in Title I of H.R. 3460,
replaces this system with full collective bargaining. This
would allow the PTO, subject to oversight by Congress and its
own collective bargaining agreements, to hire and place
employees without regard to the registers maintained by the
Office of Personnel Management, to downsize without regard to
current reduction in force requirements, to award bonuses, to
demote for poor job performance, and to establish its own pay
scale outside of the General Schedule.
Under Title I, the cap on the top basic pay rate of PTO
employees will increase while allowing for a negotiated
grievance procedure and a right to appeal to the EEOC. The
title guarantees that employees will retain their federal
health, life, and retirement benefits, except that the PTO
would be able to supplement or improve current benefits. It
further provides for a bipartisan Management Advisory Board,
comprised of members of the private sector who represent users
of the PTO. Patent and trademark examiners, and members of the
Appeal Boards may not be removed from office, except for cause.
This protection will insulate these quasi-judicial officers
from outside pressures and preserve integrity within the
application examination system. Under the bill, a relationship
is established with the Justice Department for assistance in
the defense of lawsuits brought against the PTO Corporation and
the PTO will be required to report to Congress annually on
budget and patent quality issues.
Importantly, the PTO is granted borrowing authority,
subject to annual appropriations Acts, and is allowed to issue
bonds for purchase by the Secretary of the Treasury. Any monies
not otherwise used to carry on the duties of the PTO must be
kept in cash on hand, in deposit, or invested in U.S.
obligations or other lawful investments for public funds. The
PTO cannot borrow money without explicit advance approval in
appropriations acts and without guaranteeing its payment from
future user fee income. Audits shall be conducted by an
independent accountant chosen by the Commissioner and are
subject to review by the Comptroller General.
These provisions were written to reflect the concerns of
employees from the PTO, expressed in hearing testimony. It
attempts to strike an appropriate balance between union and
management and grant the flexibility necessary to allow the PTO
and its users to benefit directly from the fees its users pay.
That means better service to America's creative community by a
better work force under the oversight of Congress and the
President with increased input by employees and their
organizations. Government corporation status is supported by
the National Academy of Public Administration. The
establishment of the PTO as a government corporation is
necessary to achieve cost-effective, quality examining
operations which will best serve its users, and consequently,
the public interest.
The Subcommittee held two days of hearings on H.R. 1659, on
September 14, 1995, and March 8, 1996. Testimony was received
from The Honorable Bruce A. Lehman, Assistant Secretary of
Commerce and Commissioner of Patents and Trademarks, Patent and
Trademark Office, U.S. Department of Commerce; Dr. Harold
Seidman, Senior Fellow, and Alan Dean, Fellow, from the
National Academy of Public Administration; Michael K. Kirk,
Executive Director of the American Intellectual Property Law
Association; Herbert C. Wamsley, Executive Director of the
Intellectual Property Owners; Donald R. Dunner, Chair of the
Section on Intellectual Property Law Section of the American
Bar Association; The Honorable Dana Rohrabacher,
Representative, California 45th District; The Honorable Duncan
Hunter, Representative, California, 52nd District; Mr. Timothy
Reardon, Congressional Liaison, Patent & Trademark Office
Society; Mr. Robert M. Tobias, National President, National
Treasury Employees Union; Mr. Ronald J. Stern, President,
Patent Office Professional Association; Mr. Howard Friedman,
President, The Trademark Society, National Treasury Employees
Union, Chapter 245; and Ms. Catherine Simmons-Gill, President,
International Trademark Association. On May 15, 1996, the
Subcommittee ordered favorably reported a Committee Print
incorporating five bills pending before the Subcommittee,
including provisions contained in H.R. 1659, by voice vote, a
quorum being present. A bill containing the Committee Print
favorably reported by the Subcommittee was introduced as H.R.
3460. On June 11, the Committee on the Judiciary considered
H.R. 3460. Two amendments were offered: (1) Congressman
Moorhead offered an en bloc amendment making various technical,
clarifying and conforming changes, and (2) Congressmen Hyde and
Conyers offered an amendment to the short title of H.R. 3460 to
rename the bill the ``Moorhead-Schroeder Patent Reform Act.''
Both of the amendments passed by voice vote, a quorum being
present and the bill H.R. 3460, as amended, was ordered
favorably reported by voice vote, a quorum being present (H.
Rept. 104-784).
Provisions included in H.R. 1659 (H.R. 3460) were passed by
the House on October 25, 1995 as part of the Seven-Year
Balanced Budget Reconciliation Act of 1995 (H.R. 2491).
Intellectual Property Organization Act of 1996, H.R. 2533
The Administration's proposed bill, H.R. 2533, was
introduced, by request, by Subcommittee Chairman Moorhead and
Ranking Member Schroeder. It is a proposal by the
Administration to convert the Patent and Trademark Office into
a government corporation with many similarities to H.R. 1659
(Title I of H.R. 3460).
The Subcommittee held two days of hearings on H.R. 2533,
along with H.R. 1659, on September 14, 1995, and March 8, 1996.
Testimony was received from The Honorable Bruce A. Lehman,
Assistant Secretary of Commerce and Commissioner of Patents and
Trademarks, Patent and Trademark Office, U.S. Department of
Commerce; Dr. Harold Seidman, Senior Fellow, and Alan Dean,
Fellow, from the National Academy of Public Administration;
Michael K. Kirk, Executive Director of the American
Intellectual Property Law Association; Herbert C. Wamsley,
Executive Director of the Intellectual Property Owners; Donald
R. Dunner, Chair of the Section on Intellectual Property Law
Section of the American Bar Association; The Honorable Dana
Rohrabacher, Representative, California 45th District; The
Honorable Duncan Hunter, Representative, California, 52nd
District; Mr. Timothy Reardon, Congressional Liaison, Patent &
Trademark Office Society; Mr. Robert M. Tobias, National
President, National Treasury Employees Union; Mr. Ronald J.
Stern, President, Patent Office Professional Association; Mr.
Howard Friedman, President, The Trademark Society, National
Treasury Employees Union, Chapter 245; and Ms. Catherine
Simmons-Gill, President, International Trademark Association.
No markups were held on H.R. 2533.
Commerce Department Dismantling, H.R. 1756
The Commerce Department Dismantling Act was introduced by
Mr. Chrysler, Mr. Brownback, Mr. Kasich, Mr. Livingston, Mr.
Solomon, Mr. Crane, Mr. Boehner, Mr. Paxon, Mr. Parker, Mr.
Metcalf, Mr. Cooley, Mrs. Chenoweth, Mr. Neumann, Mr.
Scarborough, Mrs. Myrick, Mr. Knollenberg, Mr. Gutknecht, Mr.
LaHood, Mr. Sanford, Mr. Graham, Mr. Weldon of Florida, Mr.
Hilleary, Mr. Jones, Mr. Ensign, Mr. Christensen, Mr. Weller,
Mr. Klug, Mr. Nethercutt, Mr. McIntosh, Mr. Stearns, Mr. Smith
of Michigan, Mr. Radanovich, Mr. Salmon, Mr. Chabot, Mr. Fox of
Pennsylvania, Mr. Largent, Mr. Bono, Mr. Tiahart, Mr. Cremeans,
Mr. Miller of Florida, Mr. Hayworth, Mr. Hutchinson, Mr.
Wicker, Mr. Hastings of Washington, Mr. Funderburk, Mr. Frisa,
Mr. Thornberry, Mrs. Waldholtz, Mr. Norwood, Mrs. Seastrand,
Mr. Bass, Mr. Ewing, Mr. Shadegg, Mr. Hoekstra, Mr. Camp, Mr.
Linder, Mr. Upton, Mr. White, Mr. Riggs, Mr. Tate, and Mrs.
Smith of Washington. It calls for the complete elimination of
the Department of Commerce which includes the Patent and
Trademark Office. The part of this legislation pertaining to
the PTO included provisions to transfer the PTO to another
agency.
The Subcommittee held a hearing on H.R. 1756, along with
H.R. 1659, on September 14, 1995. Testimony was received from
The Honorable Bruce A. Lehman, Assistant Secretary of Commerce
and Commissioner of Patents and Trademarks, Patent and
Trademark Office, U.S. Department of Commerce; Dr. Harold
Seidman, Senior Fellow, and Alan Dean, Fellow, from the
National Academy of Public Administration; Michael K. Kirk,
Executive Director of the American Intellectual Property Law
Association; Herbert C. Wamsley, Executive Director of the
Intellectual Property Owners; Donald R. Dunner, Chair of the
Section on Intellectual Property Law Section of the American
Bar Association. H.R. 1756 was considered by several committees
and marked up by the Committee on Ways and Means with amendment
(H. Rept. 104-260, part 1). It was included in the Seven-Year
Balanced Budget Reconciliation Act of 1995, H.R. 2491 and
passed by recorded vote.
18-Month Publication, H.R. 1733
H.R. 1733, the ``Patent Application Publication Act,''
introduced by Subcommittee Chairman Moorhead and Ranking Member
Schroeder, was included in H.R. 3460 as Title II. It addresses
the concerns of some patent applicants who are fearful that
under the new GATT-TRIPS 20 years from filing term for patents,
they might lose patent term where there are unusual
administrative delays in processing a patent application in the
Patent Office. It does so by establishing an objective time
clock. It provides that every diligent patent applicant is
ensured at least seventeen years of patent term from the date
of grant, and in most cases, a term closer to eighteen years.
The bill also provides for the publication of all patent
applications after 18 months. All of the major patent systems
throughout the world, with the exception of the United States,
publish applications 18 months from the earliest effective
filing date. In an age where worldwide patent protection is
becoming increasingly important, the current system places U.S.
inventors at a clear disadvantage. For example, an invention
that is the subject of a patent application in Japan will be
published in the Japanese language after 18 months. Inventors
reviewing the Japanese patent application disclosures will have
the benefit of the early disclosure in Japan. This is
especially beneficial to domestic inventors in Japan as they
are able to obtain an early disclosure of the technology in the
Japanese language. Meanwhile, in the United States, domestic
inventors do not have the benefit of an English language
publication of the technology disclosed in an application for a
patent until the patent is actually issued. This situation
provides foreign inventors a clear advantage relative to U.S.
domestic inventors.
The early publication provisions of Title II would provide
American inventors with a prompt English-language publication
of relatively current technology. There would be no need to
await the grant of a patent to gain an understanding of the
technology it contains. This will speed disclosure of foreign
origin U.S. patent technology by at least 12 months. Further,
technology contained in patent applications that never mature
into patents would also be available. Our domestic inventors
would be able to take advantage of this earlier access to
English-language patent application technology and build upon
it more rapidly than they are able to do in our current system.
This legislation would also help to address the submarine
patent problem that has long plagued the U.S. patent system.
Submarine patents surface from applications that have been
pending in the PTO for many years. The belatedly granted
patents often cause disruptions in the market place because
competitors unknowingly regarded and adopted the later-patented
technology as commonplace publicly available information.
In return for the disclosure that would be made by virtue
of early publication, patentees would be given provisional
rights to obtain compensation for any use of an invention
disclosed in the application for patent for the time period
from publication to grant.
The Subcommittee held two days of hearings on H.R. 1733 on
June 8, 1995 and November 1, 1995. Testimony was received from
The Honorable Bruce A. Lehman, Assistant Secretary of Commerce
and Commissioner of Patents and Trademarks, Patent and
Trademark Office, U.S. Department of Commerce; Mr. Gary L.
Griswold, Intellectual Property Owners; Mr. Michael Kirk,
American Intellectual Property Law Association; Mr. Thomas E.
Smith, American Bar Association, Section on Intellectual
Property Law; Mr. Andrew Kimbrell, Director, International
Center for Technology Assessment; Mr. Kenneth Addison, Oklahoma
Inventors Congress; Dr. Raymond Damadian, President and
Chairman, Fonar Corporation; The Honorable Dana Rohrabacher,
Representative, California, 45th District; Mr. James L.
Fergason, Inventor, Founder and President of Optical Shields,
Incorporated, Menlo Park, California; Mr. Mark A. Lemley,
Assistant Professor, School of Law, University of Texas at
Austin; Mr. Thomas W. Buckman, Inventor, Vice President,
Patents and Technology, Illinois Tool Works, Incorporated,
Glenview, Illinois, representing the National Association of
Manufacturers; Mr. William D. Budinger, Inventor, Chairman &
Chief Executive Officer, Rodel, Incorporated, and Chair of the
Technology and Innovation Section of the White House Conference
on Small Business; Mr. Edward Stead, Vice President, General
Counsel & Secretary, Apple Computer, Incorporated, testifying
on behalf of the Information Technology Industry Council; Mr.
Roger May, Assistant General Counsel, Ford Motor Company,
Member of the Michigan Patent Law Association; Mr. Stephen
Barram, Inventor, Chief Executive Officer, Integrated Services,
Incorporated, Lake Oswego, Oregon; Dr. Raymond Damadian,
Inventor, President and Chairman, Fonar, Incorporated, Inventor
and Manufacturer of Magnetic Resonance Imaging (MRI); Mr. James
Chandler, President of the National Intellectual Property Law
Institute, Washington, D.C.; Dr. Robert Rines, Inventor,
Founder, and former President of the Franklin Pierce Law
Center; Ms. Diane L. Gardner, Patent Agent, Molecular
Biosystems, Incorporated, and President of the Intellectual
Property Law Society at Thomas Jefferson School of Law; Dr.
Paul Crilly, Inventor, and Associate Professor of Electronic
Engineering University of Tennessee, Knoxville; and Dr. David
L. Hill, President, Patent Enforcement Fund, Incorporated,
Southport, Connecticut.
On May 15, 1996, the Subcommittee ordered favorably
reported a Committee Print incorporating five bills pending
before the Subcommittee, including provisions contained in H.R.
1733, by voice vote, a quorum being present. A bill containing
the Committee Print favorably reported by the Subcommittee was
introduced as H.R. 3460. On June 11, 1996, the Committee on the
Judiciary considered H.R. 3460. Two amendments were offered:
(1) Congressman Moorhead offered an en bloc amendment making
various technical, clarifying and conforming changes, and (2)
Congressmen Hyde and Conyers offered an amendment to the short
title of H.R. 3460 to rename the bill the ``Moorhead-Schroeder
Patent Reform Act.'' Both of the amendments passed by voice
vote, a quorum being present and the bill H.R. 3460, as
amended, was ordered favorably reported by voice vote, a quorum
being present (H. Rept. 104-784).
Prior User Rights, H.R. 2235
H.R. 2235, introduced by Subcommittee Chairman Moorhead
and Ranking Member Schroeder, was included in H.R. 3460 as
Title III. It would provide a defense of prior user rights
against infringement of a patent. The defense typically arises
when an original inventor, who decided not to patent a
manufacturing process, uses the process as a trade secret in a
commercial endeavor. The original inventor is later sued by a
party, often a party outside the United States, who
subsequently patented the process. While U.S. law permits the
assertion of prior public use as a method of defeating a patent
under our first-to-invent system, it may not recognize secret
prior use as a defense to patent infringement.
An inventor may develop a process without ever considering
obtaining a patent, may not be able to afford obtaining a
patent, or may choose for strategic or personal reasons to
protect his process as a trade secret.
Under current law, choosing to practice an invention as a
trade secret has its risks because while prior public
disclosure of an invention defeats a patent, an undisclosed
invention which relies on trade secret protection may not.
Title III would eliminate this risk by granting a prior user,
in effect, a defense against infringement suits for practicing
the later patented invention. This personal defense does not
extend to later developed products and processes that infringe
the patent.
Under the current system, foreign patentees, who are
treated the same as U.S. inventors under our patent laws, may
obtain patents on processes or products protected by trade
secret laws in the U.S. and sue the original U.S. inventors for
infringement. However, U.S. inventors are not able to do the
same abroad because most of our foreign trading partners have
enacted prior user rights as a means of protecting their
manufacturers.
The Subcommittee held one day of hearings on H.R. 2235 on
October 26, 1995. Testimony was received from Mr. Dieter
Hoinkes, Senior Counsel, Office of Legislative and
International Affairs, Patent and Trademark Office, U.S.
Department of Commerce; Mr. Karl Jorda, Professor, Franklin
Pierce Law Center; Mr. Richard Schwaab, Adjunct Professor,
George Mason Law School and Partner, Foley & Lardner; Mr. Gary
L. Griswold, President of the Intellectual Property Owners; Mr.
Robert A. Armitage, President, American Intellectual Property
Law Association (AIPLA); and Mr. William D. Budinger, Chairman
and Chief Executive Officer, Rodel, Incorporated.
On May 15, 1996, the Subcommittee ordered favorably
reported a Committee Print incorporating five bills pending
before the Subcommittee, including provisions contained in H.R.
2235, by voice vote, a quorum being present. A bill containing
the Committee Print favorably reported by the Subcommittee was
introduced as H.R. 3460. On June 11, 1996, the Committee on the
Judiciary considered H.R. 3460. Two amendments were offered:
(1) Congressman Moorhead offered an en bloc amendment making
various technical, clarifying and conforming changes, and (2)
Congressmen Hyde and Conyers offered an amendment to the short
title of H.R. 3460 to rename the bill the ``Moorhead-Schroeder
Patent Reform Act.'' Both of the amendments passed by voice
vote, a quorum being present and the bill H.R. 3460, as
amended, was ordered favorably reported by voice vote, a quorum
being present (H. Rept. 104-784).
Inventor Protection, H.R. 2419
H.R. 2419, introduced by Subcommittee Chairman Moorhead
and Ranking Member Schroeder, was included as Title IV of H.R.
3460. It would create a new chapter 5 of Part I of title 35 of
the United States Code, and is designed to curb the deceptive
practices of invention marketing companies. These companies
operate by advertising that inventors can call a toll free
number for an invention evaluation form, which they claim is
used to provide expert analysis of the development
possibilities of their inventions. The inventors return the
form with descriptions of the inventions, which become the
basis for contacts by salespeople at the marketing companies.
The next step is a costly product research report which usually
contains nothing more than boilerplate information stating
merely that the invention may qualify for a design patent. Then
the marketing companies attempt to convince the inventor to buy
marketing services--typically consisting of a mere mention in a
few press releases and trade shows--at a cost of up to $10,000.
The title aims to confront these problems by requiring
that: (1) contracts between marketing companies and inventors
contain standardized disclosures, including the number of
applicants rejected by the companies, statistics on the profits
actually earned by inventors, and contractual terms prescribing
payment conditions and termination rights and (2) marketing
companies submit quarterly reports to their subscribing
inventors.
Remedies against companies for failing to comply include
private civil actions for actual or $5,000 statutory damages,
the possibility of treble damages, and costs and attorneys'
fees. Criminal penalties of up to $10,000 are also provided.
The Subcommittee held a hearing on H.R. 2419 on October
19, 1996. Testimony was received from G. Lee Skillington,
Counsel, Office of Legislative and International Affairs,
Patent and Trademark Office, United States Department of
Commerce; Senator Joseph I. Lieberman, the sponsor of S. 909,
the Senate companion bill to H.R. 2419; Dr. William D. Noonan,
Klarquist, Sparkman, Campbell, Leigh & Whinston; Mr. Donald R.
Dunner, Chair, Section of Intellectual Property Law Section,
American Bar Association; Mr. Michael Kirk, Executive Director,
American Intellectual Property Law Association; and Mr. Robert
Lougher, Inventors Awareness Group.
On May 15, 1996, the Subcommittee ordered favorably
reported a Committee Print incorporating five bills pending
before the Subcommittee, including provisions contained in H.R.
2419, by voice vote, a quorum being present. A bill containing
the Committee Print favorably reported by the Subcommittee was
introduced as H.R. 3460. On June 11, 1996, the Committee on the
Judiciary considered H.R. 3460. Two amendments were offered:
(1) Congressman Moorhead offered an en bloc amendment making
various technical, clarifying and conforming changes, and (2)
Congressmen Hyde and Conyers offered an amendment to the short
title of H.R. 3460 to rename the bill the ``Moorhead-Schroeder
Patent Reform Act.'' Both of the amendments passed by voice
vote, a quorum being present and the bill H.R. 3460, as
amended, was ordered favorably reported by voice vote, a quorum
being present (H. Rept. 104-784).
Reexamination, H.R. 1732
H.R. 1732, the ``Patent Reexamination Reform Act,''
introduced by Subcommittee Chairman Moorhead and Ranking Member
Schroeder, was included as Title V of H.R. 3460. There are
three main elements of the legislation. First, the legislation
provides third parties with a greater opportunity to
participate in reexamination proceedings while maintaining most
of the features which make reexamination a desirable
alternative to litigation in the federal courts (e.g., low
cost, expedited procedure). Second, the legislation expands the
basis and scope of reexamination to include review of
compliance with all aspects of 35 U.S.C., Sec. 112, except the
``best mode'' requirement. Third, the proposed legislation
requires that the real party in interest be identified and
provides third-party requesters with certain appeal rights.
Exercising some of these rights (e.g., filing of an appeal to
the Federal Circuit), would be conditioned on the third-party
requester accepting a statutory estoppel against subsequent
review, either by the Office or by a federal court, of the
issues that were or could have been raised in the reexamination
proceeding. These limits, along with certain others introduced
in the legislation, would ensure that reexamination proceedings
could not be used to harass patent owners and would not be
available where court action makes reexamination unnecessary.
The proposed modifications to the reexamination procedure
would not unreasonably increase the cost, complexity or
duration of reexamination proceedings, nor would they impose
unreasonable burdens on the Office or patentees. Reexamination
proceedings would continue to be based largely on the ex parte
structure of regular examination. The issues considered during
reexamination would continue to be those routinely considered
by examiners in the course of regular examination procedures.
Most importantly, however, these modifications would increase
third party use of the reexamination system as a meaningful,
inexpensive and expeditious alternative to patent validity
litigation.
The Subcommittee held two days of hearings on H.R. 1732,
on June 8, 1995 and November 1, 1995. Testimony was received
from The Honorable Bruce A. Lehman, Assistant Secretary of
Commerce and Commissioner of Patents and Trademarks, Patent and
Trademark Office, U.S. Department of Commerce; Mr. Gary L.
Griswold, Intellectual Property Owners; Mr. Michael Kirk,
American Intellectual Property Law Association; Mr. Thomas E.
Smith, American Bar Association, Section on Intellectual
Property Law; Mr. Andrew Kimbrell, Director, International
Center for Technology Assessment; Mr. Kenneth Addison, Oklahoma
Inventors Congress; Dr. Raymond Damadian, President and
Chairman, Fonar Corporation; The Honorable Dana Rohrabacher,
Representative, California, 45th District; Mr. James L.
Fergason, Inventor, Founder and President of Optical Shields,
Incorporated, Menlo Park, California; Mr. Mark A. Lemley,
Assistant Professor, School of Law, University of Texas at
Austin; Mr. Thomas W. Buckman, Inventor, Vice President,
Patents and Technology, Illinois Tool Works, Incorporated,
Glenview, Illinois, representing the National Association of
Manufacturers; Mr. William D. Budinger, Inventor, Chairman &
Chief Executive Officer, Rodel, Incorporated, and Chair of the
Technology and Innovation Section of the White House Conference
on Small Business; Mr. Edward Stead, Vice President, General
Counsel & Secretary, Apple Computer, Incorporated, testifying
on behalf of the Information Technology Industry Council; Mr.
Roger May, Assistant General Counsel, Ford Motor Company,
Member of the Michigan Patent Law Association; Mr. Stephen
Barram, Inventor, Chief Executive Officer, Integrated Services,
Incorporated, Lake Oswego, Oregon; Dr. Raymond Damadian,
Inventor, President and Chairman, Fonar, Incorporated, Inventor
and Manufacturer of Magnetic Resonance Imaging (MRI); Mr. James
Chandler, President of the National Intellectual Property Law
Institute, Washington, D.C.; Dr. Robert Rines, Inventor,
Founder, and former President of the Franklin Pierce Law
Center; Ms. Diane L. Gardner, Patent Agent, Molecular
Biosystems, Incorporated, and President of the Intellectual
Property Law Society at Thomas Jefferson School of Law; Dr.
Paul Crilly, Inventor, and Associate Professor of Electronic
Engineering University of Tennessee, Knoxville; and Dr. David
L. Hill, President, Patent Enforcement Fund, Incorporated,
Southport, Connecticut.
On May 15, 1996, the Subcommittee ordered favorably
reported a Committee Print incorporating five bills pending
before the Subcommittee, including provisions contained in H.R.
1732, by voice vote, a quorum being present. A bill containing
the Committee Print favorably reported by the Subcommittee was
introduced as H.R. 3460. On June 11, 1996, the Committee on the
Judiciary considered H.R. 3460. Two amendments were offered:
(1) Congressman Moorhead offered an en bloc amendment making
various technical, clarifying and conforming changes, and (2)
Congressmen Hyde and Conyers offered an amendment to the short
title of H.R. 3460 to rename the bill the ``Moorhead-Schroeder
Patent Reform Act.'' Both of the amendments passed by voice
vote, a quorum being present and the bill H.R. 3460, as
amended, was ordered favorably reported by voice vote, a quorum
being present (H. Rept. 104-784).
Patent Term, H.R. 359
H.R. 359 was introduced by Congressman Dana Rohrabacher.
This legislation proposed to set the term of a patent at the
greater of 17 years from the date a patent is granted or twenty
years from the date of earliest filing of a patent application.
In the 103rd Congress, the House approved implementing
legislation of the General Agreement on Tariffs and Trade by a
vote of 288-146. H.R. 359 would have effectively reversed a
provision of that implementing legislation that fixed patent
term at twenty years from the date of earliest filing of the
patent application. A hearing was held on H.R. 359 on November
1, 1995. Testimony was received from Mr. Andrew Kimbrell,
Director, International Center for Technology Assessment; Mr.
Kenneth Addison, Oklahoma Inventors Congress; Dr. Raymond
Damadian, President and Chairman, Fonar Corporation; The
Honorable Dana Rohrabacher, Representative, California, 45th
District; Mr. James L. Fergason, Inventor, Founder and
President of Optical Shields, Incorporated, Menlo Park,
California; Mr. Mark A. Lemley, Assistant Professor, School of
Law, University of Texas at Austin; Mr. Thomas W. Buckman,
Inventor, Vice President, Patents and Technology, Illinois Tool
Works, Incorporated, Glenview, Illinois, representing the
National Association of Manufacturers; Mr. William D. Budinger,
Inventor, Chairman & Chief Executive Officer, Rodel,
Incorporated, and Chair of the Technology and Innovation
Section of the White House Conference on Small Business; Mr.
Edward Stead, Vice President, General Counsel & Secretary,
Apple Computer, Incorporated, testifying on behalf of the
Information Technology Industry Council; Mr. Roger May,
Assistant General Counsel, Ford Motor Company, Member of the
Michigan Patent Law Association; Mr. Stephen Barram, Inventor,
Chief Executive Officer, Integrated Services, Incorporated,
Lake Oswego, Oregon; Dr. Raymond Damadian, Inventor, President
and Chairman, Fonar, Incorporated, Inventor and Manufacturer of
Magnetic Resonance Imaging (MCI); Mr. James Chandler, President
of the National Intellectual Property Law Institute,
Washington, D.C.; Dr. Robert Rhines, Inventor, Founder, and
former President of the Franklin Pierce Law Center; Ms. Diane
L. Gardener, Patent Agent, Molecular Biosystems, Incorporated,
and President of the Intellectual Property Law Society at
Thomas Jefferson School of Law; Dr. Paul Crilly, Inventor, and
Associate Professor of Electronic Engineering University of
Tennessee, Knoxville; and Dr. David L. Hill, President, Patent
Enforcement Fund, Incorporated, Southport, Connecticut.
Testimony on H.R. 359 was also heard at the June 8, 1995
hearing on H.R. 1732, H.R. 1733 and H.R. 632. Although H.R. 359
offered a seemingly simple solution to a complex issue, the
Subcommittee hearings revealed that it created more problems
than it solved. On May 15, 1996, the Subcommittee met in open
session. Subcommittee Chairman Moorhead moved to favorably
report H.R. 359 to the full Judiciary Committee. The
Subcommittee rejected the motion to order that H.R. 359 be
favorably reported by a vote of 12 to 2.
Medical Procedures, H.R. 1127
H.R. 1127, introduced by Representatives Ganske and Wyden,
proposed to preclude the issuance of a patent for any invention
of a method or process for performing a surgical or medical
procedure, administering a surgical or medical therapy, or
making a medical diagnosis. H.R. 1127 proposed to exempt those
methods or processes which are performed by a machine,
manufacture, or composition of matter which is itself
separately patentable. The version that passed as part of
Public Law 104-208 did not preclude the issuance of a patent.
Instead, it provided doctors a defense to patent infringement
of any invention of a method or process for performing a
surgical or medical procedure, administering a surgical or
medical therapy, or making a medical diagnosis.
The Subcommittee held hearings on H.R. 1127 on October 19,
1995. Testimony was received from the following witnesses: The
Honorable Greg Ganske, U.S. House of Representatives, 4th
District, Iowa; The Honorable Ron Wyden, U.S. House of
Representatives, 3rd District, Oregon; G. Lee Skillington,
Counsel, Office of Legislative and International Affairs,
Patent and Trademark Office United States Department of
Commerce; Dr. Samuel L. Pallia, The Lear Eye Clinic, Sun City,
Arizona; Dr. Jack Singer, Hitchcock Clinic, Randolph, Vermont;
Dr. Charles D. Kelman, President, American Society of Cataract
& Refractive Surgery; Dr. William D. Noonan, Klarquist Sparkman
Campbell Leigh & Whinston, Patent, Trademark and Copyright
Law--Litigation and Licensing; Dr. H. Dunbar Hoskins, Jr.,
Executive Vice President, American Academy of Ophthalmology;
Mr. Donald R. Dunner, Chair, Section of Intellectual Property
Law, American Bar Association.
No Judiciary Committee markups were held on H.R. 1127. A
provision containing a modified version of H.R. 1127 was
included in H.R. 3814, the Omnibus Appropriations Act. It is
Public Law 104-208.
Trademarks
Federal Trademark Dilution, H.R. 1295
H.R. 1295 was introduced by Subcommittee Chairman
Moorhead, Mr. Sensenbrenner, Mr. Coble, Mr. Canady of Florida,
Mr. Goodlatte, Mr. Bono and Mr. Boucher. The purpose of H.R.,
1295 is to protect famous trademarks from subsequent uses that
blur the distinctiveness of the mark or tarnish or disparage
it, even in the absence of a likelihood of confusion. H.R. 1295
does this by amending Section 43 of the Trademark Act of 1946
to add a new subsection to provide protection against another's
commercial use of a famous mark which results in dilution of
such mark. Prior to the enactment of H.R. 1295, the nature and
extent of the remedies against trademark dilution varied from
state to state and, therefore, provided unpredictable and
inadequate results for the trademark owner. The federal remedy
provided in H.R. 1295 against trademark dilution will bring
uniformity and consistency to the protection of famous marks
and is also consistent with our international obligations in
the trademark area.
The Subcommittee held a hearing on H.R. 1295 on July 19,
1995. Testimony was received from the following witnesses: Mr.
Philip G. Hampton II, Assistant Commissioner for Trademarks of
the Patent and Trademark Office, United States Department of
Commerce; Ms. Mary Ann Alford, Vice President and Assistant
General Counsel of the Intellectual Property, Reebok
International, Ltd. and Executive Vice President, International
Trademark Association; Mr. James K. Baughman, Assistant General
Counsel of the Campbell Soup Company Nils Victor Montan, Vice
President and Senior Intellectual Property Counsel Warner
Brothers; Mr. Thomas E. Smith, Chair, Section of Intellectual
Property Law of the American Bar Association; Mr. Jonathan E.
Moskin, Attorney at Law of Pennie & Edmonds Law Firm; and Mr.
Gregory W. O'Connor, General Patent Counsel & Assistant
Secretary of Samsonite Corporation, with additional material
submitted by Mr. Michael K. Kirk, Executive Director of the
American Intellectual Property Law Association.
On July 27, 1995, the Subcommittee met in open session and
ordered favorably reported the bill H.R. 1295, as amended, by a
voice vote, a quorum being present. On October 17, 1995, the
full Committee met in open session and ordered favorably
reported the bill H.R. 1295 by a voice vote, a quorum being
present (H. Rept. 104-374). H.R. 1295 passed the House under
suspension of the rules on December 12, 1995 and was
subsequently passed by the Senate, sent to the President and
signed into law on January 16, 1996. It is Public Law 104-98.
Anticounterfeiting, H.R. 2511
H.R. 2511 was introduced by Mr. Goodlatte, Chairman Hyde,
Mr. Conyers, Subcommittee Chairman Moorhead, Mr. McCollum, Mr.
Frank of Massachusetts, Mr. Gekas, Mr. Smith of Texas, Mr.
Coble, Mr. Canady of Florida, Mr. Bono, Mr. Heineman, Mr.
Flanagan and Mr. Davis. Because of the high profit potential
and low risk of meaningful prosecution, criminal counterfeiting
has grown tremendously over the past several years and has been
increasingly tied to organized crime. The purpose of H.R. 2511
is to prevent counterfeiting of copyrighted and trademarked
goods and services and to ensure that counterfeit goods
produced elsewhere cannot enter the United States. The act
addresses this problem by amending both criminal and civil
laws. H.R. 2511 includes trafficking in counterfeit goods or
services as predicate offenses subject to the Racketeer
Influenced and Corrupt Organizations (RICO) provisions of the
criminal code. It also amends civil laws to ensure that
imported counterfeits are seized and destroyed and allows
trademark owners to opt for judicially determined statutory
damages, rather than actual damages.
The Subcommittee held a hearing on H.R. 2511 on December 7,
1995. Testimony was received from the following witnesses: Mr.
Philip G. Hampton II, Assistant Commissioner for Trademarks at
the Patent and Trademark Office, U.S. Department of Commerce;
Mr. Leonard S. Walton, Deputy Assistant Commissioner of the
Office of Investigations, United States Customs Service (Mr.
Walton did not submit a written statement for the record but
did offer responses to questions of the Members); Ms. Catherine
Simmons-Gill, President of the International Trademark
Association; Ms. Angela Small, Vice President of Legal Affairs
for Saban Entertainment, Inc.; and Mr. John Bliss, President of
the International Anticounterfeiting Coalition.
On December 13, 1995, the Subcommittee met in open session
and adopted the following two amendments to the bill: (1) one
providing for technical and clarifying changes and (2) one
providing for the addition of 18 U.S.C. Sec. 2319A to the list
of intellectual property violations that are subject to RICO
provisions in Section 2 of the original bill. The Subcommittee
ordered the bill H.R. 2511 be favorably reported, as amended,
by a voice vote, a quorum being present. On March 12, 1996, the
full Committee met in open session and ordered that the bill,
H.R. 2511, be favorably reported as introduced, by a voice
vote, a quorum being present (H. Rept. 104-556). H.R. 2511 was
passed by the House under suspension of the rules on November
20, 1995 and sent to the President as S. 1136 (Sponsored by
Senator Hatch) and was signed into law. It is Public Law 104-
153.
Madrid Protocol Implementation Act, H.R. 1270
H.R. 1270, introduced by Subcommittee Chairman Moorhead,
Mr. Sensenbrenner, Mr. Coble, Mr. Canady of Florida, Mr.
Goodlatte, Mr. Bono and Mr. Boucher, would implement the Madrid
Protocol the moment the United States ratifies the treaty.
As with many intellectual property rights, there are
international agreements relating to the registration and
protection of trademarks. On June 27, 1989, at a Diplomatic
Conference in Madrid, Spain, the parties to the Madrid
Agreement signed the Madrid Protocol (Protocol) relating to the
international registration of marks. The Protocol provides for
an international trademark registration system administered by
the World Intellectual Property Organization (``WIPO'').
H.R. 1270 includes no substantive changes to U.S. trademark
law. The provisions detail the procedural changes necessary to
accommodate the international registration system. The U.S.
Patent and Trademark Office will be authorized to accept
applications for international registration which then will be
forwarded to WIPO for processing and further forwarded by WIPO
to the participating countries designated by the applicant.
The availability of a centralized and simplified
registration procedure which would permit registration in a
number of countries is viewed as beneficial to U.S. trademark
owners. U.S. trademark owners will not be required to file
under the international registration system. The applicant can
still file in each individual country if it so chooses.
One issue outstanding relating to the Protocol must be
resolved before the Protocol is forwarded by the Administration
to the Senate for ratification. The issue involves the
provision relating to the voting rights of the participating
parties to the Protocol. This is a provision of the Protocol
and not a provision of H.R. 1270. The issue is whether the
European Union (EU), the intergovernmental organization
responsible for the Community Trade Mark system should have a
separate vote in addition to individual member country votes.
The Subcommittee held a hearing on H.R. 1270 on July 19,
1995. Testimony was received from the following witnesses: Mr.
Philip G. Hampton II, Assistant Commissioner for Trademarks of
the Patent and Trademark Office, United States Department of
Commerce; Ms. Mary Ann Alford, Vice President and Assistant
General Counsel of the Intellectual Property, Reebok
International, Ltd. and Executive Vice President, International
Trademark Association; Mr. James K. Baughman, Assistant General
Counsel of the Campbell Soup Company Nils Victor Montan, Vice
President and Senior Intellectual Property Counsel Warner
Brothers; Mr. Thomas E. Smith, Chair, Section of Intellectual
Property Law of the American Bar Association; Mr. Jonathan E.
Moskin, Attorney at Law of Pennie & Edmonds Law Firm; and Mr.
Gregory W. O'Connor, General Patent Counsel & Assistant
Secretary of Samsonite Corporation, with additional material
submitted by Mr. Michael K. Kirk, Executive Director of the
American Intellectual Property Law Association.
On July 27, 1995, the Subcommittee met in open session and
ordered favorably reported the bill H.R. 1270, by a voice vote,
a quorum being present. H.R. 1270 was not called up by the full
Committee.
Department of Agriculture Trademark of `Woodsy Owl'', H.R. 1269
H.R. 1269 was introduced by Subcommittee Chairman Moorhead,
Mr. Sensenbrenner, Mr. Coble, Mr. Bono and Mr. Boucher at the
request of the Department of Agriculture to authorize the
Secretary to prescribe by regulation the trademarked
representation of the U.S. environmental symbol, ``Woodsy
Owl''. ``Woodsy Owl'' and his slogan ``Give a Hoot, Don't
Pollute'' is recognized by over 70 percent of all American
households and over 90 percent of households which have
children under age 10. ``Woodsy's'' costume is 26 years old and
permission from Congress is required to assist the redesigning
of ``Woodsy'' for the children of the 90's.
A hearing on H.R. 1269 was held by the Subcommittee on
April 5, 1995. Testimony was received by Mr. H. Dieter Hoinkes,
Senior Counsel, Office of Legislative and International
Affairs, Patent and Trademark Office, United States Department
of Commerce. Testimony anticipated by the Department of
Agriculture was not received. No markups were held on H.R.
1269.
Other Intellectual Property Rights
Database Protection, H.R. 3531
H.R. 3531, the ``Database Investment and Intellectual
Property Antipiracy Act of 1996,'' was introduced by
Subcommittee Chairman Moorhead. The proposal is aimed at
stimulating the creation of databases and encouraging fair
competition among database compilers. It is intended to prevent
actual or threatened competitive injury from misappropriation
of substantial portions of databases. The bill includes a broad
exemption for any insubstantial uses of databases, and it does
not prevent the independent creation of a database. The bill
avoids conferring any monopoly or ownership of information.
No hearings or markups were held on H.R. 3531.
Oversight Activities
Digital Performance Rights in Sound Recordings
Negotiations took place at Subcommittee Chairman Moorhead's
urging between the Recording Industry Association of America,
and the performing rights licensing societies (ASCAP, SESAC and
BMI) regarding royalty structures under the newly established
performance right. A compromise was reached, agreed to by the
Subcommittee, adopted and incorporated into both H.R. 1506
(S.227) which was signed into law November 1, 1995 as P.L. 104-
39.
Fairness in Music Licensing
The Subcommittee sponsored three negotiating sessions (May
24, June 23 and July 28, 1995) between representatives of
ASCAP, BMI and SESAC and the Music Licensing Fairness Coalition
(restaurateurs, retailers, religious broadcasters, etc.) in an
effort to resolve issues raised by current music licensing
practices. In addition, Senator Hank Brown of Colorado held
three meetings in his office in November and December, 1995 in
an effort to resolve the outstanding issues.
To date, no agreement among the parties has been reached.
ASCAP, BMI and SESAC are willing to exempt establishments that
are 3,500 square feet or less from having to pay for music that
is broadcast over T.V. or radio. The Coalition is seeking an
exemption for establishments that are 5,000 square feet or
less.
Another fairness issue has been raised by the religious
broadcasters regarding their ability to obtain a per program
license that reflects their limited use of music. The religious
broadcasters contend that they are forced to take a blanket
license from ASCAP and BMI which covers the entire musical
repertories of those organizations, because ASCAP and BMI make
the current per program license more expensive than a blanket
license, and therefore not a viable alternative. ASCAP and BMI
resist doing anything on this issue because it is currently in
litigation and therefore should be left to the courts.
The negotiations produced some progress, but were
ultimately not successful in resolving the issues.
Satellite Home Viewer Act Interpretation
A problem exists in interpreting the 1988 Satellite Home
Viewer Act and its 1994 Amendments as it relates to satellite
programming carriers and local network affiliates on measuring
reception quality. Those living in areas of the U.S. where a
broadcast signal from a local network affiliate is not strong
enough are entitled to subscribe to satellite carrier services
for network programming from a distant rather than a local
affiliate. A disagreement exists over measuring signal
strengths. Subcommittee Chairman Moorhead requested that the
broadcasters and the satellite carriers convene negotiations in
October, 1995. Negotiations between the broadcast and satellite
industries were initiated with an industry meeting in New York
City on March 31, 1995. Two subsequent meetings between
industry representatives were held, one in New York City, the
other in Chicago, and counsel and engineering consultants for
the parties have corresponded and conferred on numerous
occasions through telephone conference calls. Regrettably, a
final agreement is yet to be achieved.
Madrid Protocol
The Subcommittee has supported U.S. accession to the Madrid
Protocol for the Registration of Trademarks for many years. A
problem in allowing ratification to occur involves a provision
of the protocol relating to the voting rights of the
participating parties. The issue is whether the European Union
(EU), the intergovernmental organization responsible for the
Community Trade Mark system should have a separate vote in
addition to individual member country votes.
The U.S. views the additional vote as an expansion of the
role of intergovernmental organizations and their members. The
U.S. had expected that the EU would agree to restrict this
issue to this Protocol and that it would not be used as a basis
for other agreements. This has not proven to be the situation.
The extra vote has been requested by the EU in other
negotiations citing the Protocol as precedent. The U.S. does
not want to have the Protocol used as precedent for any other
negotiations.
Subcommittee Chairman Moorhead called for negotiations with
the State Department to develop an innovative method for
allowing accession without creating a detrimental precedent. A
staff negotiation meeting was held in September, 1995.
Subcommittee Chairman Moorhead, Chairman Hyde, Mrs. Schroeder
and Mr. Conyers went to Brussels to meet with European
Commission Members on the problem. A follow-up meeting was held
in Subcommittee Chairman Moorhead's Office, attended by
Chairman Hyde and Mrs. Schroeder, in February, 1996. PTO and
State Department legal and policy staff met several times to
draft a formal de marche to present to the EU. Unfortunately,
the State Department reported that it could not find a
compromise position and recommended that accession not occur in
any form.
Copyrighted Works on the Internet
Subcommittee Chairman Moorhead called for negotiations
regarding the issue of on-line service provider liability and
designated Subcommittee Member Bob Goodlatte of Virginia to
lead these negotiations. Seven negotiation sessions occurred
from February-May, 1996 in Room B-352 Rayburn Building. The
issue of on-line service provider liability revolves around the
responsibility service providers must bear for infringing
material which either resides on or passes through their
servers. Much of the infrastructure used in the Internet system
is owned by service provider companies. Almost everyone uses
telephone lines to access the Internet through modems connected
to their computers. The owners of these servers and lines who
provide much of the infrastructure do not want to be held
liable for direct copyright violations of others occurring on
their servers or passing through their lines. Further, the
phone companies envision a future where Internet and telephone
services are merged and it is important to establish a workable
system now to allow that exploitation to occur.
The service providers and copyright owners were close to
compromise language which would grant an incentive to copyright
owners to notify service providers of infringing material over
which the service provider has control. Under the compromise
language, if the service provider is able to remove the
material and does so, it can relieve itself of contributory
infringement or vicarious liability under the copyright laws.
There are also incentives to encourage service providers to
encourage users to respect copyrights. A solution has not yet
been found, although much progress was made this Congress.
Exemption in the Copyright Act for the Repair of Computers
Subcommittee Chairman Moorhead requested that the Copyright
Office hold negotiations between the computer service
maintenance industry and the software providers to draft
language which will provide a tailored exemption in the
Copyright Act for the routine maintenance of computers. The
negotiations ended and the Copyright Office presented a draft
bill amendment to Subcommittee Chairman Moorhead in early
March, 1996. The amendment was incorporated at full Committee
into H.R. 1861, the ``Copyright Clarifications Act of 1996.''
Copyright Term Extension
At the request of Subcommittee Chairman Moorhead, the
Copyright Office is hosting negotiations between the library
community and the copyright owners on extension provisions
affecting libraries' ability to obtain copies of works. Several
sessions were held, and a compromise recommendation was
forwarded to the Chairman by the Copyright Office.
Protection of Photofinishers
At the request of Subcommittee Chairman Moorhead and
Representative Coble of North Carolina, the Copyright Office
began negotiations between photographer copyright owners and
photofinishers over the problem of the making of unauthorized
copies of photographs. Photofinishers are concerned that a
strict interpretation of the Copyright Act will infringe upon
their ability to make duplicates of almost any photograph and
cause harm to the U.S. photofinishing industry. Representative
Coble met with the Register of the Copyright Office to discuss
these concerns. To supplement information received and to allow
all interested parties an additional opportunity to address the
issues fully, the Copyright Office held a public hearing on
June 26, 1996. The Office is in the process of considering the
hearing testimony and all comments and deciding what action, if
any, should be taken. Further oversight of these issues is
expected during the 105th Congress.
Fair Use Exemption
On September 27, 1996, the Subcommittee adopted a
nonlegislative report relating to Fair Use Guidelines for
Educational Multimedia.
Under the Copyright Act of 1976, copyright owners have the
exclusive right to reproduce, prepare derivative works,
distribute, perform, display, transfer ownership, rent or lend
their creations. Under the same Act, the ``fair use'' exemption
places a limit on these exclusive rights to promote free
speech, learning, scholarly research and open discussion.
Accordingly, under the Act, educators may use portions of
copyrighted material if the purpose and character of the use is
educational in nature, previously published, not a substantial
part of the entire work and if the marketability of the work is
not impaired by the use. These vague standards do not provide
much specific guidance for educators, scholars and students,
and are fairly subjective in their interpretation.
Because of the vague nature of the exemption, shortly after
Congress passed the Copyright Act in 1976, a group of
publishers, authors and educators gathered to agree on an
interpretation of the fair use exemption which would in turn
provide more specific guidelines that educators could follow
and be reasonably sure that they would not be in violation of
the copyright law.
These guidelines were made part of the Congressional Record
and became an unrelated part of a Judiciary Committee Report.
Many technological developments have occurred since 1976.
The fair use exemption contained in the Copyright Act must
again be interpreted by copyright owners and the educational
community to allow educators to apply the Act in light of these
new technologies. To that end, the Consortium of College and
University Media Centers (``CCUM'') convened a diverse group of
interested parties to draft guidelines which would provide
guidance on the application of the fair use exemption by
educators, scholars and students in creating multimedia
projects that include portions of copyrighted works, for their
use in noncommercial educational activities, without having to
seek the permission of copyright owners. These guidelines form
the body of this nonlegislative report.
These guidelines do not represent a legal document, nor are
they legally binding. They do represent an agreed upon
interpretation of the fair use provisions of the Copyright Act
by the overwhelming majority of institutions and organizations
affected by educational multimedia. A list of those
organizations who have supplied written endorsements for the
guidelines appears at the end of the guidelines.
While only the courts can decide whether a particular use
of a copyrighted work fits within the fair use exemption, these
guidelines represent the participants' consensus view of what
constitutes the fair use of a portion of a work which is
included in a multimedia educational project. The specific
portion and time limitations will help educators, scholars and
students more easily identify whether using a portion of a
certain copyrighted work in their multimedia program
constitutes a fair use of that work. They grant a relative
degree of certainty that a use within the guidelines will not
be perceived as an infringement of the Copyright Act by the
endorsing copyright owners, and that permission for such use
will not be required. The more one exceeds these guidelines,
the greater the risk that the use of a work is not a fair use,
and that permission must be sought.
These guidelines have the support of the U.S. Copyright
Office and the U.S. Patent and Trademark Office, whose letters
of endorsement for these guidelines are included in the report.
Ethical Standards for Federal Prosecutors and Prosecutorial Discretion
The Subcommittee has oversight over the Executive Office of
the United States Attorneys located in the Department of
Justice within each of the ninety-four federal districts in the
fifty states, Guam, the Northern Mariana Islands, Puerto Rico
and the Virgin Islands. The U.S. Attorney is the chief law
enforcement representative of the Attorney General, enforcing
federal criminal law and handling most of the civil litigation
in which the United States is involved.
On September 12, 1996, the Subcommittee held an oversight
hearing on the ethical standards required of federal
prosecutors and prosecutorial discretion. The following
witnesses testified at the Subcommittee hearing: the Honorable
Joseph M. McDade, Member of Congress, 10th District of
Pennsylvania; Mr. Seth P. Waxman, Associate Deputy Attorney
General, Office of the Deputy Attorney General, Department of
Justice; Mr. Tim Evans, Member of Board of Directors, National
Association of Criminal Defense Lawyers; Mr. Frederick J.
Krebs, President, American Corporate Counsel Association; and
Mr. Roger Pilon, Director, CATO Institute. In addition, the
American Bar Association submitted a written statement for the
record.
Historically, states have had the exclusive authority to
determine the membership of its bars and to regulate the
conduct of its members. States mandate the qualifications of
their attorneys in a variety of ways, including bar admission
exams, continuing legal education requirements, annual bar fees
and rules of ethics. Every state and the District of Columbia
have adopted rules of ethics, and many federal district courts
have adopted some or all of the rules of ethics of the state
where the courts sits, including some form of DR 7-104(A)(1) or
Rule 4.2 of the ABA Model Rules, known as the ``anti-contact
rule.''
On August 4, 1994, the Department of Justice (DOJ) issued a
final rule governing its attorneys contacts with represented
persons. This regulation sets out a new and different standard
governing a DOJ lawyers' contacts with represented persons. The
DOJ contends that this regulation will not result in a change
of law in the majority of the states, but to the extent that
any state or federal court would disagree, the Department
claims that ``[it] is intended to preempt and supersede the
application of state laws and rules and local federal court
rules to the extent that they relate to contacts by attorneys
for the government, and those acting at their direction or
under their supervision, with represented parties or
represented persons in criminal or civil law enforcement
investigations or proceedings; it is designed to preempt the
entire field of rules concerning such contacts.''
The power of the federal government to investigate and
prosecute suspected criminals is great and must never be
abused. Unlike private sector attorneys, the duty of federal
prosecutors goes well beyond zealous representation of their
clients within the boundaries of minimal ethical guidelines--
they have a duty to uphold the Constitution and to ensure that
justice prevails in every case. Consequently, the Department of
Justice's issuance of a rule that purports to exempt its own
attorneys from certain state bar and federal court ethical
rules drew sharp criticism from some federal courts, the
Conference of Chief Justices of the United States, the American
Bar Association, the National Association for Criminal Defense
Lawyers, the American Corporate Counsel Association and others.
The issuance of this rule, as well as its purported
justification and scope, raise a number of questions important
to the Subcommittee about how federal government prosecutors
conduct their litigation and to what extent Congress has
granted the Department of Justice the authority to regulate its
own conduct. Specifically, witnesses testified about: (1)
whether the Department of Justice has the authority to issue
any rules exempting its attorneys from state bar and federal
court ethical rules (and the anti-contact rule in particular),
(2) whether the Department of Justice should have the authority
to issue rules that exempt its attorneys from state bar and
federal court ethical rules, (3) whether the Department of
Justice's Office of Professional Responsibility has effectively
policed the conduct of federal prosecutors, (4) whether it is
an actual or apparent conflict of interest for the Department
of Justice to police the conduct of its own attorneys, and (5)
whether the Department's anti-contact rule or other policies
encourage the abuse of prosecutorial discretion. Continued
oversight is necessary to determine if legislation is needed in
this area.
Article III Courts
The Subcommittee on Courts and Intellectual Property
exercises the jurisdiction of the Committee on the Judiciary to
oversee the operation of the Article III courts. On March 14,
1996, the Subcommittee held a hearing regarding the federal
judiciary that served the dual purpose of being both a
legislative hearing as well as an oversight hearing.
Legislatively, the Subcommittee considered H.R. 1989, the
``Federal Courts Improvement Act of 1995'' which was introduced
by Subcommittee Chairman Moorhead and the ranking member, Mrs.
Schroeder, at the request of the Judicial Conference of the
United States.
The Judicial Conference is the policy making body of the
federal judiciary, and through a committee system evaluates
court operations. The Judicial Conference is supported by the
Administrative Office of the United States Courts. Also, the
circuit judicial councils of the regional circiuts have
statutory responsibility for certain administrative and
operational matters. The fifty-one provisions in H.R. 1989 were
developed within the judiciary and approved by the Judicial
Conference. In their consideration of these legislative
provisions that were intended to improve the organization,
management, and operation of the federal judiciary,
Subcommittee Members were also afforded the opportunity to
conduct oversight of the day-to-day operations of the federal
judiciary. While H.R. 1989 ultimately became public law as
S.1887, the Subcommittee anticipates that many of the issues
raised in the context of this legislation will form the basis
for further oversight of the federal judiciary.
Summary of Oversight Plan and Implementation
Pursuant to clause 2(d) of Rule X of the House, the
Committee on the Judiciary submitted, in February, 1995, an
oversight plan including matters to be referred to the
Subcommittee on Courts and Intellectual Property. Following is
a summary of the portions of that plan relating to the
Subcommittee and a summary of the Subcommittee's activities to
implement the oversight plan.
Article III Courts
In its oversight plan, the Subcommittee proposed to
continue to devote considerable time and resources to improving
the delivery of justice by Article III Federal courts through
its oversight responsibility for (1) the Administrative Office
of the U.S. Courts; (2) the Federal Judicial Center; (3) the
Judicial Conference of the United States; and (4) United States
Attorneys within the Department of Justice.
Subcommittee hearings and legislation focused on the needs
and recommendations of the Administrative Office of U.S. Courts
and the federal judiciary, recommended changes under the Rules
Enabling Act, existing arbitration programs in U.S. District
Courts, and prosecutorial policies of U.S. Attorneys.
The U.S. Copyright System
The Subcommittee also proposed to continue to devote
considerable time to oversee the operation of the copyright
system in a world of ever changing technology, recognizing that
it is vital to the protection of our copyright industry that
the Subcommittee be vigilant in its exercise of its
jurisdiction to carry out its constitutional mandate to
``promote the progress of science and useful arts, by securing
for limited times to authors and inventors the exclusive right
to their respective writings and discoveries;'' (Art. I, Sec.
8, cl. 8).
Subcommittee hearings and legislation focused on the
operation of the U.S. Copyright Office, which is part of the
Library of Congress, greater protection for copyrighted
information that could be accessed by users of the internet,
the licensing of musical works by performance rights licensing
associations to bars, restaurants, and other venues, annual
losses of U.S. property to piracy in China, South Korea, Japan
and South America, and a possible protocol to the Berne
Convention for the Protection of Literary and Artistic Works.
The U.S. Patent and Trademark Systems
The Subcommittee proposed to exercise its oversight
responsibilities for the operation of the U.S. Patent and
Trademark Office.
Subcommittee hearings and legislation focused on government
corporation status for the USPTO, the cost to U.S. companies
and inventors of applying for and obtaining separate patents in
each of 150 or more countries, the fairness and status of
reexamination procedures for applicants, and the effects of the
new patent term.
SUBCOMMITTEE ON CRIME
BILL McCOLLUM, Florida, Chairman
CHARLES E. SCHUMER, New York STEVEN SCHIFF, New Mexico
ROBERT C. SCOTT, Virginia STEPHEN E. BUYER, Indiana
ZOE LOFGREN, California HOWARD COBLE, North Carolina
SHEILA JACKSON LEE, Texas FRED HEINEMAN, North Carolina
MELVIN L. WATT, North Carolina ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
Tabulation of subcommittee legislation and activity
Legislation referred to the Subcommittee.......................... 246
Private legislation referred to the Subcommittee.................. 1
Legislation reported favorably to the full Committee.............. 20
Legislation reported adversely to the full Committee.............. 0
Legislation reported without recommendation to the full Committee. 0
Legislation reported as original measure to the full Committee.... 0
Legislation discharged from the Subcommittee...................... 3
Legislation pending before the full Committee..................... 5
Legislation reported to the House................................. 18
Legislation discharged from the Committee......................... 5
Legislation pending in the House.................................. 0
Legislation passed by the House................................... 23
Legislation pending in the Senate................................. 9
Legislation vetoed by the President............................... 0
Legislation enacted into public law............................... 14
Legislation on which hearings were held........................... 28
Days of hearings (legislative and oversight)...................... 48
Jurisdiction of the Subcommittee
The Subcommittee on Crime has jurisdiction over the Federal
Criminal Code, drug enforcement, sentencing, parole and
pardons, Federal Rules of Criminal Procedure, prisons, the
Independent Counsel Act, law enforcement assistance to State
and local governments, and other appropriate matters as
referred by the Chairman, and relevant oversight.
Highlights of the Subcommittee's activities during the
104th Congress include the following:
THE EFFECTIVE DEATH PENALTY ACT--HABEAS CORPUS REFORM
On January 20, 1995, the Subcommittee held a hearing on
issues related to H.R. 3, the ``Taking Back Our Streets Act,''
which was introduced on January 4, 1995, as part of House
Republicans ``Contract with America'' proposal. The
Subcommittee heard testimony regarding the need for habeas
corpus reform from hearing witnesses Gerald Goldstein,
President of the National Association of Criminal Defense
Lawyers; Larry Yackle, Professor of Law at the Boston
University School of Law; and Susan Boleyn, Senior Assistant
Attorney General for the State of Georgia.
On January 30, 1995, Subcommittee Chairman McCollum
introduced H.R. 729, the ``Effective Death Penalty Act of
1995'' which reforms death row appeals procedures in three
important ways: (1) It establishes strict time limits for
filing habeas petitions and, in some instances, for judicial
consideration of them; (2) It requires federal judges to deny
petitions filed by persons convicted in state court proceedings
if the state court reasonably interpreted applicable federal
law and made a reasonable determination of the facts in
question in the case; and (3) It allows defendants only one
bite at the apple by barring successive habeas corpus petitions
except in the rarest of circumstances. H.R. 729 was held at the
full Committee and was ordered favorably reported to the House,
as amended, on February 1, 1995, by a vote of 24 yeas to 10
nays. On February 8, 1995, H.R. 729 was reported favorably to
the House by Mr. McCollum (H. Rept. 104-23) and passed the
House as amended, with additional floor amendments, by a vote
of 297 yeas to 132 nays.
Amended provisions of H.R. 729 were included in S. 735, the
``Antiterrorism and Effective Death Penalty Act of 1996.'' The
conference report on S. 735 passed the House by a vote of 293
yeas to 133 nays and was approved by the President on April 24,
1996 (P.L. 104-132).
TRUTH-IN-SENTENCING AND PRISON LITIGATION REFORM
On January 19, 1995, the Subcommittee held a hearing on
issues related to H.R. 3, the ``Taking Back Our Streets Act,''
which was introduced on January 4, 1995. The Subcommittee heard
testimony from the Attorney General of the Commonwealth of
Virginia, James S. Gilmore, III; and the Attorney General of
the State of California, Daniel E. Lungren, regarding the need
for violent repeat offenders to serve longer portions of their
sentences and the need for adequate prison resources. The
Subcommittee also heard testimony from state and local law
enforcement officials regarding the extent to which federal
courts have seized control over state prisons and local jails.
Witnesses included Lynn Abraham, District Attorney for the city
of Philadelphia, and Patrick Boyle, Detective on the
Philadelphia Police Department, whose son, Patrolman Danny
Boyle, also of the Philadelphia Police Department, was murdered
by a man who had been released early from prison as a result of
a federally imposed prison cap. The last witness on the panel
was Alvin J. Bronstein, Director of the American Civil
Liberties Union Prison Project.
On January 25, 1995, Subcommittee Chairman McCollum
introduced H.R. 667, the ``Violent Criminal Incarceration Act
of 1995.'' Title I of H.R. 667 replaces Title II, grants for
state prisons, of the Violent Crime Control and Law Enforcement
Act of 1994. H.R. 667 provides $10.5 billion in funding for the
states for the purpose of incarcerating serious violent felons.
Half the funds are available to states that are making progress
in holding violent criminals accountable. Such states can
qualify for funds it they are: (1) incarcerating a higher
percentage of convicted violent offenders; (2) increasing the
average length of violent offenders' sentences; and (3)
requiring that such offenders actually serve a higher
percentage of their sentences. The other half of the funds are
available for states that enact truth-in-sentencing laws which
require violent criminals to serve at least 85 percent of their
sentences.
Titles II and III of H.R. 667 address prison litigation
reform. Title II requires that the federal court-ordered relief
in suits challenging prison conditions be limited to correcting
specific violations of inmates' constitutional rights. The
court must give substantial weight to any adverse impact on
public safety or the operation of a criminal justice system
caused by the relief. The bill also places restrictions on
court-ordered prison population caps, including: prohibiting
caps unless the court had previously entered an order for less
intrusive relief that failed to remedy the deprivation of the
federal right; and, only permitting such caps if the court
finds that crowding is the primary cause of the violation of a
federal right, and that no other relief will remedy the
violation of the federal right. H.R. 667 also allows any state
or local official whose jurisdiction or function includes the
prosecution or custody of persons who may be effected by a
population cap to have standing to sue to terminate the cap.
Title III of H.R. 667 requires prisoners to exhaust the
administrative remedies established by the corrections system
before they may file a lawsuit in federal court. Title III also
provides for an expedited process for judges to screen out
frivolous cases before they go to trial.
H.R. 667 was held at the full Committee and was ordered
favorably reported to the House, amended, on February 1, 1995,
by a vote of 23 yeas to 11 nays. On February 6, 1995, H.R. 667
was reported favorably to the House by Mr. McCollum (H. Rept.
104-21). On February 10, 1995, the House passed H.R. 667, with
additional floor amendments, by a vote of 265 ayes to 156 nays.
Provisions of H.R. 667 were included in H.R. 2076, the
Departments of Commerce, Justice, State, the Judiciary, and
Related Agencies Appropriations Bill for FY 1996 which passed
the House on July 29, 1995. The conference report of H.R. 2076
was vetoed by the President on December 6, 1995. Provisions of
H.R. 667 were included in H.R. 3019, a bill making
appropriations for fiscal year 1996, which was introduced on
March 5, 1996. The conference report of H.R. 3019 was agreed to
on April 25, 1996, and was signed into law by the President on
April 26, 1996 (P.L. 104-134). Provisions of H.R. 667 were also
included, modified and funded in the H.R. 3610, making
appropriations for fiscal year 1997. H.R. 3610 was signed into
law on September 30, 1996 (P.L. 104-208).
LOCAL GOVERNMENT LAW ENFORCEMENT BLOCK GRANTS
On January 19 and 20, 1995, the Subcommittee held a hearing
on issues related to H.R. 3, the ``Taking Back Our Streets
Act,'' which was introduced on January 4, 1995. The
Subcommittee heard testimony from the Department of Justice,
state and local law enforcement, and academic and policy
experts about effective approaches to crime policy and
prevention. Witnesses for the panels included John Schmidt,
Associate Attorney General of the U.S. Department of Justice;
Victor Ashe, President of the U.S. Council of Mayors; Robert
Macy, District Attorney for Oklahoma City, Oklahoma; Carl Peed,
Sheriff of Fairfax County, Virginia; John Whetsel, President of
the International Association of Chiefs of Police; John
DiIulio, Professor at Princeton University and fellow with the
Brookings Institution; Lynn A. Curtis, President of the Milton
S. Eisenhower Foundation; Bennie Click, Chief of the Dallas,
Texas, Police Department; and Richard Gebelein, former Attorney
General for the State of Delaware and Superior Court Judge with
the Wilmington, Delaware, Drug Court Program.
On January 30, 1995, Subcommittee Chairman McCollum
introduced H.R. 728, the ``Local Government Law Enforcement
Block Grants Act of 1995.'' H.R. 728 repeals title I of the
1994 crime act--the ``COPS on the Beat''--and replaces it with
a block grant program to provide funds directly to units of
local government to assist them in their efforts to improve
public safety. The bill also repeals several federal prevention
programs prescribed in the 1994 act. H.R. 728 authorizes a
total of $10 billion for the block grants over five years, with
$2 billion to be distributed in each of fiscal years 1996
through 2000. The use of grant funds includes, but is not
limited to: hiring, training, and equipping law enforcement
officers and support personnel; enhancing school safety; and
establishing crime prevention programs. Units of local
government may use funds for purposes other than those
specifically identified, so long as they are used to reduce
crime and improve public safety. H.R. 728 requires that
localities contribute a 10 percent match and units of local
government can apply for funds each fiscal year. The formula
for determining grant amounts is based on the severity of crime
and the population of a locality.
H.R. 728 was held at the full Committee and was ordered
favorably reported to the House, amended, by a vote of 21 yeas
to 13 nays. On February 8, 1995, H.R. 728 was reported
favorably to the House by Mr. McCollum (H. Rept. 104-24). On
February 14, 1995, the House passed H.R. 728, with additional
floor amendments, by a vote of 238 ayes to 192 nays. Provisions
of H.R. 728 were included in H.R. 2076, the Departments of
Commerce, Justice, State, the Judiciary, and Related Agencies
Appropriations Bill for FY 1996 which passed the House on July
29, 1995. The conference report of H.R. 2076 was vetoed by the
President on December 6, 1995. Amended provisions of H.R. 728
were included in H.R. 3019, a bill making appropriations for
fiscal year 1996, which was introduced on March 5, 1996. The
bill provided $503 billion for the Local Government Law
Enforcement Block Grants Act and $1.4 billion for the 1994
crime act's ``COPS on the Beat'' program for FY 1996. The
conference report of H.R. 3019 was agreed to on April 25, 1996,
and was signed into law by the President on April 26, 1996
(P.L. 104-134). Provisions of H.R. 728 were also included,
modified and funded in H.R. 3610, making appropriations for
fiscal year 1997. H.R. 3610 was signed into law on September
30, 1996 (P.L. 104-208).
MANDATORY VICTIM RESTITUTION
On January 25, 1995, Subcommittee Chairman McCollum
introduced H.R. 665, the ``Victim Restitution Act of 1995.''
H.R. 665 replaces title III of H.R. 3, ``The Taking Back Our
Streets Act of 1995.'' Under current law a federal judge has
the discretion to order an offender to make restitution to the
victim, but is not required to do so. H.R. 665 mandates that
judges order criminals to pay full restitution to their victims
for all damages resulting from their crimes. It also gives
judges the discretion to order criminals to make restitution to
other persons who are affected by their crimes (e.g., family
members of victims).
H.R. 665 was held at the full Committee and ordered
favorably reported to the House, amended, on January 27, 1995.
On February 2, 1995, H.R. 665 was reported favorably to the
House, amended, by Mr. McCollum (H. Rept. 104-16). H.R. 665
passed the House on February 7, 1995 by a vote of 431 yeas to 0
nays. Victim restitution provisions similar to H.R. 665 were
included in S. 735, the ``Antiterrorism and Effective Death
Penalty Act of 1996,'' which was introduced on April 27, 1995.
The conference report on S. 735 passed the House by a vote of
293 yeas to 133 nays and was approved by the President on April
24, 1996 (P.L. 104-132).
EXCLUSIONARY RULE
On January 20, 1995, the Subcommittee held a hearing on
issues related to H.R. 3, the ``Taking Back Our Streets Act,''
which was introduced on January 4, 1996. The Subcommittee heard
testimony from Paul Larkin, Esq., a partner with the law firm
King and Spalding and E. Michael McCann, District Attorney of
Milwaukee County in Wisconsin and Chair of the Criminal Section
of the American Bar Association.
On January 25, 1995, Subcommittee Chairman McCollum
introduced H.R. 665, the ``Exclusionary Rule Reform Act of
1995.'' H.R. 666 provides for an exception to the Exclusionary
rule in federal court when law enforcement officers improperly
obtain evidence yet do so in the objectively reasonable belief
that their actions comply with the protections of the Fourth
Amendment to the Constitution.
H.R. 666 codifies the Supreme Court's decision in U.S. v.
Leon which held that evidence gathered by law enforcement
officials pursuant to a defective warrant, and therefore in
contravention of the Fourth Amendment, would nevertheless be
admissible in a criminal proceeding if the officers gathered
the evidence in the objectively reasonable belief that their
actions were proper at the time. The bill also legislatively
expands this ``good faith'' exception to situations where law
enforcement officials gather evidence without a warrant, yet
still can demonstrate that they acted with an objectively
reasonable belief that their actions were proper. It would also
make it clear that this exception would also apply to evidence
gathered in violation of a statute, regulation, or rule.
H.R. 666 was held at the full Committee and was ordered
favorably reported to the House, by a vote of 19 yeas to 14
nays on January 27, 1995. On February 6, 1995, H.R. 666 was
reported favorably to the House by Mr. McCollum (H. Rept. 104-
17). On February 8, 1995, the House passed H.R. 666, amended,
by a vote of 289 ayes to 142 nays. H.R. 666 was referred to the
Senate Committee on the Judiciary on February 9, 1995. No
further action was taken on H.R. 666 or exclusionary rule
reform in the 104th Congress.
CRIMINAL ALIEN DEPORTATION
On January 25, 1995, Subcommittee Chairman McCollum
introduced H.R. 668, the ``Criminal Alien Deportation Act of
1995.'' The bill added a number of provisions to the
immigration laws, such as adding alien smuggling and other
crimes involving obstruction of justice to the list of crimes
for which a alien legally present in the county may be
deported, limiting judicial challenges to deportation orders,
and providing a process by which non-violent criminal could be
deported. The bill also adds certain alien-smuggling crimes as
``predicate offences'' under the Racketeer Influenced and
Corrupt Organizations Act; and adds alien smuggling to the list
of crimes that the government may investigate with wiretaps,
when authorized by a Federal magistrate.
H.R. 668 was held at the full Committee and was ordered
favorably reported to the House, amended, by a vote of 22 yeas
to 8 nays on January 31, 1995. On February 6, 1995, H.R. 668
was reported favorably to the House by Mr. McCollum (H. Rept.
104-22). On February 10, 1995, the House passed H.R. 668,
amended, by a vote of 380 ayes to 20 nays. Provisions of H.R.
668 were included in S. 735, the ``Antiterrorism and Effective
Death Penalty Act of 1996.'' The conference report on S. 735
passed the House by a vote of 293 yeas to 133 nays and was
approved by the President on April 24, 1996 (P.L. 104-132).
THE WAR ON DRUGS
The Subcommittee held a number of oversight hearings on
illegal drug use in America and the enforcement of drug laws
and considered several pieces of legislation related to those
issues.
International Drug Trafficking
On March 30, 1995, the Subcommittee held an oversight
hearing on the enforcement of federal drug laws: strategies and
policies of the FBI and DEA. Specifically, the Subcommittee
sought to begin working with the two agencies to reinvigorate
the war on drugs. Between 1994 and 1996 there had been a
substantial erosion in nearly every category of anti-drug
activity. There had been a marked decline in the number of drug
traffickers prosecuted. Fewer assets were being seized and
forfeited. Drug interdiction had dropped, and resources for
fighting drug traffickers oversees has been dramatically
reduced. Witnesses for the hearing included Louis J. Freeh,
Director of the Federal Bureau of Investigation, and Thomas
Constantine, Administrator of the Drug Enforcement
Administration.
Cocaine Sentencing Policy
The 1994 crime act directed the U.S. Sentencing Commission
to study federal sentencing policy as it relates to possession
and distribution of all forms of cocaine. Specifically,
Congress required the Commission to report on the current
federal policy regarding differing penalties for powder cocaine
and crack cocaine offenses and to issue recommendations for the
retention or modification of the current sentencing scheme. On
May 1, 1995, the U.S. Sentencing Commission submitted to
Congress proposed amendments to the sentencing guidelines. The
27 proposed amendments included reduced penalties for crack
cocaine offenses. The Commission's amendments to the sentencing
guidelines were to take effect November 1, 1995, unless
Congress intervened. Under current law, it takes 500 grams of
powder cocaine to trigger the five-year mandatory minimum
penalty, and 5 grams of crack cocaine to trigger the same
penalty, or, 100 times as much powder as crack (a 100-to-1
quantity ratio).
On June 29, 1995, the Subcommittee held a hearing to
examine the Sentencing Commission's recommended changes to the
sentencing guidelines that would equalize penalties for similar
quantities of crack and powder cocaine. Witnesses for the
hearing included three of the seven members of the U.S.
Sentencing Commission: Richard Conaboy, Chairman and U.S.
District Court Judge for the Eastern District of Pennsylvania;
Wayne Budd, Commissioner; and Deanell Tacha, Commissioner, and
10th Circuit Judge, U.S. Court of Appeals. The Subcommittee
also heard testimony from Jo Ann Harris, Assistant Attorney
General, Criminal Division, U.S. Department of Justice; Judge
Lyle Strom, U.S. District Court Judge of the District of
Nebraska; Wade Henderson, Director of the NAACP; Richard
Cullen, Former United States Attorney in the Eastern District
of Virginia, and Member, Virginia Sentencing Commission; Dr.
Herbert Kleber, Executive Vice President and Medical Director
of the Center on Addiction and Substance Abuse (CASA), Columbia
University; Tim Nelson, Special Agent of the North Carolina
State Bureau of Investigation; and Dr. Jeffery Fagan, Professor
of Criminal Justice at Rutgers University.
On September 6, 1995, Subcommittee Chairman McCollum
introduced H.R. 2259, to disapprove the Sentencing Commission's
proposed amendments to the Sentencing Guidelines. In addition,
H.R. 2259 requires the U.S. Sentencing Commission to submit to
the Congress recommendations regarding changes to the statutes
and Sentencing Guidelines governing sentences for unlawful
manufacturing, importing, exporting, and trafficking of cocaine
and like offenses. The bill also specifies that such
recommendations shall propose revision of the drug quantity
ratio of crack cocaine to powder cocaine under the relevant
statutes and guidelines in a manner consistent with the ratios
set for other drugs.
The Subcommittee convened a session to mark-up H.R. 2259 on
September 7, 1995, and by a recorded vote of 7 yeas to 3 nays,
ordered the bill favorably reported to the full Committee. On
September 12, 1995, the Committee met to consider H.R. 2259,
and ordered it favorably reported to the House. On September
29, 1995, the Committee report was filed (H. Rept. 104-272)
and, on October 18, 1995, H.R. 2259 passed the House with an
amendment in the nature of a substitute made in order by the
rule by a vote of 332 yeas to 83 nays. The House then passed S.
1254, the Senate companion bill to H.R. 2259. On October 30,
1995, S. 1254 was signed into law (P.L. 104-38).
Marijuana Policy
On March 6, 1996, the Subcommittee held a hearing on
marijuana use in America. After years of decline, marijuana use
among young people has dramatically increased over the past
four years. The hearing explored reasons for marijuana's
increased popularity, the impact on the health and welfare of
our society, and examined potential solutions to the problem.
Witnesses for the hearing included: Dr. Eric Voth, Chairman of
the International Drug Strategy Institute; Donald Hayes,
D.A.R.E Officer in Alexandria, Virginia; Tom Hedrick, Vice-
Chairman of the Partnership for Drug Free America; Keith
Stroup, Executive Director of the National Organization for the
Reform of Marijuana Laws; Richard Brookhiser, Senior Editor of
the National Review; and Jeralyn Merritt, Attorney and Board
Member for the National Association of Criminal Defense
Lawyers.
Methamphetamine Policy
On October 26, 1995, the Subcommittee held a hearing on the
rising scourge of methamphetamine in America. Witnesses for the
hearing included: Thomas Constantine, Administrator for the
Drug Enforcement Administration; LT. Ed Mayer, task force
commander for the Jackson Country Narcotics Enforcement Team,
Jackson County, Oregon; Sgt. John Sanchez, with the Arizona
Department of Public Safety, Phoenix, Arizona; and David
Waller, Special Agent with the Florida Department of Law
Enforcement, Lakeland, Florida.
In addition, the Subcommittee held a hearing on H.R. 3852,
the ``Comprehensive Methamphetamine Control Act of 1996,'' on
September 5, 1996, H.R. 3852 contains increased penalties for
illegally importing precursor chemicals used to make
methamphetamine and establishes controls for over-the-counter
products also used to make methamphetamine. The Subcommittee
heard testimony from several witnesses including: Senator Orrin
Hatch, Chairman of the Senate Judiciary Committee and sponsor
of S. 1965, the Senate counterpart to H.R. 3852; Harold Wankel,
Chief of Operations at the Drug Enforcement Administration;
James Cope, President of the Nonprescription Drug Manufacturers
Association; and John Scheels, Director of Government Affairs
for the Eckerd Corporation.
On September 5, 1996, the Subcommittee was discharged from
further consideration of the bill and H.R. 3852 was marked up
in the full Committee on September 18, 1996. On September 25,
1996, the full Committee was discharged from consideration and
the bill was considered by the House. On September 26, 1996,
H.R. 3852 passed the House, amended, under suspension of the
rules, two-thirds affirmative vote required (386 yeas to 34
nays). On September 28, the Senate companion bill, S.1965, was
passed by the House in lieu of H.R. 3852. The bill was approved
by the President on October 3, 1996 (P.L. 104-237).
VIOLENCE AGAINST WOMEN
The Subcommittee considered several pieces of legislation
which addressed issues related to violence against women as a
continuation of Congress' efforts to protect those who are
particularly vulnerable to crime in America.
Anti-Stalking Legislation
On March 7, 1996, the Subcommittee held a hearing on
several miscellaneous bills, including H.R. 2980, the
``Interstate Stalking Punishment and Prevention Act of 1996.''
The sponsor of the bill, Congressman Ed Royce, testified on
behalf of the bill. On March 21, 1996, the Subcommittee held a
mark-up at which H.R. 2980 was favorably reported to the full
Committee, amended, by voice vote. On April 24, 1996, H.R. 2980
was marked up in the full Committee and ordered favorably
reported to the House, as amended. On May 6, 1996, the report
was filed (H. Rept. 104-577). On May 7, 1996, the bill was
passed by the House under suspension of the rules. On July 25,
1996, H.R. 2980 passed the Senate, amended. Shortly thereafter,
H.R. 2980 was included in H.R. 3230, the National Defense
Authorization Act for Fiscal Year 1997. H.R. 3230 was signed
into law by the President on September 23, 1996 (P.L. 104-201).
Rape Defined in Carjacking Offenses
On July 10, 1996, the Subcommittee considered and held a
mark-up of H.R. 3676, the ``Carjacking Correction Act of
1996,'' a bill to clarify the intent of Congress with respect
to federal carjacking laws, specifically, increasing penalties
for criminals who commit rape in the course of carjacking. H.R.
3676 was favorably reported by the Subcommittee to the full
Committee, amended. On September 10, 1996, the full Committee
marked up H.R. 3676, and ordered it favorably reported to the
House, amended. The report was filed on September 16, 1996 (H.
Rept. 104-787). On September 17, the bill passed the House, as
amended, under suspension of the rules by voice vote. H.R. 3676
passed the Senate on September 18, 1996, and was signed into
law on October 1, 1996 (P.L. 104-217).
Drug-Induced Rape Prevention and Punishment
H.R. 4137 prohibits distribution of a controlled substance
to a person, without that person's knowledge, with the intent
to commit a crime of violence. The bill also increases
penalties for possessing or distributing flunitrazepan, also
known as Rohypnol. On September 26, 1996, the bill passed the
House by a vote of 421 to 1. H.R. 4137 passed the Senate with
an amendment on October 3, 1996, was agreed to in the House on
October 4, 1996, and was signed into law on October 13, 1996
(P.L. 104-305).
SEX CRIMES AGAINST CHILDREN
Throughout the 104th Congress, the Subcommittee paid
particular attention to public safety issues involving
children. The Subcommittee held an oversight hearing looking at
the work of the Center for Missing and Exploited Children and
the FBI's Child Abduction Serial Killer Unit. In addition, the
Subcommittee conducted hearings on related child crimes
legislation, including H.R. 2974, the ``Crimes Against Children
and Elderly Persons Punishment and Prevention Act of 1996;''
H.R. 2137, ``Megan's Law;'' H.R. 3508, the ``Child Privacy
Protection and Parental Empowerment Act of 1996;'' and federal
record keeping of convicted sex offenders.
Sexual Crimes Against Children Prevention Act
On March 15, 1995, Subcommittee Chairman McCollum
introduced H.R. 1240, the ``Sexual Crimes Against Children
Prevention Act of 1996,'' which increases the penalties for
creating or trafficking in child pornography if a computer was
used to create or traffic in the material, or was used to lure
children into posing for such material. On March 16, 1995, the
Subcommittee held a mark-up of the bill and ordered it
favorably reported to the full Committee, amended. On March 22,
1995, the full Committee held a mark-up of H.R. 1240 and
ordered the bill reported to the House, as amended, with an
additional full Committee amendment. The report was filed on
March 28, 1995 (H. Rept. 104-90). On April 4, 1995, H.R. 1240
was considered by the House under suspension of the rules and
passed by a vote of 417 yeas to 0 nays. The bill passed the
Senate on April 6, 1996, and was approved by the President on
December 23, 1995 (P.L. 104-71).
Serial Killers and Child Abductions
On September 14, 1995, the Subcommittee held a hearing on
the problems of child abduction and serial killing and federal
efforts in response to these crimes. The Subcommittee heard
testimony from Ernie E. Allen, President of the National Center
for Missing and Exploited Children; William Hagmaier, III,
Supervisory Special Agent and Unit Chief with the Child
Abduction and Serial Killer Unit of the Federal Bureau of
Investigation; Kenneth V. Lanning, Supervisory Agent of the
Behavioral Science Unit of the Federal Bureau of Investigation;
Robin L. Montgomery, Special Agent in Charge of the Critical
Incident Response Group of the Federal Bureau of Investigation;
Captain Patrick Parks of the Petaluma, California Police
Department; John Walsh, host of ``America's Most Wanted;'' and
Patty Wetterling, co-founder of the Jacob Wetterling
Foundation.
Megan's Law
On March 7, 1996, the Subcommittee held a hearing on H.R.
2137, ``Megan's Law.'' H.R. 2137 requires that residents of
neighborhoods be notified when convicted sex offenders move
into their communities. The Subcommittee heard testimony from
Rep. Dick Zimmer of New Jersey. The Subcommittee also received
written testimony from Maureen Kanka, co-founder of the Megan
Nicole Kanka Foundation, and Ernest E. Allen, President and CEO
of the National Center for Missing & Exploited Children.
On March 21, 1996, the Subcommittee held a mark-up on H.R.
2137 and ordered the bill favorably reported to the full
Committee, amended. On April 24, 1996, the full Committee held
a mark-up of the bill and ordered it favorably reported to the
House, as amended. On May 6, 1996, the report on H.R. 2137 was
filed (H. Rept. 104-555). On May 7, H.R. 2137 passed the House,
as amended, under suspension of the rules, by a vote of 418
yeas to 0 nays. The bill passed the Senate on May 9, 1996, and
was signed into law by the President on May 17, 1996 (P.L. 104-
145).
The Crimes Against Children and Elderly Increased Punishment Act
On March 7, 1996, the Subcommittee held a hearing on minor
and miscellaneous bills, including H.R. 2974, the ``Crimes
Against Children and Elderly Increased Punishment Act.'' The
Subcommittee heard testimony in support of this legislation
from the sponsor of the bill, Rep. Dick Chrysler of Michigan.
On March 21, 1996, the Subcommittee held a mark-up of H.R.
2974, and ordered the bill favorably reported to the full
Committee, amended. On April 24, 1996, the full Committee held
a mark-up of the bill and ordered it favorably reported to the
House, as amended. On May 1, 1996, the report on H.R. 2974 was
filed (H. Rept. 104-548). On May 7, H.R. 2974 passed the House,
as amended, under suspension of the rules, by a vote of 414
yeas to 4 nays. No further action was taken on H.R. 2974 in the
104th Congress.
Federal Record Keeping and Sex Offenders
On June 19, 1996, the Subcommittee held a hearing on
federal record keeping and sex offenders. The Subcommittee
heard testimony from Richard Hagerman and Donna Whitsom,
parents of Amber Hagerman; Rep. Martin Frost of the 24th
District of Texas; the Rep. Gil Gutknecht of the 1st District
of Minnesota; the Rep. Dick Zimmer of the 12th District of New
Jersey; Harlin R. McEwen, Deputy Assistant Director of the
Criminal Justice Information Services of the Federal Bureau of
Investigation; and Ernie Allen, President of the National
Center for Missing & Exploited Children.
On May 14, 1996, H.R. 3456, the ``Sexual Offender Tracking
and Identification Act of 1996'' was introduced by Rep. Dick
Zimmer, and, on May 17, 1996, the bill was referred to the
Subcommittee on Crime. H.R. 3456 provides for the establishment
of a nationwide tracking system of convicted sexual predators.
On September 25, 1996, the bill was discharged from further
consideration by the Committee on the Judiciary. On September
25, 1996, the bill was considered by the House, under
suspension of the rules. On September 26, 1996, the bill passed
the House by a vote of 423 yeas to 1 nay. The House also passed
S. 1675, the identical Senate companion bill on September 26,
1996. On October 3, 1996, S. 1675 was signed into law by the
President (P.L. 104-236).
Children's Privacy Protection and Parental Empowerment Act
On September 12, 1996, the Subcommittee held a hearing on
H.R. 3508, the ``Children's Privacy and Parental Empowerment
Act.'' The Subcommittee heard testimony from Rep. Bob Franks of
New Jersey; Mariam Bell, Executive Vice President of Enough is
Enough; Marc Klaas of the Klaas Foundation for Children and
Kids Off Lists; Marc Rotenberg, Director of the Electronic
Privacy Information Center; Sergeant R.P. ``Toby'' Tyler,
Supervisor of the Crimes Against Children Detail with the San
Bernardino Sheriff's Department; Fred Seigel, Executive
Director of Enrollment Services at the George Washington
University; Richard Barton, Senior Vice President of
Congressional Affairs for Direct Marketing Association, Inc.;
Martin Lerner, President of American Student Lists Company,
Inc.; and Dante Cirilli, President of Grolier Enterprises, Inc.
No further action was taken on H.R. 3508 in the 104th Congress.
Child Abuse Prevention and Treatment Act Amendments of 1995
S. 919, the ``Child Abuse Prevention and Treatment Act
Amendments of 1995,'' is intended to modify and reauthorize the
Child Abuse Prevention and Treatment Act, and for other
purposes. The legislation passed the Senate, as amended, with
an additional floor amendment on July 18, 1996. It was held at
the desk in the House. On September 25, 1996, S. 919 passed the
House, amended, under suspension of the rules, two-thirds
affirmative vote required. On September 27, 1996, the Senate
agreed to the House amendment and the bill was signed into law
by the President on October 3, 1996 (P.L. 104-235).
VIOLENT YOUTH CRIME
Regional Crime Forums
During the 104th Congress, the Subcommittee held a series
of regional forums across the country to examine the current
and future magnitude of violent youth crime, and much needed
juvenile justice reforms. In particular, the forums were
designed to determine how Congress might help states and
localities as they respond to the crisis of youth crime. Law
Enforcement leaders from all fifty states were invited to
participate in the regional crime forum in their area. The
forums were held in six cities: Philadelphia, Pennsylvania;
Atlanta, Georgia; Chicago, Illinois; Boston, Massachusetts;
Dallas, Texas; and San Francisco, California.
Participants in the Mid-Atlantic Regional forum in
Philadelphia, Pennsylvania, on March 26, 1996, included: Tom
Corbett, Attorney General, Pennsylvania; Mary Woolley,
Director, Criminal Justice Policy, Pennsylvania; Lynne Abraham,
District Attorney, Philadelphia, Pennsylvania; Joseph Curran,
Jr., Attorney General, Maryland; Stuart Simms, Secretary,
Department of Juvenile Justice, Maryland; Terrence Farley,
Director of the Division of Criminal Justice, New Jersey; Paul
Donnely, Executive Director of Juvenile Justice Commission, New
Jersey; Jane Brady, Attorney General, Delaware; Paul Shechtman,
Director of Criminal Justice, New York; Richard Costello,
President, Philadelphia Fraternal Order of Police; Kenneth
Rocks, Vice President, Philadelphia Fraternal Order of Police;
John DiIulio, Professor, Princeton University; Adam Walinsky,
President, Center for Research on Institutions and Social
Policy.
Participants in the Southern Regional Forum in Atlanta,
Georgia, on April 10, 1996, included: Michael Bowers, Attorney
General, Georgia; Jeff Sessions, Attorney General, Alabama;
Charles Condon, Attorney General, South Carolina; Flora Boyd,
Director of Juvenile Justice, South Carolina; Jerry Kilgore,
Secretary of Public Safety, Virginia; Patricia West, Director
of Juvenile Justice, Virginia; Tim Moore, Commissioner,
Department of Law Enforcement, Florida; Calvin Ross, Secretary,
Department of Juvenile Justice, Florida; Bill Berger, Chief of
Police, North Miami Beach, Florida, and Vice-President,
International Association of Chiefs of Police; Albert Murray,
Deputy Commissioner, Department of Youth Development,
Tennessee; Pat Flynn, Assistant Attorney General, Mississippi.
Participants in the South Western Regional Forum in Dallas,
Texas on May 28, 1996, included: Dan Morales, Attorney General,
Texas; Drew Durham, Deputy Attorney General for Criminal
Justice, Texas; Tony Fabelo, Executive Director, Criminal
Justice Policy Council, Texas; Ben Click, Chief, Dallas Police
Department, Texas; Jim Farris, District Court Judge, and Former
President, National Juvenile Judges Committee, Texas; Eric
Andell, First Court of Appeals Judge, and Commissioner, Texas
Juvenile Probation Commission, Texas; Jimmy Dotson, Assistant
Chief, Houston Police Department, Texas; Drew Edmondson,
Attorney General, Oklahoma; Ken Lackey, Secretary, Department
of Health and Human Services, and Executive Director, Office of
Juvenile Affairs, Oklahoma; Carla Stoval, Attorney General,
Kansas; Charles Simmons, Secretary, Department of Corrections,
Kansas; Richard Stalder, Secretary, Department of Public Safety
and Corrections, Louisiana; John Bailey, Director, Arkansas
State Police, Arkansas; Darren White, Secretary, Department of
Public Safety, New Mexico; Jerry Adamek, Director, Office of
Youth Services, Colorado.
Participants in the New England Forum in Boston,
Massachusetts on June 7, 1996, included: Norah Wylie, Deputy
Chief Attorney General, Family and Community Crimes Bureau,
Massachusetts; William O'Leary, Commissioner, Department of
Youth Services, Massachusetts; Ralph Martin, District Attorney,
Suffolk County, Massachusetts; John Corbett, Judge, Plymouth
Juvenile Court, former Assistant District Attorney, Norfolk
County, Massachusetts; Julian Houston, Judge, Superior Court,
Massachusetts; Jonathan Petuchowski, Director, Committee on
Criminal Justice, Department of Public Safety, Massachusetts;
Jay Blitzman, Director, Roxbury Defenders Unit, Massachusetts;
James Fox, Dean, Northeastern College of Criminal Justice,
Massachusetts; Andrew Ketterer, Attorney General, Maine;
William Young, Commissioner, Department of Social and
Rehabilitative Services, Vermont; Angela Bucci, Assistant
Attorney General, Juvenile Prosecution Unit Chief, Rhode
Island; Joseph Mastrangelo, Assistant Director, Child
Protective Services, Rhode Island; Richard Covello, Commander,
State Bureau of Criminal Investigations, Connecticut; Linda
D'Amario Rossi, Commissioner, Department Children and Families,
Connecticut; John Kissinger, Assistant Attorney General,
Criminal Justice Bureau, New Hampshire.
Participants in the Mid-Western Regional Forum in Chicago,
Illinois, on June 24, 1996 included: Jim Ryan, Attorney
General, Illinois; Andrea Zopp, First Assistant States
Attorney, Illinois; Patrick Murphy, Cook County Public
Guardian, Illinois; John Platt, Administrator, Juvenile
Division, Department of Corrections, Illinois; James Knecht,
Judge, Illinois Appellate Court, Illinois; William Hibbler,
Presiding Judge, Juvenile Justice Division, Illinois; Heidi
Heitkamp, Attorney General, North Dakota; Traci Sanders,
Assistant Attorney General, Missouri; Lisa Smith, Director,
Office of Juvenile Justice, Department of Public Safety,
Missouri; Don Davis, Commissioner, Department of Public Safety,
Minnesota; Mike Sullivan, Secretary, Department of Corrections,
Wisconsin; Catherine O'Connor, Executive Director, Criminal
Justice Institute, Indiana; Richard Moore, Director, Criminal &
Juvenile Justice Planning Agency, Iowa; Carol Rapp Zimmermann,
Assistant Director, Department of Youth Services, Ohio; Tom
Ginster, Family Independence Agency, Michigan; Jon Hill,
Director, Office of Juvenile Services, Nebraska.
Participants in the Western Regional Forum in San
Francisco, California, on July 1, 1996, included: Daniel
Lungren, Attorney General, California; Frankie Sue Del Papa,
Attorney General, Nevada; Joe Albo, Director of Public Safety,
Arizona; Joe Sandoval, Secretary of the California Youth and
Adult Corrections Agency; Frank Alarcon, Director, California
Youth Authority; Greg Peden, Director, Criminal Justice
Services, Oregon Department of Law Enforcement; Rick Hill,
Director, Oregon Youth Authority; Gerard Sidorowicz, Assistant
Secretary, Juvenile Rehabilitation Administration, Department
of Social and Health Services, Washington; John Mac Donald,
Office of Attorney General Grant Woods, Arizona; and Steve
Shaw, Department of Human Resources, Office of Governor Miller,
Nevada.
Juvenile Crime Reform Bill
In response to the testimony presented at the
Subcommittee's six violent youth crime meetings, Subcommittee
Chairman McCollum introduced H.R. 3565, the ``Violent Youth
Predator Act,'' on June 4, 1996. H.R. 3565 reforms juvenile
justice in four significant ways: (1) It greatly strengthens
the federal juvenile justice system by giving federal
prosecutors the discretion to prosecute as adults those
juveniles who commit federal violent crimes and major federal
drug crimes; (2) It establishes enhanced mandatory minimum
prison sentences for juveniles who use firearms in the course
of a federal violent crime or major federal drug crime; (3) It
directs the Attorney General to target enforcement resources at
armed violent youth predators; and (4) It repeals the Office of
Juvenile Justice and Delinquency Prevention which for more than
twenty years has required states to implement soft-on-crime
``juvenile justice'' policies and replaces it with the Office
of Juvenile Crime Control, which would provide to the States
$500 million for juvenile crime reduction and prevention block
grants and incentive grants for holding violent juveniles
accountable and adopting other accountability-based reforms.
On June 27, 1996, the Subcommittee on Crime held a hearing
on H.R. 3565 and H.R. 3445, the ``Balanced Juvenile Justice and
Crime Prevention Act of 1996,'' which was introduced by Mr.
Schumer. The Subcommittee heard testimony from four witnesses,
all of whom were victimized by repeat, violent juvenile
offenders. They included: Patricia Thomas, Fairfax, Virginia;
Kathy Trammel, Manassas, Virginia; Thomas Wallace, Hampton,
Virginia; and Linda Clark from Flint, Michigan. Other witnesses
for the hearing included: Karen Schrier, U.S. Attorney,
District of South Dakota, and Chair of the Juvenile Justice
Subcommittee of the Attorney General's Advisory Committee;
Charles Wilson, U.S. Attorney with the Middle District of
Florida; Jeff Sessions, Attorney General for the State of
Alabama; Justice Elizabeth Weaver, Michigan Supreme Court,
Richard Cullen, former U.S. Attorney, Eastern District of
Virginia; Kevin Beary, Sheriff, Orange County, Florida; Jim
Wootton, President, Safe Streets Alliance; Scott Newman,
Prosecuting Attorney, Marion County, Indiana; Judge Sandra
Strom, Family Court, Birmingham, Alabama; Peter Greenwood,
Director, Criminal Justice Analysis, RAND Corporation, Santa
Monica, California; Jo Ann Wallace, Director, Public Defender
Service, District of Columbia, and Ellen Halbert, Vice Chair,
Texas Board of Criminal Justice, Austin, Texas.
On July 16, 1996, H.R. 3565 was discharged from further
consideration by the Subcommittee. On July 16 and 17, 1996, and
on August 1 and 2, 1996, the full Committee held a mark-up of
H.R. 3565. No further action was taken on H.R. 3565 or any
juvenile justice reform bill in the 104th Congress.
FEDERAL LAW ENFORCEMENT OVERSIGHT
In the 104th Congress, the Subcommittee on Crime initiated
a long term project relating to the organization and activities
of federal law enforcement. The goals of the project include
the identification of overlapping areas of responsibility and
the reduction of redundant or inefficient practices.
Nature, Extent, and Proliferation of Federal Law Enforcement--Part 1:
An Introduction and Overview
On November 15, 1995, the Subcommittee held a hearing on
the organization and authority of federal law enforcement. The
Subcommittee heard testimony from Griffin B. Bell, former
Attorney General of the United States; Salvatore R. Martoche,
former Assistant Secretary of the Treasury for Law Enforcement;
Norman J. Rabin, Director of Administration of Justice Issues
in the General Government Division of the General Accounting
Office; and Dick Thornburgh, former Attorney General of the
United States.
Nature, Extent, and Proliferation of Federal Law Enforcement--Part 2:
State and Local Law Enforcement Perspectives
On May 23, 1996, the Subcommittee held a second hearing on
the organization and authority of federal law enforcement,
focusing on the views of state and local law enforcement
officials. The Subcommittee heard testimony from M. Jane Brady,
Attorney General of Delaware; John R. Justice, Vice President
of the National District Attorneys' Association; Jack O'Malley,
State's Attorney in Cook County, Illinois; Terrance W. Gainer,
Director of the Illinois State Police; Johnny L. Hughes,
Congressional Affairs Chairman for the National Troopers
Coalition; Gilbert G. Gallegos, National President of the
Fraternal Order of Police; and Charles B. Meeks, Executive
Director of the National Sheriffs' Association.
Federal Law Enforcement Actions in Relation to the Branch Davidian
Compound in Waco, Texas
From July 19, 1995 to August 1, 1995, the Subcommittee on
Crime held a joint oversight hearing with the Government Reform
and Oversight Committee's Subcommittee on National Security,
International Affairs, and Criminal Justice on the federal
actions in relation to the Branch Davidian Compound in Waco,
Texas.
On July 19, 1995, the Subcommittees heard testimony from
Dick Reavis, author of Ashes of Waco, published by Simon and
Schuster; Stuart Wright, editor and contributor to Armageddon
in Waco, published by University of Chicago Press; Ray Jahn,
Assistant U.S. Attorney who prosecuted Branch Davidians; Gerald
Goldstein, President of National Association of Criminal
Defense Lawyers; Robert L. Descamps, President of National
District Attorneys Association; Henry McMahon, firearms dealer;
David Tibodeau, resident of Mt. Carmel; Kiri Jewell, resident
of Mt. Carmel; David Jewell, father of Kiri Jewell; Louis Gene
Barber, former Lieutenant, McLennan County Sheriff's Office;
Davy Aguilera, ATF Special Agent; Chuck Sarabyn, former ATF
ASAC, Houston, Texas; Earl Dunagan, former ATF Acting SAC,
Austin, Texas; Bill Johnston, Assistant United States Attorney;
Dan Hartnett, former ATF Deputy Director for Enforcement; Ed
Owens, ATF firearms expert; H. Geoffrey Moulton, Jr., Project
Director of Treasury Department Review Team; Dr. Bruce Perry,
Associate Professor of Psychiatry and Behavioral Sciences,
Baylor Medical College.
On July 20, 1995, the Subcommittees heard testimony from
Robert Sanders, former ATF Deputy Director of Enforcement; Wade
Ishimoto, Sandia National Laboratories; George Morrision, Los
Angeles Police Department; John Coonce, Drug Enforcement
Administration; Donald A. Bassett, former FBI Crisis Management
Specialist; Ambassador H. Allen Holmes, Assistant Secretary of
Defense for Special Operations Law Intensity Conflict (SOLIC);
MG John M. Pickler, USA, Commander, Joint Task Force-6; BG
Walter Huffman, USA, Assistant Judge Advocate General for Civil
Law; Chris Crain, Special Forces Group; LTC Philip Lindley,
USA, former Deputy Staff Judge Advocate for U.S. Army Special
Forces Command; MAJ. Mark Petree, USA, formerly of 3/3d Special
Forces Group; SSG Steve Fitts, USA, formerly of 3/3d Special
Forces Group; SSG Robert W. Moreland, USA, formerly of 3/3d
Special Forces Group; SFC Chris Dunn, USA, formerly of 3/3d
Special Forces Group; Philip Chojnacki, former ATF SAC,
Houston, Texas; Chuck Sarabyn, former ATF ASAC, Houston, Texas;
William Buford, ATF RAC, Little Rock, Arkansas; Lewis C.
Merletti, Deputy Director of Treasury Department Review Team.
On July 21, 1995, the Subcommittees heard testimony from
Steve Higgins, former Director of the ATF; John Simpson, former
Acting Assistant Secretary of the Treasury; Christopher Cuyer,
ATF Liaison for Assistant Secretary; Roger Altman, former
Deputy Secretary of the Treasury; Michael Langan, former Acting
Deputy Assistant Secretary of the Treasury; Lloyd M. Bentsen,
former Secretary of the Treasury; Joyce Sparks, Texas
Department of Child Protective Services; George Morrision, Los
Angeles Police Department; Tim Evans, Attorney; John Kolman,
formerly with Los Angeles County Sheriff's Department; Victor
Oboyski, Law Enforcement Officers Association.
On July 24, 1995, the Subcommittees heard testimony from
Robert Rodriguez, ATF Special Agent; Chuck Sarabyn, former ATF
SAC, Houston, Texas; Phillip Chojnacki, former ATF SAC,
Houston, Texas; Sharon Wheeler, ATF Special Agent; Dan
Hartnett, former ATF Deputy Director for Enforcement; Daniel
Black, ATF Personnel Office; Lewis C. Merletti, Deputy Director
of Treasury Department Review Team; James Cadigan, FBI firearms
expert; William Buford, ATF RAC, Little Rock, Arkansas; Roger
Altman, former Deputy Secretary of the Treasury; Roger
Ballesteros, ATF Agent; John Williams, ATF Special Agent;
Ronald K. Noble, Undersecretary for Law Enforcement; John
Magaw, Director of ATF.
On July 25, 1995, the Subcommittees heard testimony from
Dick DeGuerin, Attorney; Jack Zimmermann, Attorney; Dr. Philip
Arnold, Reunion Institute, Houston, Texas; Dr. James Tabor,
Associate Professor of Religious Studies, University of North
Carolina at Charlotte, and author of Why Waco, published by the
University of California Press; Captain Maurice Cook, Senior
Texas Ranger; Captain David Burns, Texas Ranger; Captain Frank
McClure, Douglas County Sheriff's Office, Georgia.
On July 26, 1995, the Subcommittees heard testimony from
Pete Smerick, former Criminal Investigative Analyst with the
Investigative Support Unit of the National Center for the
Analysis of Violent Crime at the FBI Academy, Quantico,
Virginia; Jim Cavanaugh, ATF Special Agent; Byron Sage, FBI
SSRA, Austin, Texas; Gary Noesner, FBI SSA, Quantico, Virginia;
Jeffrey Jamar, former FBI SAC, San Antonio, Texas; Ronald
McCarthy, former Officer, Los Angeles Police Department; Dr.
Alan Stone, Professor of Psychiatry and Law, Harvard
University; William Marcus, Environmental Protection Agency
toxicologist; Dr. Paul Rice, British CS Gas Expert; Dr. David
Upshall, British CS Gas expert; Dr. George Uhlig, Professor of
Chemistry, College of Eastern Utah; Hays Parks, Department of
Defense treaty expert.
On July 27, 1995, the Subcommittees heard testimony from
Larry Potts, former FBI Assistant Director, Criminal
Investigations Division; Anthony Betz, FBI CS Gas expert; Dick
Rogers, former head of Hostage Rescue Team; Jeffrey Jamar;
former FBI SAC, San Antonio, Texas; Byron Sage, FBI SSRA,
Austin, Texas; Dr. Harry Salem, Defense Department
toxicologist.
On July 28, 1995, the Subcommittees heard testimony from
Webster Hubbell, former Associate Attorney General; Mark
Richard, Deputy Assistant Attorney General; William Sessions,
former Director of the FBI; Floyd Clarke, former Deputy
Director of the FBI; Larry Potts, former FBI Assistant
Director, Criminal Investigations Division; Dr. Harry Salem,
Defense Department toxicologist; Rick Sherrow, fire expert;
Paul Gray, Houston Fire Department, leader of Fire Review Team;
James Quintere, arson expert, University of Maryland; Clive
Doyle, Branch Davidian, resident at Mt. Carmel.
On July 31, 1995, the Subcommittees heard testimony from
Jeffery Jamar, former FBI SAC, San Antonio, Texas; Dick Rogers,
former head of Hostage Rescue Team; Edward S.G. Dennis, Jr.,
former Assistant Attorney General, Criminal Division; R.J.
Craig, FBI Special Agent; James McGee, FBI Special Agent; John
Morrision, FBI Special Agent; Byron Sage, FBI SSRA, Austin,
Texas; Ambassador H. Allen Holmes, Assistant Secretary of
Defense for SOLIC.
On August 1, 1995, the Subcommittees heard testimony from
Janet Reno, Attorney General of the Unites States.
On August 2, 1996, the Committee on Government Reform and
Oversight released a report prepared in conjunction with the
Committee on the Judiciary on the Investigation into the
Activities of Federal Law Enforcement Agencies toward the
Branch Davidians (H. Rept. 104-749).
FBI Murder Investigation in Haiti
On January 31, 1996, the Subcommittee held an oversight
hearing on the FBI investigation into the murders of Mireille
Durocher Bertin and Eugene Baillergeau, Jr. in Haiti. The
Subcommittee heard testimony from Seth Waxman, Associate Deputy
Attorney General of the Department of Justice; Ambassador
Robert Gelbard, Assistant Secretary of State for International
Narcotics and Law Enforcement Affairs at the Department of
State; William Perry, Deputy Assistant Director of the FBI;
Ambassador James Dobbins, Special Coordinator for Haiti at the
Department of State; Paul Mallet, Jr., Associate Special Agent
in Charge at the Miami Division of the FBI; and Burton V.
Wides, Counsel to the Government of Haiti.
GENERAL DOJ OVERSIGHT AND LEGISLATION
Criminal Division Reorganization
On March 23, 1995, the Subcommittee held an oversight
hearing on the proposed reorganization of the Criminal Division
of the Department of Justice. The Subcommittee heard testimony
in support of such reorganization from Jo Ann Harris, Assistant
Attorney General for the Department of Justice.
Law Enforcement Technology
On May 17, 1995, the Subcommittee held an oversight hearing
concerning law enforcement technologies. The Subcommittee heard
testimony from Col. Carl R. Baker, Deputy Secretary of Public
Safety, Commonwealth of Virginia; David G. Boyd, Director of
the Science and Technology Division of the National Institute
of Justice of the U.S. Department of Justice; Robert E.
Cansler, Chief of Police in Concord, North Carolina; Harlan R.
McEwen, Chief of the Ithaca Police Department in New York;
Dennis Miyoshi, Director of the Nuclear Security Systems Center
at the Sandia National Laboratory; Eric P. Wenaas, President
and CEO of JAYCOR; and Grady C. Wright, Vice President and
General Manager of TRW.
Matters Relating to the Federal Bureau of Prisons
On June 8, 1995, the Subcommittee held an oversight hearing
of matters related to the Federal Bureau of Prisons. The
Subcommittee heard testimony from Walter A. Brys, Principal of
North Village Corporation; Kathleen M. Hawk, Director of the
Bureau of Prisons; Douglas S. Lipton, Ph.D., Senior Research
Fellow at the National Development and Research Institutes,
Inc.; Norman J. Rabkin, Director of Administration of Justice
Issues in the General Government Division of the General
Accounting Office; Stuart H. Shapiro, Ph.D., President and CEO
of Prison Health Service, Inc.; and Charles W. Thomas, Director
of the Private Corrections Project of the Center for
Criminology and Law at the University of Florida.
COPS Program
On December 7, 1995, the Subcommittee held a hearing
examining the community policing initiative, better known as
the COPS (Community Oriented Policing Services) program. The
Subcommittee heard testimony in support of the COPS program
from Joseph E. Brann, Director of the Office of Community
Oriented Policing Services of the U.S. Department of Justice.
Administration's Efforts Against the Influence of Organized Crime in
the Laborers' International Union of North America
On July 24 and 25, 1996, the Subcommittee on Crime held an
oversight hearing on the Administration's efforts against the
influence of organized crime in the Laborers' International
Union of North America (LIUNA). On July 24, 1996, the
Subcommittee heard testimony from Jim Moody, former Deputy
Assistant Director, Criminal Investigations Division, FBI;
Clark B. Hall, former Acting Unit Chief and Supervisory Special
Agent, FBI; Ronald M. Fino, former FBI informant and Business
Manager, Local 210, LIUNA.
On July 25, 1996, the Subcommittee heard testimony from Jo
Ann Harris, former Assistant Attorney General of the Criminal
Division, Department of Justice; James Burns, United States
Attorney, Northern District of Illinois; John C. Keeney, Deputy
Assistant Attorney General of the Criminal Division, Department
of Justice; Paul E. Coffey, Chief of the Organized Crime and
Racketeering Section, Department of Justice; Michael Ross,
Supervisory Special Agent, FBI; Judge Abner Joseph Mikva,
former White House Counsel; W. Douglas Gow, Inspector General,
LIUNA; Robert D. Luskin, General Executive Board Attorney,
LIUNA.
The Parole Commission Phaseout Act of 1995
On June 6, 1996, the Subcommittee held a hearing on S.1507,
the ``Parole Commission Phaseout Act of 1995.'' The
Subcommittee heard testimony in support of a five-year
extension of the life of the United States Parole Commission
from the Honorable Richard J. Arcara, Judge of the U.S.
District Court of the Western District of New York; Edward F.
Reilly, Jr., Chairman of the United States Parole Commission;
and Deputy Assistant Attorney General Robert S. Litt of the
Criminal Division of the Department of Justice.
On July 10, 1996, the Subcommittee held a mark-up of S.1507
and ordered the bill favorably reported to the full Committee,
amended. On September 11, 1996, the full Committee held a mark-
up of the bill and ordered it favorably reported, as amended,
to the House. The report was filed on September 16, 1996 (H.
Rept. 104-789). S.1507 passed the House, as amended, under
suspension of the rules. On September 20, 1996, the Senate
agreed to the House amendment and the bill was signed into law
by the President on October 2, 1996 (P.L. 104-232).
OTHER SUBCOMMITTEE HEARINGS
Combating Domestic Terrorism
On May 3, 1995, the Subcommittee held a hearing on
combating domestic terrorism in the United States. The
Subcommittee heard testimony from William M. Baker, former
Assistant Director of the Criminal Investigation Division of
the FBI; William P. Barr, former Attorney General of the United
States; Louis J. Freeh, Director of the FBI; Ira Glasser,
Executive Director of the American Civil Liberties Union; Jamie
S. Gorelick, Deputy Attorney General of the United States;
Thomas Halpern, Associate Director of the Fact Finding
Department of the Anti-Defamation League; Brent L. Smith,
Professor and Chairman of the Department of Criminal Justice at
the University of Alabama; George J. Terwilliger, III, former
Deputy Attorney General of the United States; and William H.
Webster, former Director of the FBI and former Director of the
Central Intelligence Agency.
Combating Crime in the District of Columbia
On June 22, 1995, the Subcommittee held a hearing focusing
on ways of combating crime in the District of Columbia through
a joint effort by Congress and the District. The Subcommittee
heard testimony from Harold Brazil, Member of the District
Council; Sally Byington, Coordinator of the Community Policing
Council; Kevin P. Chavous, Member of the District Council;
James F. Foreman, Coordinator of the Metro Orange Coalition;
Isaac Fulwood, Jr., former Chief of Police for the Metropolitan
Police Department; the Honorable Eugene N. Hamilton, Chief
Judge of the Superior Court of the District of Columbia; Eric
Holder, U.S. Attorney for the District of Columbia; Robert E.
Langston, Chief of the U.S. Park Police; Catherine Nero, former
President of Survivors of Homicide, Inc.; Fred Thomas, Chief of
Police for the Metropolitan Police Department; and the
Honorable Reggie B. Walton, Associate Judge of the Superior
Court of the District of Columbia.
Nature and Threat of Violent Anti-Government Groups in America
On November 2, 1995, the Subcommittee held a hearing on the
nature and threat of violent anti-government groups in America.
The Subcommittee heard testimony regarding the threat of such
anti-government groups from Ted Almay, Superintendent of the
Ohio Bureau of Criminal Identification and Investigation; Rick
Eaton, Senior Researcher at the Simon Wiesenthal Center; John
George, Professor of Political Science and Sociology at the
University of Central Oklahoma; David B. Kopel, Associate
Policy Analyst for the Cato Institute; Brian Levin, Associate
Director of the Klanwatch Project at the Southern Poverty Law
Center; Michael Lieberman, Washington Counsel for the Anti-
Defamation League; Karen Mathews, Clerk-recorder for Stanislaus
County, California; Nickolas C. Murnion, an attorney from
Garfield County, Montana; Gregory T. Nojeim, Legislative
Counsel for the American Civil Liberties Union; Brent L. Smith,
Professor and Chair of the Department of Criminal Justice at
the University of Alabama at Birmingham; Kenneth S. Stern, a
program specialist on anti-Semitism and extremism for the
American Jewish Community; and Sheriff Patrick J. Sullivan of
the Arapahoe County Sheriff's Department in Littleton,
Colorado.
United States Sentencing Commission
On December 14, 1995, the Subcommittee held an oversight
hearing on the United States Sentencing Commission. The
Subcommittee heard testimony from the Honorable Richard P.
Conaboy, Chairman of the United States Sentencing Commission;
John Steer, General Counsel of the United States Sentencing
Commission; Phyllis Newton, Staff Director of the United States
Sentencing Commission; the Honorable Jon O. Newman, Chief Judge
of the United States Court of Appeals for the Second Circuit in
Hartford, Connecticut; the Honorable Emilio M. Garza, Judge of
the United States Court of Appeals for the Fifth Circuit in San
Antonio, Texas; the Honorable Jay Harvey Wilkinson, III, Judge
of the United States Court of Appeals for the Fourth Circuit in
Charlottesville, Virginia; Robert Edmunds, an attorney with the
firm of Stern, Graham, and Klepfer in Greensborough, North
Carolina; and Tommy Whiteside, United States Probation Officer
for the Southern District of South Carolina.
The Growing Threat of International Organized Crime
On January 25, 1996, the Subcommittee held a hearing on the
growing threat of international organized crime. The
Subcommittee heard testimony regarding the nature and
geographic extent of this threat from Jim E. Moody, Deputy
Assistant Director of the Criminal Investigative Division of
the FBI; Dr. Roy Godson, President of the National Strategy
Information Center; John Sweeney, Policy Analyst at the
Heritage Foundation; Dr. Bill Myers, Director of the Center for
the Study of Asian Enterprise Crime; Dr. Ariel Cohen, Senior
Analyst at the Heritage Foundation; Peter Andreas, Research
Fellow with The Brookings Institute; and Dr. Rensselaer Lee,
President of Global Advisory Services.
Economic Espionage
On May 9, 1996, the Subcommittee held a hearing on the
threat of economic espionage to the economic security of the
United States. The Subcommittee heard testimony from Director
Louis Freeh of the FBI; Dr. Raymond Damadian, President of
Fonar Corporation; John Melton, Vice President of SDL, Inc.;
David Shannon, Senior Counsel for Intel Corporation; Dan
Whiteman, Corporate Information Security Officer at General
Motors Corporation; Tom Brunner from the U.S. Chamber of
Commerce; Dr. James P. Chandler from George Washington
University; Richard J. Heffernan from the American Society for
Industrial Security; and Pete McCloskey, President of the
Electronic Industries Association.
Following the testimony presented at this hearing,
Subcommittee Chairman McCollum introduced H.R. 3723 on June 26,
1996. This bill protects proprietary economic information by
creating two new federal crimes. These crimes prohibit the
theft or misappropriation of ``trade secrets'' for the benefit
of a foreign government or company or for the benefit of a
domestic person or entity, respectively. Trade secret is
defined in the act to include most forms of business,
scientific, technical, or economic information if the owner of
the information has taken reasonable measure to keep the
information secret and if the information derives economic
value from not being generally known or available to the
public. The bill requires courts to enter appropriate orders to
protect the confidentiality of trade secrets during any trial
involving these crimes. It also requires persons convicted of
these crimes to forfeit the gains made through their illegal
activity and, in some cases, the property they used to commit
the crime.
On July 10, 1996, the Subcommittee held a mark-up of H.R.
3723 and ordered the bill favorably reported to the full
Committee by voice vote. On September 11, 1996, the full
Committee held a mark-up of H.R. 3723 and ordered the bill
favorably reported to the House, as amended, by voice vote. On
September 16, 1996, the report was filed (H. Rept. 104-788),
and on September 17, 1996, H.R. 3723 passed the House, as
amended, under suspension of the rules by a vote of 399 yeas to
3 nays. The bill passed the Senate on October 2, 1996, and was
signed into law on October 11, 1996 (P.L. 104-294).
Police Officers' Rights and Benefits
On July 18, 1996, the Subcommittee held a hearing on the
rights and benefits of police officers. Specifically, the
Subcommittee examined several bills relating to these issues:
H.R. 878, the Law Enforcement Officers Bill of Rights; H.R.
218, the ``1995 Community Protection Initiative''; H.R. 1805,
to exempt qualified law enforcement officers from State laws
prohibiting the carrying of concealed weapons; H.R. 2912,
``Alu-O'Hara Public Safety Officers Health Benefits Act''; and
H.R. 3263, ``Law Enforcement and Correctional Officers
Employment Registration Act of 1996.'' The Subcommittee heard
testimony from Officer Joseph Alu and Detective James O'Hara of
the Plantation Police Department in Florida; Terrance K.
Morrison, President of the Disabled Police Officers Counseling
Center, Inc.; Gilbert Gallegos, President of the National
Fraternal Order of Police; James A. Rhinebarger, Chairman of
the National Troopers Coalition; Richard Gallo, National Vice
President of the International Brotherhood of Police Officers;
Ed Nowicki, a member and representative of the Law Enforcement
Alliance of America; William J. Johnson, General Counsel for
the National Association of Police Organizations, Inc.; the
Honorable George Miller, Mayor of Tucson, Arizona; Sheriff
Patrick Sullivan from the National Sheriffs' Association; and
Darrell L. Sanders, Chief of Police for the Frankfurt Police
Department in Illinois and First Vice President of the
International Association of Chiefs of Police.
MISCELLANEOUS BILLS
Gun Ban Repeal Act of 1995
On April 24, 1995, H.R. 125, the ``Gun Ban Repeal Act of
1995,'' was referred to the Subcommittee on Crime. H.R. 125
provides for the repeal of the ban on semiautomatic assault
weapons and the ban on large capacity ammunition feeding
devices. On March 22, 1996, the Committee on the Judiciary was
discharged from further consideration of the bill. Also, on
March 22, 1996, the House rejected a motion to recommit H.R.
125 to the Committee on the Judiciary and the bill passed the
House, amended, by a vote of 239 ayes to 173 nays. On March 25,
1996, H.R. 125 was referred to the Senate Committee on the
Judiciary. No further action was taken on H.R. 125 in the 104th
Congress.
Consumer Fraud Prevention Act of 1995
On April 24, 1995, H.R. 1499, the ``Consumer Fraud
Prevention Act of 1995,'' was referred to the Subcommittee on
Crime. This bill provides for the improvement of criminal law
relating to fraud against consumers. On April 18, 1996, the
Subcommittee held a hearing on H.R. 1499. The Subcommittee
heard testimony from Mary Ann Downs, a telemarketing victim;
Ann Marie Ritchey, the mother of a telemarketing victim;
Mitchell D. Dembin, Assistant United States Attorney for the
Southern District of California; Chuck Owens, Chief of the
Financial Crimes Section of the Federal Bureau of
Investigation; John Barker, Director of the National Fraud
Information Center; Evalyn Brendel, a representative of AARP;
Jim Martin, President of 60 Plus; Bruce Thompson, Special
Assistant to the Attorney General of North Carolina; and
Officer Tony Cincotta of the Montgomery County Police Training
Academy.
On July 10, 1996, the Subcommittee held a mark-up of H.R.
1499. The bill was ordered favorably reported to the full
Committee, amended. On September 25, 1996, the Committee on the
Judiciary was discharged from further consideration of the
bill. Also, on September 25, 1996, H.R. 1499 passed the House,
amended, under suspension of the rules. On September 26, 1996,
the bill was received in the Senate. No further action was
taken on H.R. 1499 in the 104th Congress.
Increasing Penalties for Escaping from a Federal Prison
On July 18, 1995, H.R. 1533 was referred to the
Subcommittee on Crime. This bill would amend title 18, United
States Code, to increase the penalty for escaping from a
Federal prison. On September 28, 1995, the Subcommittee held a
hearing on H.R. 1533. The Subcommittee heard testimony in favor
of this bill from the Honorable Ed Bryant of Tennessee. The
Subcommittee also received written testimony in support of H.R.
1533 from Andrew Fois, Assistant Attorney General of the U.S.
Department of Justice.
On October 19, 1995, the Subcommittee held a mark-up of
H.R. 1533. The bill was ordered favorably reported to the full
Committee. On October 31, 1995, the full Committee held a mark-
up of the bill and ordered it favorably reported to the House.
On December 11, 1995, the report on H.R. 1533 was filed (H.
Rept. 104-392). On December 12, 1995, H.R. 1355 passed the
House under suspension of the rules. On December 13, 1995, the
bill was referred to the Senate Committee on the Judiciary. Mr.
Hatch then reported it favorably to the Senate, amended, on
June 13, 1996. No further action was taken on H.R. 1533 in the
104th Congress.
Private Security Officer Quality Assurance Act of 1995
On July 28, 1995, H.R. 2092, the ``Private Security
Officer Quality Assurance Act of 1995,'' was referred to the
Subcommittee on Crime. The bill would expedite State reviews of
criminal records of applicants for private security officer
employment, and for other purposes. On March 7, 1996, the
Subcommittee held a hearing on H.R. 2092. The Subcommittee
heard testimony in support of the legislation from the
Honorable Bob Barr of Georgia and the Honorable Matthew G.
Martinez of California. The Subcommittee also received written
testimony in favor of H.R. 2092 from Andrew Fois, Assistant
Attorney General of the U.S. Department of Justice.
On March 21, 1996, the Subcommittee held a mark-up of H.R.
2092 and ordered it favorably reported to the full Committee.
On September 11 and September 18, 1996, the full Committee held
mark-ups of the bill. H.R. 2092 was reported favorably to the
House, amended, by Mr. Hyde on September 24, 1996 (H. Rept.
104-827, part I). The bill was then considered by the House on
September 25, 1996; it passed the House on September 26, as
amended and under suspension of the rules, by a vote of 415
yeas to 6 nays. On September 26, 1996, H.R. 2092 was received
in the Senate. No further action was taken on H.R. 2092 in the
104th Congress.
Execution of Federal Prisoners
On September 27, 1995, H.R. 2359 was referred to the
Subcommittee on Crime. This bill proposes to clarify the method
of execution of Federal prisoners. On September 28, 1995, the
Subcommittee held a hearing on H.R. 2359. The Subcommittee
heard testimony in support of the legislation from Kevin
DiGregory, Deputy Assistant Attorney General of the Criminal
Division of the U.S. Department of Justice. The Subcommittee
heard testimony in opposition to the legislation from Marvin D.
Miller, Director of the National Association of Criminal
Defense Lawyers. The Subcommittee received written testimony in
support of H.R. 2359 from Andrew Fois, Assistant Attorney
General of the U.S. Department of Justice.
On September 28, 1996, the Subcommittee held a mark-up of
H.R. 2359 and ordered it reported favorably to the full
Committee, amended. No further action was taken on H.R. 2359 in
the 104th Congress.
DNA Identification Grants Improvement Act of 1995
On October 18, 1995, H.R. 2418, the ``DNA Identification
Grants Improvement Act of 1995,'' was referred to the
Subcommittee on Crime. The Subcommittee held a mark-up of the
bill on October 19, 1995 and ordered it favorably reported to
the full Committee, amended. On October 31, 1995, the full
Committee held a mark-up and ordered the bill favorably
reported to the House, as amended. On December 11, 1995, the
report on H.R. 2418 was filed (H. Rept. 104-393). On December
12, 1995, H.R. 2418 passed the House, as amended, under
suspension of the rules by a vote of 407 yeas to 5 nays. The
bill was then referred to the Senate Committee on the Judiciary
on December 13, 1995. No further action was taken on H.R. 2418
in the 104th Congress.
Fugitive Detention Act of 1995
On November 6, 1995, H.R. 2453, the ``Fugitive Detention
Act of 1995,'' was referred to the Subcommittee on Crime. The
bill's intent is to amend title 18, United States Code, to
increase speedy trial time limits. On March 7, 1996, the
Subcommittee held a hearing on H.R. 2453. The Subcommittee
received written testimony from Andrew Fois, Assistant Attorney
General of the U.S. Department of Justice.
On March 21, 1996, the Subcommittee held a mark-up of H.R.
2453 and ordered the bill favorably reported to the full
Committee. On April 24, 1996, the full Committee held a mark-up
of the bill and ordered it favorably reported to the House, as
amended. No further action was taken on H.R. 2453 in the 104th
Congress.
United States Marshals Service Improvement Act of 1995
On December 11, 1995, H.R. 2641, the ``United States
Marshals Service Improvement Act,'' was referred to the
Subcommittee on Crime. H.R. 2641 changes the selection process
of the nation's 94 U.S. Marshals from that of appointment by
the President with the advice and consent of the Senate, to
appointment by the Attorney General. U.S. Marshals would be
selected on a competitive basis, among career managers within
the Marshals Service, rather than being nominated by the
Administration and approved or rejected by the Senate. On March
7, 1996, the Subcommittee held a hearing on this bill. The
Subcommittee heard testimony in support of H.R. 2641 from the
Honorable Charles E. Schumer of New York. The Subcommittee also
received written testimony in support of the legislation from
Andrew Fois, Assistant Attorney General of the U.S. Department
of Justice, and Victor G. Oboyski, Jr., President of the
Federal Law Enforcement Officers Association.
On March 21, 1996, the Subcommittee held a mark-up of H.R.
2641 and ordered it favorably reported to the full Committee,
amended. On April 24, 1996, the full Committee held a mark-up
of the bill and ordered it favorably reported to the House, as
amended. On April 29, 1996, Mr. McCollum reported H.R. 2641
favorably to the House, amended. The bill passed the House, as
amended, on May 1, 1996 by a vote of 351 yeas to 72 nays. On
May 2, 1996, it was referred to the Senate Committee on the
Judiciary. No further action was taken on H.R. 2641 in the
104th Congress.
Mandatory Federal Prison Drug Treatment Act of 1995
On December 11, 1995, H.R. 2650, the ``Mandatory Federal
Prison Drug Treatment Act of 1995,'' was referred to the
Subcommittee on Crime. This legislation would amend title 18,
United States Code, to eliminate certain sentencing inequities
for drug offenders who undergo drug treatment. On March 7,
1996, the Subcommittee held a hearing on H.R. 2650. The
Subcommittee heard testimony in support of the bill from the
Honorable Fred Heineman of North Carolina.
On April 17, 1996, the Subcommittee held a mark-up of H.R.
2650 and ordered it favorably reported to the full Committee,
amended. On April 24, 1996, the full Committee held a mark-up
of the bill and ordered it favorably reported to the House, as
amended, with an additional full Committee amendment. Mr.
McCollum reported H.R. 2650 favorably to the House, amended, on
May 31, 1996 (H. Rept. 104-602). On June 4, 1996, H.R. 2650
passed the House, as amended, under suspension of the rules,
two-thirds affirmative vote required. On June 5, 1996, the bill
was referred to the Senate Committee on the Judiciary. No
further action was taken on H.R. 2650 in the 104th Congress.
Anti-Car Theft Improvements Act of 1995
On February 9, 1995, H.R. 2803, the ``Anti-Car Theft
Improvements Act of 1995,'' was referred to the Subcommittee on
Crime. This legislation would amend the anti-car theft
provisions of title 49, United States Code, to increase the
utility of motor vehicle title information to State and Federal
law enforcement officials, and for other purposes. On March 7,
1996, the Subcommittee held a hearing on H.R. 2803. The
Subcommittee heard testimony in support of this bill from the
Honorable Charles E. Schumer of New York. The Subcommittee also
received written testimony from Fred O. Dickinson, III,
Executive Director of the Florida Department of Highway Safety
and Motor Vehicles, and Andrew Fois, Assistant Attorney General
of the U.S. Department of Justice.
On March 21, 1996, the Subcommittee held a mark-up of H.R.
2803 and ordered the bill favorably reported to the full
Committee. On April 24, 1996, the full Committee held a mark-up
of the bill and ordered it favorably reported to the House. On
June 12, 1996, the report on H.R. 2803 was filed (H. Rept. 104-
618). On June 18, 1996, the bill passed the House, amended,
under suspension of the rules. H.R. 2803 passed the Senate on
June 20, 1996 and was signed into law by the President on July
2, 1996 (P.L. 104-152).
Law Enforcement and Industrial Security Cooperation Act of 1996
On May 4, 1996, H.R. 2996, the ``Law Enforcement and
Industrial Security Cooperation Act of 1996,'' was referred to
the Subcommittee on Crime. The bill proposes the creation of a
commission that would encourage cooperation between public
sector law enforcement agencies and private sector security
professionals to control crime. On March 7, 1996, the
Subcommittee held a hearing on this legislation. The
Subcommittee received written testimony in support of H.R. 2996
from Regis Becker, President of the American Society for
Industrial Security, and Andrew Fois, Assistant Attorney
General of the U.S. Department of Justice.
On March 21, 1996, the Subcommittee convened a mark-up
session of the bill and ordered it favorably reported to the
full Committee, amended. No further action was taken on H.R.
2996 in the 104th Congress.
Punishing Witness Retaliation and Jury Tampering
On March 20, 1996, H.R. 3120 was referred to the
Subcommittee on Crime. This legislation would amend title 18,
United States Code, by increasing the punishment for jury
tampering or witness intimidation and retaliation in federal
cases. The Subcommittee convened a mark-up session of the bill
on March 21, 1996 and ordered it favorably reported to the full
Committee. On April 24, 1996, H.R. 3120 was marked-up in full
Committee and then ordered favorably reported to the House,
amended. The report was filed on May 1, 1996 (H. Rept. 104-
459). On May 7, 1996, H.R. 3120 passed the House, as amended.
The bill passed the Senate on September 19, 1996 and was
approved by the President on October 1, 1996 (P.L. 104-214).
Government Accountability Act of 1996
On March 28, 1996, H.R. 3166, the ``Government
Accountability Act of 1996,'' was referred to the Subcommittee
on Crime. This bill proposes to amend title 18, United States
Code, with respect to the crime of false statement in a
Government matter. On March 29, 1996, the Subcommittee convened
a mark-up session of the bill and ordered it favorably reported
to the full Committee. The full Committee marked-up the bill on
June 11, 1996 and ordered favorably reported to the House,
amended. The report was filed on July 16, 1996 (H. Rept. 104-
680). On July 17, 1996, H.R. 3166 passed the House, as amended,
under suspension of the rules, by a vote of 417 yeas to 6 nays.
On July 25, 1996, the bill passed the Senate, amended. On
September 26, 1996, pursuant to H.Res. 535, the House agreed to
the Senate amendments with a House amendment, which the Senate
then agreed to on September 27, 1996. H.R. 3166 was signed into
law on October 11, 1996 (P.L. 104-292).
Contracting or Trading with Indians
On April 18, 1996, H.R. 3215 was referred to the
Subcommittee on Crime. This legislation proposes to amend title
18, United States Code, to repeal the provision relating to
Federal employees contracting or trading with Indians. On July
16, 1996, the Subcommittee on Crime was discharged from further
consideration of the bill. On that same day, the full Committee
convened a mark-up session of the bill and ordered it favorably
reported to the House by a vote of 25 yeas to 0 nays. The
report was filed on July 17, 1996 (H. Rept. 104-681). On July
29, 1996, H.R. 3215 passed the House under suspension of the
rules, two-thirds affirmative vote required. On July 31, 1996,
the bill passed the Senate and was signed into law by the
President on August 6, 1996 (P.L. 104-178).
Independent Counsel Accountability and Reform Act of 1996
On May 17, 1996, H.R. 3239, the ``Independent Counsel
Accountability and Reform Act of 1996,'' was referred to the
Subcommittee on Crime. This legislation is intended to reform
the independent counsel statue, and for other purposes. On
September 19, 1996, the Subcommittee convened a mark-up session
of the bill and ordered it favorably reported to the full
Committee. No further action was taken on H.R. 3239 in the
104th Congress.
Federal Law Enforcement Dependents Assistance Act of 1996
S. 2101, the ``Federal Law Enforcement Dependents
Assistance Act of 1996,'' proposes to provide educational
assistance to the dependents of Federal law enforcement
officials who are killed or disabled in the performance of
their duties. The legislation passed the Senate on September
20, 1996. On September 24, 1996, it was referred to the House
Committee on the Judiciary. On September 25, 1996, it was
referred to the Subcommittee on Crime. On September 26, 1996,
the House Committee on the Judiciary was discharged from
further consideration of S. 2102 and the legislation passed the
House. The President approved S. 2101 on October 3, 1996 (P.L.
104-238).