[Pages S5325-S5356]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2001

The PRESIDING OFFICER. Under the previous order, the Senate will now
resume consideration of S. 2549, which the clerk will report.
The assistant legislative clerk read as follows:

A bill (S. 2549) to authorize appropriations for fiscal
year 2001 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.

Pending:

Smith of New Hampshire amendment No. 3210, to prohibit
granting security clearances to felons.
McCain amendment No. 3214, to amendment No. 3210, to
require the disclosure of expenditures and contributions by
certain political organizations.

Mr. WARNER. Madam President, if my recollection serves me, the senior
Senator from Massachusetts was to offer an amendment which would be the
subject of debate for some period of time. That would be followed by
the senior Senator from Utah, Mr. Hatch, who likewise will offer an
amendment that would be the subject of debate. I see my distinguished
colleague. I yield to him for any clarification he wishes to make of my
statement.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Madam President, I am here in part today to offer Senator
Kennedy's amendment on his behalf and to speak in support of it. If the
good Senator from Virginia is ready and wishes to do that, we could
perhaps go through some of the cleared amendments on the authorization
bill. I am happy to do it either way, to join with him in offering
those amendments now for a few minutes and then to introduce the
Kennedy amendment, if he would like.
The PRESIDING OFFICER. The Chair wishes to inform both Senators that
the unanimous consent request was modified a brief time ago to provide
for the Senator from Utah to offer his amendment at 4 o'clock.
Mr. WARNER. Madam President, I am glad to be informed of that.
The PRESIDING OFFICER. It did not affect the positioning of the
amendment of the Senator from Massachusetts, which the Chair believes
is to be offered first.
Mr. LEVIN. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. WARNER. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. At this time, Senator Levin and I will act on some
cleared amendments.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Madam President, so we keep this clear, there is a
unanimous consent agreement that is currently in place, as modified, so
that immediately following the introduction of the Kennedy amendment
and Senators speaking thereon, at 4 o'clock Senator Hatch would then
introduce his amendment; is that correct?
The PRESIDING OFFICER. The Senator is correct.
Mr. LEVIN. Madam President, I ask unanimous consent that we maintain
that unanimous consent agreement in place without modification, exempt
that prior to my offering the Kennedy amendment, it be in order for the
Senator from Virginia to proceed with the cleared amendments, as he has
indicated. I further ask unanimous consent that immediately following
my introduction of the Kennedy amendment

[[Page S5326]]

and speaking thereon, the Senator from Minnesota be recognized to speak
in support of the Kennedy amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Virginia.

Amendment No. 3458

(Purpose: To clarify the duty of the Department of Veterans Affairs to
assist claimants for benefits)

Mr. WARNER. Madam President, on behalf of Senator McCain, I offer an
amendment that would clarify that the Secretary of Veterans Affairs
must assist claimants in developing claims for VA benefits.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Virginia [Mr. Warner], for Mr. McCain,
proposes an amendment numbered 3458.

The amendment is as follows:

On page 239, following line 22, add the following:

SEC. 656. CLARIFICATION OF DEPARTMENT OF VETERANS AFFAIRS
DUTY TO ASSIST.

(a) In General.--Section 5107 of title 38, United States
Code, is amended to read as follows:

``Sec. 5107 Assistance to claimants; benefit of the doubt;
burden of proof

``(a) The Secretary shall assist a claimant in developing
all facts pertinent to a claim for benefits under this title.
Such assistance shall include requesting information as
described in section 5106 of this title. The Secretary shall
provide a medical examination when such examination may
substantiate entitlement to the benefits sought. The
Secretary may decide a claim without providing assistance
under this subsection when no reasonable possibility exists
that such assistance will aid in the establishment of
entitlement.
``(b) The Secretary shall consider all evidence and
material of record in a case before the Department with
respect to benefits under laws administered by the Secretary
and shall give the claimant the benefit of the doubt when
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
the matter.
``(c) Except when otherwise provided by this title or by
the Secretary in accordance with the provisions of this
title, a person who submits a claim for benefits under a law
administered by the Secretary shall have the burden of
proof.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 51 of that title is amended by striking
the item relating to section 5017 and inserting the following
new item:

``5107 Assistance to claimants; benefit of the doubt; burden of
proof.''.

Mr. LEVIN. Madam President, this amendment has been cleared. We
support it.
Mr. WARNER. I urge adoption of the amendment.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 3458) was agreed to.
Mr. WARNER. Madam President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 3459

(Purpose: To authorize the Secretary of Veterans Affairs to furnish
headstones or markers for marked graves of, or otherwise commemorate,
certain individuals)

Mr. LEVIN. Madam President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Michigan [Mr. Levin], for Mr. Dodd,
proposes an amendment numbered 3459.

The amendment is as follows:

On page 415, between lines 2 and 3, insert the following:

SEC. 1061. AUTHORITY TO PROVIDE HEADSTONES OR MARKERS FOR
MARKED GRAVES OR OTHERWISE COMMEMORATE CERTAIN
INDIVIDUALS.

(a) In General.--Section 2306 of title 38, United States
Code, is amended--
(1) in subsections (a) and (e)(1), by striking ``the
unmarked graves of''; and
(2) by adding at the end the following:
``(f) A headstone or marker furnished under subsection (a)
shall be furnished, upon request, for the marked grave or
unmarked grave of the individual or at another area
appropriate for the purpose of commemorating the
individual.''.
(b) Applicability.--(1) Except as provided in paragraph
(2), the amendment to subsection (a) of section 2306 of title
38, United States Code, made by subsection (a) of this
section, and subsection (f) of such section 2306, as added by
subsection (a) of this section, shall apply with respect to
burials occurring before, on, or after the date of the
enactment of this Act.
(2) The amendments referred to in paragraph (1) shall not
apply in the case of the grave for any individual who died
before November 1, 1990, for which the Administrator of
Veterans' Affairs provided reimbursement in lieu of
furnishing a headstone or marker under subsection (d) of
section 906 of title 38, United States Code, as such
subsection was in effect after September 30, 1978, and before
November 1, 1990.

Mr. LEVIN. Madam President, this amendment would authorize the
Secretary of Veterans Affairs to furnish headstones or markers for
certain individuals. I believe the amendment has been cleared on both
sides.
Mr. WARNER. That is correct.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 3459) was agreed to.
Mr. LEVIN. Madam President, I move to reconsider the vote.
Mr. WARNER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 3460

(Purpose: To add $30,000,000 for the Navy for the procurement of Gun
Mount modifications; and to offset the increase by reducing by
$30,000,000 the amount authorized to be appropriated for the Navy for
procurement for aircraft ($13,100,000 from the amount for the block
modification upgrade program for P-3 aircraft, $9,000,000 from the
amount for the H-1 series to reclaim and convert aircraft from the
aerospace maintenance and regeneration center, and $7,900,000 from the
amount for procurement of SH-60R aircraft)

Mr. LEVIN. Madam President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Michigan [Mr. Levin], for Mr. Warner,
proposes an amendment numbered 3460.

The amendment is as follows:

On page 17, line 7, strike ``$1,479,950,000'' and insert
``$1,509,950,000''.
On page 17, line 5, strike ``$8,745,958,000'' and insert
``$8,715,958,000''.

Mr. LEVIN. This amendment authorizes modifications for gun mounts for
surface ships.
Mr. WARNER. This amendment has been cleared by both sides.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 3460) was agreed to.
Mr. WARNER. Madam President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 3461

(Purpose: To provide, with an offset, $8,000,000 for research,
development, test, and evaluation for the Air Force for Electronic
Warfare Development (PE604270F) for the Precision Location and
Identification Program (PLAID)

Mr. LEVIN. Madam President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Michigan [Mr. Levin], for Mr. Cleland, for
himself and Mr. Coverdell, proposes an amendment numbered
3461.

The amendment is as follows:

On page 48, between lines 20 and 21, insert the following:

SEC. 222. PRECISION LOCATION AND IDENTIFICATION PROGRAM
(PLAID).

(a) Increase in Amount.--(1) The amount authorized to be
appropriated by section 201(3) for research, development,
test, and evaluation for the Air Force is hereby increased by
$8,000,000.
(2) Of the amount authorized to be appropriated by section
201(3), as increased by paragraph (1), the amount available
for Electronic Warfare Development (PE604270F) is hereby
increased by $8,000,000, with the amount of such increase
available for the Precision Location and Identification
Program (PLAID).
(b) Offset.--The amount authorized to be appropriated by
section 201(1) for research,

[[Page S5327]]

development, test, and evaluation for the Army is hereby
decreased by $8,000,000, with the amount of the reduction
applied to Electronic Warfare Development (PE604270A).

Mr. LEVIN. Madam President, this amendment would add $8 million for
research, development, test, and evaluation for the Air Force for
Electronic Warfare Development for the Precision Location and
Identification Program. I believe the amendment has been cleared by the
other side.
Mr. WARNER. That is correct.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 3461) was agreed to.
Mr. LEVIN. Madam President, I move to reconsider the vote.
Mr. WARNER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 3462

(Purpose: To add $30,000,000 for the Navy for the procurement of CIWS
MODS for block 1B modifications; and to offset the increase by reducing
by $30,000,000 the amount authorized to be appropriated for the Navy
for procurement for the block modification upgrade program for the P-3
aircraft)

Mr. WARNER. Madam President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Virginia [Mr. Warner] proposes an
amendment numbered 3462.

The amendment is as follows:
On page 17, line 7, strike ``$1,479,950,000'' and insert
``$1,509,950,000''.
On page 17, line 5, strike ``$8,745,958,000'' and insert
``$8,715,958,000''.

The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 3462) was agreed to.
Mr. WARNER. Madam President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 3463

(Purpose: To require a report on submarine rescue support vessels)

Mr. LEVIN. Madam President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Michigan [Mr. Levin], for Ms. Landrieu,
proposes an amendment numbered 3463.

The amendment is as follows:
On page 378, between lines 19 and 20, insert the following:

SEC. 1027. REPORT ON SUBMARINE RESCUE SUPPORT VESSELS.

(a) Requirement.--The Secretary of the Navy shall submit to
Congress, together with the submission of the budget of the
President for fiscal year 2002 under section 1105 of title
31, United States Code, a report on the plan of the Navy for
providing for submarine rescue support vessels through fiscal
year 2007.
(b) Content.--The report shall include a discussion of the
following:
(1) The requirement for submarine rescue support vessels
through fiscal year 2007, including experience in changing
from the provision of such vessels from dedicated platforms
to the provision of such vessels through vessel of
opportunity services and charter vessels.
(2) The resources required, the risks to submariners, and
the operational impacts of the following:
(A) Chartering submarine rescue support vessels for terms
of up to five years, with options to extend the charters for
two additional five-year periods.
(B) Providing submarine rescue support vessels using vessel
of opportunity services.
(C) Providing submarine rescue support services through
other means considered by the Navy.

Mr. LEVIN. Madam President, this amendment requires the Secretary of
the Navy to submit a report on the submarine rescue support vessels. I
believe it has been cleared by the other side.
Mr. WARNER. That is correct.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 3463) was agreed to.
Mr. LEVIN. Madam President, I move to reconsider the vote.
Mr. WARNER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 3464

(Purpose: To require a GAO-convened independent study of the OMB
Circular A-76 process)

Mr. WARNER. Madam President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Virginia [Mr. Warner] proposes an
amendment numbered 3464.

The amendment is as follows:
On page 303, between lines 6 and 7, insert the following:

SEC. 814. STUDY OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR
A-76 PROCESS.

(a) GAO-Convened Panel.--The Comptroller General shall
convene a panel of experts to study rules, and the
administration of the rules, governing the selection of
sources for the performance of commercial or industrial
functions for the Federal Government from between public and
private sector sources, including public-private competitions
pursuant to the Office of Management and Budget Circular A-
76. The Comptroller General shall be the chairman of the
panel.
(b) Composition of Panel.--(1) The Comptroller General
shall appoint highly qualified and knowledgeable persons to
serve on the panel and shall ensure that the following groups
receive fair representation on the panel:
(A) Officers and employees of the United States.
(B) Persons in private industry.
(C) Federal labor organizations.
(2) For the purposes of the requirement for fair
representation under paragraph (1), persons serving on the
panel under subparagraph (C) of that paragraph shall not be
counted as persons serving on the panel under subparagraph
(A) or (B) of that paragraph.
(c) Participation by Other Interested Parties.--The
Comptroller General shall ensure that the opportunity to
submit information and views on the Office of Management and
Budget Circular A-76 process to the panel for the purposes of
the study is accorded to all interested parties, including
officers and employees of the United States not serving on
the panel and entities in private industry and
representatives of federal labor organizations not
represented on the panel.
(d) Information From Agencies.--The panel may secure
directly from any department or agency of the United States
any information that the panel considers necessary to carry
out a meaningful study of administration of the rules
described in subsection (a), including the Office of
Management and Budget Circular A-76 process. Upon the request
of the Chairman of the panel, the head of such department or
agency shall furnish the requested information to the panel.
(e) Report.--The Comptroller General shall submit a report
on the results of the study to Congress.
(f) Definition.--In this section, the term ``federal labor
organization'' has the meaning given the term ``labor
organization'' in section 7103(a)(4) of title 5, United
States Code.

The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 3464) was agreed to.
Mr. WARNER. Madam President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 3465

(Purpose: To authorize a land conveyance, Los Angeles Air Force Base,
California)

Mr. LEVIN. Madam President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Michigan [Mr. LEVIN], for Mrs. Feinstein,
proposes an amendment numbered 3465.

The amendment is as follows:
On page 543, strike line 20 and insert the following:

Part III--Air Force Conveyances

SEC. 2861. LAND CONVEYANCE, LOS ANGELES AIR FORCE BASE,
CALIFORNIA.

(a) Conveyance Authorized.--The Secretary of the Air Force
may convey, by sale or lease upon such terms as the Secretary
considers appropriate, all or any portion of the following
parcels of real property, including improvements thereon, at
Los Angeles Air Force Base, California:
(1) Approximately 42 acres in El Segundo, California,
commonly known as Area A.
(2) Approximately 52 acres in El Segundo, California,
commonly known as Area B.
(3) Approximately 13 acres in Hawthorne, California,
commonly known as the Lawndale Annex.
(4) Approximately 3.7 acres in Sun Valley, California,
commonly known as the Armed Forces Radio and Television
Service Broadcast Center.
(b) Consideration.--As consideration for the conveyance of
real property under subsection (a), the recipient of the
property

[[Page S5328]]

shall provide for the design and construction on real
property acceptable to the Secretary of one or more
facilities to consolidate the mission and support functions
at Los Angeles Air Force Base. Any such facility must comply
with the seismic and safety design standards for Los Angeles
County, California, in effect at the time the Secretary takes
possession of the facility.
(c) Leaseback Authority.--If the fair market value of a
facility to be provided as consideration for the conveyance
of real property under subsection (a) exceeds the fair market
value of the conveyed property, the Secretary may enter into
a lease for the facility for a period not to exceed 10 years.
Rental payments under the lease shall be established at the
rate necessary to permit the lessor to recover, by the end of
the lease term, the difference between the fair market value
of a facility and the fair market value of the conveyed
property. At the end of the lease, all right, title, and
interest in the facility shall vest in the United States.
(d) Appraisal of Property.--The Secretary shall obtain an
appraisal of the fair market value of all property and
facilities to be sold, leased, or acquired under this
section. An appraisal shall be made by a qualified appraiser
familiar with the type of property to be appraised. The
Secretary shall consider the appraisals in determining
whether a proposed conveyance accomplishes the purpose of
this section and is in the interest of the United States.
Appraisal reports shall not be released outside of the
Federal Government, other than the other party to a
conveyance.
(e) Description of Property.--The exact acreage and legal
description of real property to be conveyed under subsection
(a) or acquired under subsection (b) shall be determined by a
survey satisfactory to the Secretary. The cost of the survey
shall be borne by the recipient of the property.
(f) Exemption.--Section 2696 of title 10, United States
Code, does not apply to the conveyance authorized by
subsection (a).
(g) Additional Terms and Conditions.--The Secretary may
require such additional terms and conditions in connection
with a conveyance under subsection (a) or a lease under
subsection (c) as the Secretary considers appropriate to
protect the interests of the United States.

Part IV--Defense Agencies Conveyances

Mr. WARNER. Madam President, I would like to highlight the work of
Congressman Steve Kuykendall concerning this important amendment to the
National Defense Authorization Act for Fiscal Year 2001. His tireless
efforts over the past several months ensured this legislation was not
only included in the chairman's mark during the House Armed Services
Committee markup of H.R. 4205, but also that it remained unchanged
during the debate on the House floor. Although I am confident that we
could have resolved this issue in conference, there is always some risk
when the House and Senate do not have identical legislation provisions.
As a thorough legislator unwilling to take this risk, Mr. Kuykendall
immediately sought my assistance after the House had acted on the bill
to include the proposal in the Senate's defense authorization
legislation. By ensuring that the land-for-building swap language is
included in both the House and Senate authorization bills, Mr.
Kuykendall has guaranteed that this innovative solution will appear in
the final defense authorization legislation sent to the President for
signature. I was glad to work with my colleague from the house to
include his language in our bill, and appreciate Senator Feinstein's
support on this effort.
Mr. LEVIN. Madam President, this amendment would authorize the
Secretary of the Air Force to convey a fair market value of
approximately 110 acres at the Los Angeles Air Force Base. I believe
this amendment has been cleared.
Mr. WARNER. That is correct.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 3465) was agreed to.
Mr. LEVIN. Madam President, I move to reconsider the vote.
Mr. WARNER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 3466

(Purpose: To provide an additional amount of $92,000,000 for the
procurement of remanufactured AV-8B aircraft for the Navy; and to
offset the increase by reducing the amount provided for the procurement
of UC-35 aircraft for the Navy by $33,400,000, by reducing the amount
provided for the procurement of automatic flight control systems for
EA-6B aircraft by $17,700,000, and by reducing the amount provided for
engineering change proposal 583 for FA-18 aircraft for the Navy by
$40,900,000)

Mr. WARNER. Madam President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Virginia [Mr. WARNER], for Mr. Santorum,
proposes an amendment numbered 3466.
The amendment is as follows
On page 31, between lines 18 and 19, insert the following:

SEC. 126. REMANUFACTURED AV-8B AIRCRAFT.

Of the amount authorized to be appropriated by section
102(a)(1)--
(1) $318,646,000 is available for the procurement of
remanufactured AV-8B aircraft;
(2) $15,200,000 is available for the procurement of UC-35
aircraft;
(3) $3,300,000 is available for the procurement of
automatic flight control systems for EA-6B aircraft; and
(4) $46,000,000 is available for engineering change
proposal 583 for FA-18 aircraft.

Mr. WARNER. This amendment has been cleared on both sides. I urge its
adoption.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 3466) was agreed to.
Mr. WARNER. Madam President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 3467

(Purpose: To make available, with an offset, $5,000,000 for research,
development, test, and evaluation for the Navy for the Information
Technology Center and Human Resource Enterprise Strategy)

Mr. LEVIN. Madam President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Michigan [Mr. Levin], for Ms. Landrieu,
proposes an amendment numbered 3467.

The amendment is as follows
On page 48, between lines 20 and 21, insert the following:

SEC. 222. NAVY INFORMATION TECHNOLOGY CENTER AND HUMAN
RESOURCE ENTERPRISE STRATEGY.

(a) Availability of Increased Amount.--(1) Of the amount
authorized to be appropriated by section 201(2), for
research, development, test, and evaluation for the Navy,
$5,000,000 shall be available for the Navy Program Executive
Office for Information Technology for purposes of the
Information Technology Center and for the Human Resource
Enterprise Strategy implemented under section 8147 of the
Department of Defense Appropriations Act, 1999 (Public Law
105-262; 112 Stat. 2341; 10 U.S.C. 113 note).
(2) Amounts made available under paragraph (1) for the
purposes specified in that paragraph are in addition to any
other amounts made available under this Act for such
purposes.
(b) Offset.--Of the amount authorized to be appropriated by
section 201(2), the amount available for Marine Corps Assault
Vehicles (PE603611M) is hereby reduced by $5,000,000.

Mr. LEVIN. Madam President, this amendment adds $5 million to the
authorization of the Navy's Information Technology Center. I believe
this amendment has been cleared.
Mr. WARNER. That is correct.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 3467) was agreed to.
Mr. LEVIN. Madam President, I move to reconsider the vote.
Mr. WARNER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 3468

(Purpose: To increase the authorization of appropriations for the
Marine Corps for procurement by $2,000,000 for night vision (M203
tilting brackets), by $2,000,000 for 5/4T truck high mobility
multipurpose wheeled vehicles (including $1,500,000 for recruiter
vehicles), and by $6,000,000 for the mobile electronic warfare support
system; and to offset the total amount of the increase by reducing the
authorization of appropriations for the Army for other procurement for
the family of medium tactical vehicles by $10,000,000)

Mr. WARNER. Madam President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Virginia [Mr. Warner] proposes an
amendment numbered 3468.

[[Page S5329]]

The amendment is as follows:
On page 17, line 13, strike ``$1,181,035,000'' and insert
``$1,191,035,000''.
On page 16, line 22, strike ``$4,068,570,000'' and insert
``$4,058,570,000''.

Mr. WARNER. This amendment would increase Marine Corps procurement
accounts $10 million for various items. It has been cleared on both
sides.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 3468) was agreed to.
Mr. WARNER. Madam President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 3469 To Amendment No. 3383

Mr. LEVIN. Madam President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Michigan [Mr. Levin], for Mr. Kennedy,
proposes an amendment numbered 3469.

The amendment is as follows:
On page 2, strike line 24 and all that follows through page
3, line 3, and insert the following:
(d) Offset.--The amount authorized to be appropriated by
section 201(4) for research, development, test, and
evaluation, Defense-wide is hereby decreased by $5,000,000,
with the amount of such decrease applied to computing systems
and communications technology (PE602301E).

Mr. LEVIN. Madam President, this is a technical amendment to
amendment No. 3383. I believe this has been cleared.
Mr. WARNER. That is correct.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 3469) to amendment No. 3383 was agreed to.
Mr. LEVIN. Madam President, I move to reconsider the vote.
Mr. WARNER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 3470

(Purpose: To modify the management and per diem requirements for
members subject to lengthy or numerous deployments; and to authorize
extensions of TRICARE managed care support contacts)

Mr. WARNER. Madam President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Virginia [Mr. Warner], for himself, Mr.
Hutchinson and Mr. Cleland, proposes an amendment numbered
3470.

The amendment is as follows:
On page 200, after line 23, insert the following:

SEC. 566. MANAGEMENT AND PER DIEM REQUIREMENTS FOR MEMBERS
SUBJECT TO LENGTHY OR NUMEROUS DEPLOYMENTS.

(a) Management of Deployments of Members.--Section 586(a)
of the National Defense Authorization Act for Fiscal Year
2000 (Public Law 106-65; 113 Stat. 637) is amended in the
text of section 991 of title 10, United States Code, set
forth in such section 586(a)--
(1) in subsection (a), by striking ``an officer in the
grade of general or admiral'' in the second sentence and
inserting ``the designated component commander for the
member's armed force''; and
(2) in subsection (b)--
(A) in paragraph (1), by inserting ``or homeport, as the
case may'' before the period at the end;
(B) by redesignating paragraphs (2) and (3) as paragraphs
(3) and (4), respectively;
(C) by inserting after paragraph (1) the following new
paragraph (2):
``(2) In the case of a member of a reserve component
performing active service, the member shall be considered
deployed or in a deployment for the purposes of paragraph (1)
on any day on which, pursuant to orders that do not establish
a permanent change of station, the member is performing the
active service at a location that--
``(A) is not the member's permanent training site; and
``(B) is--
``(i) at least 100 miles from the member's permanent
residence; or
``(ii) a lesser distance from the member's permanent
residence that, under the circumstances applicable to the
member's travel, is a distance that requires at least three
hours of travel to traverse.''; and
(D) in paragraph (3), as redesignated by subparagraph (B)
of this paragraph--
(i) by striking ``or'' at the end of subparagraph (A);
(ii) by striking the period at the end of subparagraph (B)
and inserting ``; or''; and
(iii) by adding at the end the following:
``(C) unavailable solely because of--
``(i) a hospitalization of the member at the member's
permanent duty station or homeport or in the immediate
vicinity of the member's permanent residence; or
``(ii) a disciplinary action taken against the member.''.
(b) Associated Per Diem Allowance.--Section 586(b) of that
Act (113 Stat. 638) is amended in the text of section 435 of
title 37, United States Code, set forth in such section
586(b)--
(1) in subsection (a), by striking ``251 days or more out
of the preceding 365 days'' and inserting ``501 or more days
out of the preceding 730 days''; and
(2) in subsection (b), by striking ``prescribed under
paragraph (3)'' and inserting ``prescribed under paragraph
(4)''.
(c) Review of Management of Deployments of Individual
Members.-- Not later than March 31, 2002, the Secretary of
Defense shall submit to the Committees on Armed Services of
the Senate and the House of Representatives a report on the
administration of section 991 of title 10, United States Code
(as added by section 586(a) of the National Defense
Authorization Act for Fiscal Year 2000), during the first
year that such section 991 is in effect. The report shall
include--
(1) a discussion of the experience in tracking and
recording the deployments of members of the Armed Forces; and
(2) any recommendations for revision of such section 991
that the Secretary considers appropriate.

SEC. 567. EXTENSION OF TRICARE MANAGED CARE SUPPORT
CONTRACTS.

(a) Authority.--Notwithstanding any other provision of law,
the TRICARE managed care support contracts in effect, or in
final stages of acquisition as of September 30, 1999, may be
extended for four years, subject to subsection (b).
(b) Conditions.--Any extension of a contract under
paragraph (1)--
(1) may be made only if the Secretary of Defense determines
that it is in the best interest of the Government to do so;
and
(2) shall be based on the price in the final best and final
offer for the last year of the existing contract as adjusted
for inflation and other factors mutually agreed to by the
contractor and the Government.

Mr. WARNER. Madam President, this amendment would modify the
management and per diem requirements for the military service members
subject to lengthy deployments and to authorize extensions of TRICARE
management care support contracts. This has been cleared on both sides.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 3470) was agreed to.
Mr. WARNER. Madam President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 3471

(Purpose: To require reports on the progress of the Federal Government
in developing information assurance strategies)

Mr. LEVIN. Madam President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Michigan [Mr. Levin], for Mr. Schumer and
Mr. Bennett, proposes an amendment numbered 3471.

The amendment is as follows:

On page 378, between lines 19 and 20, insert the following:

SEC. 1027. REPORTS ON FEDERAL GOVERNMENT PROGRESS IN
DEVELOPING INFORMATION ASSURANCE STRATEGIES.

(a) Findings.--Congress makes the following findings:
(1) The protection of our Nation's critical infrastructure
is of paramount importance to the security of the United
States.
(2) The vulnerability of our Nation's critical sectors--
such as financial services, transportation, communications,
and energy and water supply--has increased dramatically in
recent years as our economy and society have become ever more
dependent on interconnected computer systems.
(3) Threats to our Nation's critical infrastructure will
continue to grow as foreign governments, terrorist groups,
and cyber-criminals increasingly focus on information warfare
as a method of achieving their aims.
(4) Addressing the computer-based risks to our Nation's
critical infrastructure requires extensive coordination and
cooperation within and between Federal agencies and the
private sector.
(5) Presidential Decision Directive No. 63 (PDD-63)
identifies 12 areas critical to the functioning of the United
States and requires certain Federal agencies, and encourages
private sector industries, to develop and comply with
strategies intended to enhance the Nation's ability to
protect its critical infrastructure.
(6) PDD-63 requires lead Federal agencies to work with
their counterparts in the private sector to create early
warning information sharing systems and other cyber-security
strategies.
(7) PDD-63 further requires that key Federal agencies
develop their own internal information assurance plans, and
that these

[[Page S5330]]

plans be fully operational not later than May 2003.
(b) Report Requirements.--(1) Not later than July 1, 2001,
the President shall submit to Congress a comprehensive report
detailing the specific steps taken by the Federal Government
as of the date of the report to develop infrastructure
assurance strategies as outlined by Presidential Decision
Directive No. 63 (PDD-63). The report shall include the
following:
(A) A detailed summary of the progress of each Federal
agency in developing an internal information assurance plan.
(B) The progress of Federal agencies in establishing
partnerships with relevant private sector industries.
(2) Not later than 120 days after the date of the enactment
of this Act, the Secretary of Defense shall submit to
Congress a detailed report on the roles and responsibilities
of the Department of Defense in defending against attacks on
critical infrastructure and critical information-based
systems. The report shall include the following:
(A) A description of the current role of the Department of
Defense in implementing Presidential Decision Directive No.
63 (PDD-63).
(B) A description of the manner in which the Department is
integrating its various capabilities and assets (including
the Army Land Information Warfare Activity (LIWA), the Joint
Task Force on Computer Network Defense (JTF-CND), and the
National Communications System) into an indications and
warning architecture.
(C) A description of Department work with the intelligence
community to identify, detect, and counter the threat of
information warfare programs by potentially hostile foreign
national governments and sub-national groups.
(D) A definitions of the terms ``nationally significant
cyber event'' and ``cyber reconstitution''.
(E) A description of the organization of Department to
protect its foreign-based infrastructure and networks.
(F) An identification of the elements of a defense against
an information warfare attack, including the integration of
the Computer Network Attack Capability of the United States
Space Command into the overall cyber-defense of the United
States.

Mr. LEVIN. This amendment provides for reports on the progress of the
Federal Government in developing information assurance strategies. I
believe this has also been cleared.
Mr. WARNER. That is correct.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 3471) was agreed to.
Mr. LEVIN. Madam President, I move to reconsider the vote.
Mr. WARNER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 3472

(Purpose: To reform Government information security by strengthening
information security practices throughout the Federal Government)

Mr. WARNER. Madam President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Virginia [Mr. Warner], for Mr. Thompson,
for himself, Mr. Lieberman, Mr. Akaka, Mr. Cleland, Mr.
Helms, Mr. Voinovich, Mr. Abraham, and Ms. Collins, proposes
an amendment numbered 3472.

(The text of the amendment is printed in today's Record under
``Amendments Submitted.'')
Mr. THOMPSON. Madam President, I offer this amendment on behalf of
myself as chairman of the Governmental Affairs Committee and Senator
Lieberman, the committee's ranking minority member. This amendment
deals with the important issue of information security at the
Department of Defense and other Federal agencies. The amendment is
essentially the same as S. 1993, a bill reported by our committee this
past April.
Senator Lieberman and I introduced the original S. 1993 last November
as the result of the considerable time spent by the Governmental
Affairs Committee last Congress examining the state of Federal
government information systems. Numerous Governmental Affairs Committee
hearings and General Accounting Office reports uncovered and identified
systemic failures of government information systems which highlighted
our nation's vulnerability to computer attacks--from international and
domestic terrorists to crime rings to everyday hackers.
Report after report, agency after agency, we learned that our
nation's underlying information infrastructure is riddled with
vulnerabilities which represent severe security flaws and risks to our
national security, public safety and personal privacy.
In fact, GAO believes the problems in the government's information
technology systems to be so severe that it has put government-wide
information security on its list of ``high-risk'' government programs--
programs which are most vulnerable to waste, fraud, abuse and
mismanagement.
For example, GAO told us:
That unknown and unauthorized individuals were gaining access to
highly sensitive unclassified information at the Department of Defense;
That weaknesses in IRS computer security controls continue to place
IRS systems and taxpayer data ``at serious risk to both internal and
external attack'';
That ``pervasive, serious weaknesses jeopardize State Department
operations'';
That ``many NASA mission-critical systems face serious risks'';
That flight safety is jeopardized by weak computer security practices
at FAA; and
That, based on the most recent review of the government's 24 largest
agencies, computer security weaknesses place critical government
operations, such as national defense, tax collection, law enforcement
and benefit distribution, at risk.
At our hearings, we learned from the Director of Central
Intelligence, George Tenet, that information warfare or cyberterrorism
has the potential to deal a crippling blow to our national security if
strong measures are not taken to counter it. Potential threats range
from national intelligence and military organizations, terrorists,
criminals, industrial competitors, hackers, and disgruntled or disloyal
insiders.
Director Tenet stated that several countries, including Russia and
China, have government-sponsored information warfare programs with both
offensive and defensive applications. These countries see information
warfare as a way of leveling the playing field against a stronger
military power, such as the U.S.
We learned from the Director of the National Security Agency, General
Minihan, that severe deficiencies exist in our ability to respond to a
coordinated attack on our national infrastructure and information
systems.
We heard from agents of the Social Security Administration's Office
of Inspector General who described how computer crimes were committed
by SSA employees. This demonstrated the danger of the ``inside threat''
to agencies that do not adequately monitor and limit access to computer
information by their own employees.
And finally, we heard from reformed hacker, Kevin Mitnick, and
learned of his ability to crack into systems without ever touching a
computer. He told us that, even if we did everything else right,
without strong personnel security, nothing is safe. He described how he
successfully tricked the employees of a multi-national company into
giving him pass codes to the company's security access devices. He said
``The human side of computer security is easily exploited and
constantly overlooked.''

And, yet, even with evidence from all of these various experts on how
information systems should be managed to prevent against attacks, year
after year, we continue to receive reports detailing significant
security breaches at Federal agencies.
The one thing that came through loud and clear is that at the core of
the government problems is the absence of effective management. GAO
told us ``Poor security program planning and management continue to be
fundamental problems . . . What needs to emerge is a coordinated and
comprehensive management strategy.''
To identify potential management solutions, we asked GAO to study the
management practices of organizations known for their superior security
programs. When GAO looked at eight organizations--most of which were
private companies--GAO found that these organizations implemented
information security policies on an ongoing basis through a coordinated
management framework.
Agencies clearly must do more than establish programs and set
management goals--agencies and the people responsible for managing
information

[[Page S5331]]

systems in those agencies must be held accountable for their actions.
That is what Senator Lieberman and I intend with this amendment. The
primary objective of the amendment is to address the management
challenges associated with operating in the current interdependent
computing environment. It will provide a coordinated and comprehensive
management approach to protecting information.
For example, the bill would:
Vest overall government accountability within the highest levels of
the Executive Branch [Deputy Director for Management at the Office of
Management and Budget];
Create specific management rules for agency heads, such as requiring
agency-wide security programs;
Require agencies to have an annual independent evaluation of their
information security programs and practices;
Focus on the importance of training programs and government-wide
incident response handling.
Our amendment reflects changes made to S. 1993 based on comments
received from our colleagues in the Senate and working with the
Department of Defense and others in the intelligence community, the
Office of Management and Budget, the agency Inspectors General, and
industry.
We urge support of our amendment and believe that, through continued
vigorous oversight, we will drive the Federal government to focus on
improving its computer security deficiencies. I look forward to working
with my colleagues to ensure that government information technology
systems are secure and that the information within those systems is
protected from further attacks.
Mr. LIEBERMAN. Madam President, I want to thank Chairman Warner and
Ranking Member Levin for their foresight in accepting the amended text
of S. 1993, the Government Information Security Act, which was
unanimously reported out of the Government Affairs Committee.
We are now far enough into the digital age to understand both its
promise and its pitfalls. Our booming economy is driven in large part
by the dot.com entrepreneurs who are providing goods and services
faster and more cost-effectively than ever before in our history. But
we are also experiencing threats to our privacy, to the integrity of
our digitized information, and even to our ability to use our computers
freely.
We know there will be trade-offs for the benefits government will
reap in the digital age. But, I offer this sincere warning now:
information security cannot be one of them. With this amendment, we
would lay the groundwork for securing much of the government's
electronic information. Above all else, protecting the integrity, the
availability and the confidentiality of information stored on federal
computers is central to serving taxpayers in the digital age. And we
must be vigilant about it.
Like the rest of the nation, the government is ever more dependent on
automated information systems to store information and perform tasks.
At hearings before the Government Affairs Committee last Congress,
however, witnesses testified that such increased reliance has not been
met by an equivalent strengthening of the security of those systems. It
is chilling to think of less than perfect security in the context, for
example, of tax and wage information the Internet Revenue Service
maintains, troop movements monitored by the Defense Department, or
public health threats analyzed by the Centers of Disease Control.
Without proper security, government's dependence on computers would
expose to exploitation all of this information--and much more.
Indeed, some of this information may be in jeopardy right now. A
series of General Accounting Office (GAO) studies found government
computer security so lax that GAO put the entire apparatus on its list
of ``high risk'' government programs. GAO reported in September 1998
that inadequate controls over information systems at the Veterans
Administration exposed many of its service delivery and management
systems to disruption or misuse. In May 1998, the GAO gained
unauthorized access to State Department networks, enabling the GAO, had
it tried, to modify, delete or download data and shut down services. In
May 1999, GAO reported that one of its test teams gained access to
mission critical computer systems at NASA, which would have allowed the
team to control spacecraft or alter scientific data returned from
space.
Our problem is not simply a technical one. It is also a cultural one.
The federal government can purchase and implement the most advanced
security programs it can afford but unless top government officials
acknowledge that our future depends on information security, those
programs will be meaningless. But even high-level attention to and
responsibility for security will mean little unless everyone and anyone
who uses a computer--which, these days, must include practically every
government worker--does their part to ensure the security of the system
on which they work. This amendment, therefore, focuses on good
management practices to ensure secure government information systems.

Had this amendment been in place earlier this year when the ``Love
Bug'' and successive, mutating viruses wreaked havoc on the world's
computers, government would have been better prepared to withstand the
attack. I hope that government employees would have been more aware of
the need to upgrade their systems' security software to ensure that
such ``worms,'' as they are called, were barred from the system. And
this amendment's training provisions would have helped to ensure that
employees were versed in the dangers of opening attachments from
unknown senders.
The cornerstone of this amendment is the plan each agency must
develop to protect sensitive federal information systems. Agency chief
information officers (CIOs) would be responsible for developing and
implementing the security programs, which must undergo annual
evaluations and be subject to the approval of the Office of Management
and Budget (OMB).
Because we need to change our cultural attitudes toward information
security, the OMB also would be responsible for establishing
government-wide policies promoting security as a central part of each
agency's operation. And we intend to hold agency heads accountable for
implementing those policies. This amendment requires high-level
accountability for the management of agency systems beginning with the
Director of OMB and agency heads. Each agency's plan must reflect an
understanding that computer security is an integral part of the
development process for any new system. Agencies now tend to develop a
system and consider security issues only as the system is about to go
online.
This amendment establishes an ongoing, periodic reporting, testing
and evaluation process to gauge the effectiveness of agencies' policies
and procedures. This would be accomplished through reviews of agency
budgets, program performance and financial management. And the
amendment requires an independent, annual evaluation of all information
security practices and programs to be conducted by the agency's
Inspector General, GAO or an independent external auditor. I hope that
the IGs will use their limited resources wisely and use their
discretion in targeting those areas of their agencies' programs which
require the most attention. In addition, I hope that agency heads will
work with their IGs, especially when it comes to sharing information on
potential threats to agencies' systems.
Our amendment requires that agencies report unauthorized intrusions
into government systems. GSA currently has a program for reporting and
responding to such incidents. The amendment requires agencies to use
this reporting and monitoring system.
The amendment requires that the national security and classified
systems adhere to the same management structure as every other
government system under our bill. This means they must develop a plan
addressing security upgrades, although the plan need not be approved
by OMB. To address particular concerns raised by the defense and
intelligence communities, the amendment allows the heads of agencies
with national security and classified systems to designate their own
independent evaluators in the interest of protecting sensitive
information and system vulnerabilities. And the Secretary of Defense,
the Director of Central Intelligence, and other agency heads, as
designated by the President, may develop their own procedures for

[[Page S5332]]

detecting, reporting and responding to security incidents.

Finally, President Clinton has proposed a very creative idea known as
the Federal Cyber Service designed to strengthen the government's cadre
of information security professionals. Our amendment authorizes this
program and gives agencies the flexibility they need to implement it.
The program includes scholarships in exchange for government service,
retraining computer information specialists and, as part of our
campaign to influence cultural behavior, proposals to promote cyber-
security awareness among Federal workers and high school and secondary
school students.
Since Senator Thompson and I introduced S. 1993 last November, we
have worked closely with the Administration, the Department of Defense,
the National Security Agency, the Department of Energy, the CIO
Council, the Inspector General community, and interested parties
outside government. We have made changes to address the concerns that
have been raised and I am very pleased that the administration strongly
supports the provisions.
Witnesses testifying at the Governmental Affairs Committee hearing on
S. 1993 were also very supportive of the bill. Jack Brock, Director of
GAO's Governmentwide and Defense Information Systems Group in the
Accounting and Information Management Division testified that ``the
bill, in fact, incorporates the basic tenets of good security
management found in our report on security practices of leading
organizations. . . . '' He also said that ``the key to this process is
recognizing that information security is not a technical matter of
locking down systems, but rather a management problem. . . . Thus, it
is highly appropriate that S. 1993 requires a risk management approach
that incorporates these elements.''
Roberta Gross, the Inspector General at the National Aeronautics and
Space Administration testified that ``. . . S. 1993 is a very positive
step in highlighting the importance of centralized oversight and
coordination in responding to risks and threats to IT [information
technology] security.'' S. 1993 ``. . . importantly recognizes that IT
security is one of the most important issues in shaping future Federal
planning and investment . . . the Act makes it clear that each agency
must be far more vigilant and involved than current practices.''
Another witness, James Adams, Chief Executive Officer of Defense, a
security consulting firm, testified that S. 1993 is ``. . . thoughtful
and badly needed legislation . . .'' which ``. . . takes a crucial step
forward.'' Ken Watson of Cisco Systems noted hat S. 1993 is consistent
with what industry has already been encouraging, that is that ``. . .
security must be promoted as an integral component of each agency's
business operations, and information technology security training is
essential. . . .''
Mr. President, it is my hope that, if enacted, this amendment will
improve our computer security to the point where the operations of
government in the digital age are performed with the privacy and well-
being of the American public in mind. Again, I am pleased the
leadership of the Armed Services Committee has accepted this amendment
because, in the digital age, there is no such thing as moving too
quickly.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 3472) was agreed to.
Mr. WARNER. Madam President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. WARNER. Madam President, I believe we will proceed in accordance
with the order.
Madam President, I rise this afternoon--14 days since the Senate
first turned to consideration of the Fiscal Year 2001 Defense
Authorization Bill--to, once again, emphasize the importance of the
Senate passing this critical legislation. Our troops deployed around
the world, many in harm's way, their families here at home, and all
those who have answered the call to duty before them are waiting on the
Senate to act.
Since June 6 when the Senate first began consideration of the Defense
Authorization bill we have had productive debate and dialogue. The
Senate has spent four days debating and voting on this legislation, and
the Committee has done a great deal of work during the ``down time''--
when the Senate was considering various appropriations bills--in
clearing many of the amendments that are in order on the authorization
bill. We now have a Unanimous Consent agreement for the next day and a
half to deal with several pending amendments. In my view, there is
perhaps an additional day's worth of debate and votes on the remaining
amendments which we believe will be offered to this bill. I urge my
colleagues to work with the Committee on any remaining amendments so
that we can pass this bill in the Senate and send a strong signal of
support to our troops.
Mr. President, I think it is useful to remind my colleagues of the
amount of hard work that goes into the annual defense authorization
bill. This year alone, the Armed Services Committee has conducted 50
hearings related to the defense budget, and spent four days--15 hours--
in marking up the bill which is before the Senate.
This bill, which we reported out of the Senate Armed Services
Committee on May 12th with bipartisan support, is a good bill which
will have a positive impact on our nation's security, and on the
welfare of the men and women of the Armed Forces and their families. It
is a fair bill. It provides a $4.5 billion increase in defense
spending--consistent with the congressional budget resolution. But, the
real beneficiaries of this legislation are our servicemen and women who
will not only have better tools and equipment to do their jobs, but an
enhanced quality of life for themselves and their families. We must
show our support for these brave men and women all of whom make great
sacrifices for our country and many of whom are in harm's way on a
daily basis by passing this important legislation.
I am privileged to have been associated with the Senate Armed
Services Committee and the development of a defense authorization bill
every year of my modest career here in the Senate--a career quickly
approaching 22 years. The Senate has passed a defense authorization
bill each and everyone of those years. In fact, the Senate has passed a
defense authorization bill each year since 1961--since the beginning of
the current authorization process. This year, the House passed its
version of the defense authorization bill by an overwhelming vote of
353-63. It is now the Senate's duty to fulfill its responsibilities on
this important legislation.
But our responsibility to consider and pass the annual defense
authorization bill goes beyond statutory requirements and historical
precedent. We must also be aware of the importance of this measure to
our men and women in uniform around the world.
U.S. military forces are involved in overseas deployments at an
unprecedented rate. Currently, our troops are involved in over 10
contingency operations around the globe. Over the past decade, our
active duty manpower has been reduced by nearly a third, active Army
divisions have been reduced by almost 50 percent, and the number of
Navy ships has been reduced from 567 to 316. During this same period,
our troops have been involved in 50 military operations worldwide. By
comparison, from the end of the Vietnam War in 1975 until 1989, U.S.
military forces were engaged in only 20 such military deployments.
In an all-volunteer force, where increasing deployments and
operations challenge the capabilities of our military to effectively
meet those commitments, as well as challenge the efforts of our
military to recruit and retain quality military personnel, we must
embrace every opportunity to demonstrate our commitment to our military
personnel. The National Defense Authorization Bill for Fiscal Year 2001
sends this important message.

Mr. President, I would like to take a moment to make my colleagues
well aware of the impact of NOT passing The National Defense
Authorization Bill for Fiscal Year 2001.
With respect to personnel policy, the committee included legislation
in the defense authorization bill for fiscal year 2001 to continue to
support initiatives to address critical recruiting and retention
shortfalls. In this regard, the committee increased compensation

[[Page S5333]]

benefits and focused on improving military health care for our active
duty and retired personnel and their families.
Without this bill, there will be:
No extension of TRICARE benefits to active duty family members in
remote locations;
No elimination of health care co-pays for active duty family members
in TRICARE Prime;
No Thrift Savings Plan for military personnel;
No stipend for military families to eliminate their need to rely on
food stamps McCain amendment);
No five year pilot program to permit the Army to test several
innovative approaches to recruiting; and
No transit pass benefit for Defense Department commuters in the
Washington area.
Without this bill, almost every bonus and special pay incentive
designed to recruit and retain service members will expire December 31,
2000, including:
Special pay for health professionals in critically short wartime
specialities;
Special pay for nuclear-qualified officers who extend their service
commitment;
Aviation officer retention bonus;
Nuclear accession bonus;
Nuclear career annual incentive bonus;
Selected Reserve enlistment bonus;
Selected Reserve re-enlistment bonus;
Special pay for service members assigned to high priority reserve
units;
Selected Reserve affiliation bonus;
Ready Reserve enlistment and re-enlistment bonuses;
Loan repayment program for health professionals who serve in the
Selected Reserve;
Nurse officer candidate accession program;
Accession bonus for registered nurses;
Incentive pay for nurse anesthetists;
Re-enlistment bonus for active duty personnel;
Enlistment bonus for critical active duty specialities; and
Army enlistment bonuses and the extension of this bonus to the other
services.
And, Mr. President, without this bill, the Congress will not meet
it's commitment to our miliary retirees and their families to provide a
comprehensive lifetime health care benefit, including full pharmacy
services. Without this bill, military health care system benefits will
continue to be denied to retirees and their dependents who reach age 65
and become Medicare eligible. Military beneficiaries will lose the
earned military health care benefit that this bill finally restores to
them.

The committee has carefully studied the recruiting and retention
problems in our military. We have worked hard to develop this package
to increase compensation and benefits. We believe it will go a long way
to recruit new servicemembers and to provide the necessary incentives
to retain mid-career personnel who are critical to the force.
Mr. President, on many occasions I have shared my concerns about the
threats posed to our military personnel and our citizens, both at home
and abroad, by weapons of mass destruction: chemical, biological,
radiological and cyber warfare. Whether these weapons are used on the
battlefield or by a terrorist within the United States, we, as a
nation, must be prepared.
Without this bill, efforts by the committee to continue to ensure
that the DOD is adequately funded and structured to deter and defeat
the efforts of those intent on using weapons of mass destruction or
mass disruption would not be implemented. Efforts that would not go
forward without this bill include:
Establishing a single point of contact for overall policy and
budgeting oversight of the DOD activities for combating terrorism;
Fully deploying 32 WMD-CST (formerly RAID) teams by the end of fiscal
year 2001;
Establishing an Information Security Scholarship Program to encourage
the recruitment and retention of Department of Defense personnel with
computer and network security skills; and
Creating an Institute for Defense Computer Security and Information
Protection to conduct research and critical technology development and
to facilitate the exchange of information between the government and
the private sector.
Mr. President, I would like to briefly highlight some of the other
major initiatives in this bill that would be at risk without the
defense authorization bill:
Without this bill, multi-year, cost-saving spending authority for the
Bradley Fighting Vehicle and UH-60 ``Blackhawk'' helicopter would
cease.
Without this bill, there would not be a block buy for Virginia Class
submarines. Without the block buy, there would be fewer opportunities
to save taxpayer dollars by buying components--in a cost-effective
manner--for the submarines.
All military construction projects require both authorization as well
as appropriations. Without this bill, over 360 military construction
projects and 25 housing projects involving hundreds of critical family
housing units would not be started.
The Military Housing Privatization Initiative would expire in
February 2001. Without this bill, the program would not be extended for
an additional three years, as planned. The military services would not
be able to privatize thousands of housing units and correct a serious
housing shortage within the Department of Defense.
Mr. President, it has been said that, ``Example is the best General
Order.'' The Senate needs to take charge, move out, and pass the
National Defense Authorization Bill for Fiscal Year 2001. This
legislation is important to the nation and to demonstrate to the men
and women in uniform, their families and those who have gone before
them, our current and continuing support and commitment to them on
behalf of a grateful nation.

Military Installations

Mr. COVERDELL. First, I would like to thank Senator Warner and
Senator Levin for their continued leadership on the Senate Armed
Services Committee. Your efforts have helped reverse fourteen
consecutive years of real decline in defense spending--a decline that
has affected all aspects of our military, from morale to readiness. Our
troops and our Nation are grateful for your leadership in stopping this
decline.
I would like to take a moment to engage the chairman in a colloquy on
one particular area within this bill--military construction.
Mr. WARNER. I thank the Senator for his kind words and would be glad
to indulge him in a colloquy on this subject.
Mr. COVERDELL. Of course, we are all appreciative of what the
committee has done for our bases across the Nation. As the chairman
knows, Georgia has a proud military tradition. Currently it is home to
thirteen military installations representing all branches of our
military and housing some of our armed service's most vital missions.
As is the case at military installations across the country most of the
bases in Georgia are in need of new infrastructure.
Through my travels to Georgia's bases, I was struck in particular
with the condition of the buildings at Fort Stewart in Hinesville,
Georgia, home of the 3rd Infantry Division. As the chairman and ranking
member know, the 3rd I.D. is the heavy division of the Army's
Contingency Corps. It is ready to go at a moment's notice and is part
of our Army's ``tip of the spear'' force.
Despite this crucial mission, it is my understanding that Fort
Stewart is the only major FORSCOM installation that still performs
corps functions in World War II wooden buildings.
Mr. WARNER. The Senator is correct.
Mr. COVERDELL. It is clear to me that Fort Stewart needs more
military construction dollars. However, I also understand that the
committee and the Pentagon have certain parameters within they work to
determine military construction dollars. I understand that one of the
reasons Fort Stewart is not gaining authorization for military
construction projects is that the projects I requested were not in the
Pentagon's FYDP and that the committee uses the FYDP as its guide for
authorizing military construction dollars. Is that correct?
Mr. WARNER. The Senator from Georgia is correct. We see many projects
that need funding. However, in distributing scarce resources we must
work with the Pentagon's priorities. While base commanders may have
different views of what their bases need, if those priorities do not
correspond with the Pentagon's priorities then it is different for us
to assess the military value of the various projects.
Mr. COVERDELL. I thank the chairman. I have relayed similar views to

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Fort Stewart and will work with our other Georgia bases to ensure that
they understand this process. I would like to ask the chairman how the
committee views the situation at Fort Stewart.
Mr. WARNER. We agree that Fort Stewart needs new construction dollars
and worked very hard this year to do what we could to help. We are
committed to Fort Stewart's future and look forward to working with
you, the base and the Pentagon to help it in the future.
Mr. COVERDELL. I thank the chairman for his remarks and look forward
to working with him on this matter in the future.
Mr. CLELAND. I would like to join my distinguished colleague, the
senior Senator from Georgia, Senator Coverdell, in highlighting the
critical needs of Fort Stewart in Georgia. I would also like to note my
appreciation for the remarks of Chairman Warner and his recognition of
Fort Stewart.
I too would like to highlight the importance of Fort Stewart. Since
its birth in 1940, Fort Stewart has seen a flurry of activity. Its
original mission began as an anti-aircraft artillery training center
and later evolved into a helicopter training facility, and is now home
to 3rd Infantry Division. Fort Stewart has shown its importance during
the Korean war, Vietnam war, the Persian Gulf war, and even during the
Cuban missile crisis. Through the years, Fort Stewart has adapted to
the changing landscape of our military missions. Despite this glorious
history, Fort Stewart needs our attention. Fort Stewart has important
military construction needs to provide the critical infrastructure to
fulfill its mission. It is my hope that through increased attention
from the Department of the Army, the Pentagon, and the Congress, Fort
Stewart's needs can be addressed. I thank my colleagues for engaging in
this colloquy regarding such a vital facility.

Amendment No. 3473

(Purpose: To enhance Federal enforcement of hate crimes and for other
purposes)

Mr. LEVIN. Madam President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Michigan (Mr. Levin), for himself and
Senator Kennedy, proposes an amendment numbered 3473.

Mr. LEVIN. Madam President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The text of the amendment is printed in today's Record under
``Amendments Submitted.'')
Mr. LEVIN. Madam President, the Kennedy proposal has two major
provisions. First, it strengthens current law as it relates to hate
crimes based on race, religion and nation origin. Second, it broadens
the definition of hate crimes to include gender, sexual orientation,
and disability.
The two major provisions in the Kennedy amendment address specific
loopholes in our current federal civil rights statute. Under current
law, the federal government is limited in its ability to intervene in
case unless it can be proved that the victim was engaged in one of six
narrowly defined ``federally protected activities,'' such as enrolling
in a public school, participating in a state or local program or
activity, applying for or enjoying employment, serving as a juror,
traveling in or using interstate commerce, and enjoying certain places
of public accommodation.
The other unduly severe limitation under current law is this: federal
prosecution is limited to those crimes motivated by race, color,
religion and national origin and does not allow for federal
intervention in crimes motivated by a person's sexual orientation,
gender, or disability.
The Senate has the ability and the responsibility to pass the Kennedy
amendment and send a clear message that America is an all-inclusive
nation--one that does not tolerate acts of violence based on bigotry
and discrimination.
Hate crimes are a special threat in a society founded on ``liberty
and justice for all.'' Too many acts of violence and bigotry in the
last years have put our nation's commitment to diversity in jeopardy.
When Matthew Shepard, a gay student was severely beaten and left for
dead or James Byrd, Jr. was dragged to death behind a pick-up truck, it
was not only destructive for the victims and their families, but
damaging to the victims' communities, and to our American ideals.
When a member of the Aryan Nations walked into a Jewish Community
Center day school and fired more than 70 rounds from his Uzi submachine
gun, then killed a Filipino-American federal worker because he was
considered a ``target of opportunity,'' it not only affected the
families of the victims but all those who share the traits of the
targeted individuals.
In a united voice, we must not only condemn these acts of violence
that terrorize Americans every day, but act against them. America's
agenda will remain unfinished so long as incidents like those occur and
statistics like the following threaten our people. According to the FBI
Uniform Crime Reports, at least one hate crime occurs each hour. These
are often acts of violence, not threats, verbal-abuse or hate speech,
but criminal offenses.
In 1998, there were 7,755 incidents involving 9,722 victims. Of those
incidents, approximately 56 percent were motivated by racial bias; 18
percent by religious bias; 16 percent by sexual-orientation bias; and
the remainder by ethnicity/national origin bias, disability and
multiple biases, and prejudices and hate.
In my own home state of Michigan, according to the State Police,
there were 578 hate crimes in the same year. According to Donald Cohen,
director of Michigan's Anti-Defamation League, racist, anti-gay and
anti-Semitic activity is on the rise. In October of 1998, Cohen, who
monitors hate crimes for his organization said ``I can say I have seen
more hate-group material circulated . . . in the last few months than I
have seen in the prior two years.''
As a result, civil rights and law enforcement officials, who were
concerned about the rise of hate crimes in Michigan moved to counter
them by founding the Michigan Alliance Against Hate Crimes. The
Alliance is a statewide coalition working to provide support to victims
of hate crimes and to identify, combat and eliminate such crimes.
The group was already in place last September, when this crime was
committed in Grand Rapids, Michigan: a 30-year-old white man, Charles
Raab, beat unconscious an African-American man, Willie Jarrett, ran him
over with a car three times and dragged him with the car for 80 feet,
before he dislodged the victim and fled the scene. Witnesses said that
during the scene, the attacker used racial slurs to describe his
victim--who suffered wounds to his back, hands, chest, and shoulders,
and had half of his ear torn off.
The Michigan Alliance Against Hate Crimes immediately assembled a
``rapid response team'' and worked with the local prosecutor to charge
Raab, the attacker, under the Ethnic Intimidation Act--Michigan's hate
crime law. In the end, Raab pleaded guilty to the charges against him
and was sentenced to seven to twenty-five years in prison for the
attack.
The city of Grand Rapids, along with the Michigan Alliance Against
Hate Crimes, made sure that the perpetrator of this heinous hate crime
was prosecuted to the extent of the law. Unfortunately, not all hate
crimes are prosecuted so successfully. There are several states without
such Alliances and hate crimes are not prosecuted with success either
because state or local authorities do not have adequate resources or
personnel; state and local authorities aren't as incensed as they
should be or decline to act for other reasons.
In some cases, state or local authorities simply don't have
jurisdiction to prosecute hate crime cases: 42 states have hate crime
statutes but only 21 cover sexual orientation and disability and 22
cover gender. Michigan's Ethnic Intimidation Act, for example, is
limited to crimes incited by a person's race, color, religion, gender
or national origin, and does not include crimes motivated by a person's
sexual orientation or disability.
The FBI Statistics show that the number of reported hate crimes based
on sexual orientation is third only to those based on racial bias and
religious bias.
My home state of Michigan has had its share of hate crimes based on
sexual

[[Page S5335]]

orientation. Last summer, an 18-year-old boy leaving a gay nightclub in
Grand Rapids, Michigan was met by an attacker who was waiting outside
the club in a car. The assailant jumped the young man and slashed his
face with a razor blade hospitalizing him for over a week. His face is
permanently scarred.
A few weeks ago in Detroit, a gay man was buying cigarettes at a gas
station late at night and a car full of men pulled up, accosted him and
asked if he was gay. When he just walked away the men became infuriated
and beat him badly, shattering his skull and putting him in a coma for
several days. The assailants have not been arrested.
A gay man driving in Royal Oak, Michigan was allegedly harassed and
intimidated by four other motorists in a nearby car. The assailants
were screaming anti-gay epithets and succeeded in running him off the
road and destroying his car. The assailants then screamed at the man,
spit on him, and kicked in his window.
The police officer investigating the case allegedly asked multiple
questions about the driver's sexual orientation and sexual activity
rather than the details of the accident. The four assailants were never
charged and despite the fact that witnesses and crime specialists
reconstructed the scene as told by the driver, the driver was convicted
of reckless driving. Local media and community leaders were outraged
and called it a miscarriage of justice.
This and other such stories are examples of crimes that not only
affect the fundamental rights of the victim, but deprive that victim of
a sense of security and self worth. These crimes are just as damaging
as those motivated by race or religion, but state authorities are
limited in their ability to respond because Michigan's hate crimes
statute is inadequate.
Congress has the opportunity to take action against these and other
hate crimes, which go unprosecuted at the state level, with the passage
of the Kennedy hate crimes amendment. This amendment would expand the
federal definition of hate crimes to include crime motivated by a
person's sexual orientation, gender or disability adding to the current
list of attacks motivated by race, color, religion or national origin.
The Kennedy amendment would also broaden the federal government's
authority to prosecute any hate crime based on race, color, religion or
national origin. Currently, federal prosecution of hate crimes is
limited and U.S. attorneys have had difficulties prosecuting cases--
that state authorities are unwilling or unable to prosecute--because of
the need to prove that the victim of a hate crime was also targeted
because of his participation in one of six specified federally
protected activities. The statute's severe restrictions has prevented
the federal government from prosecuting perpetrators of some of the
most egregious hate crimes.
For example, in recent years a jury acquitted three white
supremacists who had assaulted African-Americans. After the trial, some
of the jurors revealed that they felt racial animus had been
established but did not believe there was sufficient evidence to show
that the defendants intended to prevent the victims from engaging in a
narrowly defined federally protected activity that the statute had
provided.
The Kennedy amendment will not make every hate crime a federal crime.
Almost all hate crimes will remain the primary responsibility of sate
and local law enforcement agencies. For these cases, broadening federal
authority will permit joint federal-state investigations and may be
useful to state and local authorities who will be able to rely on
investigatory and prosecutorial assiatnce from the Department of
Justice. The Kennedy amendment makes grants of up to $100,000 available
to state and local law enforcement agencies who have incurred
extraordinary expenses associated with investigating and prosecuting
hate crimes.
For the few hate crimes that the Justice Department does act to make
federal crimes, the Department will be required to use its authority
sparingly, as is required with the existing authority to prosecute
crimes motivated by racial or religious hatred. Prior to federally
indicting someone, the Justice Department must certify and there is
reasonable cause to believe that the crime was motivitated by bias and
the U.S. attorney has consulted with the state or local law enforcement
officials and determined one of the following situations is
present, under the Kennedy amendment, to show we are not creating under
this amendment a situation where the Federal Government is going to be
prosecuting every hate crime. There are still restrictions built in
here to rely more heavily on State and local law enforcement. If one of
the following situations is present, then the U.S. attorney, under
certain circumstances at least, would be authorized to proceed:

No. 1, the state does not have jurisdiction or does not intend to
exercise jurisdiction;
No. 2, the state has requested that the federal government assume
jurisdiction;
No. 3, the state does not object to the federal government assuming
jurisdiction;
No. 4, or the state has completed prosecution and the verdict or
sentence obtained under state law left demonstratively unvindicated the
federal interest in eradicating bias-motivated violence.
In addition, for crimes based on the three new categories--gender,
sexual orientation, and disability, and in some instances, for crimes
based on religion and national origin--the Kennedy amendment provides
that the Federal Government must prove an interstate commerce
connection showing that:
No. 1, the defendant or the victim traveled across state lines;
No. 2, the defendant or the victim used a channel, facility, or
instrumentality of commerce;
No. 3, the defendant used a firearm, explosive, incendiary device or
other weapon that has traveled in commerce, or
No. 4, the conduct interferes with commercial or other economic
activity in which the victim is engaged at the time of conduct.
Stated simply, the Kennedy hate crimes amendment will allow for more
effective and just prosecutions of hate crimes. The alternative, the
Hatch proposal, which will be before the Senate, neither addresses the
problems with existing law--that the victim must be engaged in a
narrowly specified federally protected activity; nor does it address
the limited definition of a hate crime--which excludes sexual
orientation, disability, and gender.
More than 175 law enforcement, civil rights, civic and religious
groups as well as 22 State Attorneys General support the Kennedy
amendment, and the role it gives the federal government to prosecute
individuals who have committed violent acts resulting from racist,
anti-Semitic or homophobic motives. This legislation is also supported
by the Justice Department, and is compliant with the recent Supreme
Court decision United States v. Morrison. In a June 13, 2000 letter to
Senator Kennedy, the Justice Department stated clearly that the
amendment ``would be constitutional under governing Supreme Court
precedents''
Passage of this amendment will send the message that we are a country
that treasures equality and tolerance. We will not condone the hate
crimes that have plagued our nation and have had such a devastating
impact on the families of Matthew Shepard, James Byrd, Jr. and too many
others. I hope my colleagues will support the Kennedy amendment. This
amendment will bring us closer to the time when all Americans have
equal opportunities, and perpetrators of hate crimes receive swift and
vigorous prosecution.
I believe there is a unanimous consent order relative to the next
speaker, but before the Senator from Minnesota speaks, I see the
Senator from Oregon on the floor and I want to express my gratitude to
him for the article that was in this morning's paper. It was an
extremely beautifully written, heartfelt article. I hope every Member
of this body has an opportunity to read it. I know the Senator from
Oregon is too modest to do so. Therefore, I ask unanimous consent that
article be printed in the Record.
There being no objection, the article was ordered to be printed in
the Record, as follows:

[From the Washington Post, June 19, 2000]

Nationally: Why Hate Crimes Are Different

(By Gordon H. Smith)

On June 7, 1998, James Byrd Jr. was dragged to death along
a dusty Texas road. On Oct. 12, 1998, Matthew Shepard was
beaten and left to die on a lonely Wyoming fence.

[[Page S5336]]

They were murdered not for their property, but for who they
were--one black, the other gay.
Their brutal murders shocked the nation and spurred a
national debate over what can be done to prevent further hate
crimes and to ensure that perpetrators of such crimes are
brought to justice.
The Senate soon will consider the Hate Crimes Prevention
Act of 2000. This act would authorize federal law enforcement
officers to aid and assist state and local police in the
pursuit and prosecution of hate crimes--even if state lines
have not been crossed.
The act is controversial. Some believe that all crime is
hateful, and that by providing federal resources for hate
crimes we would be telling the victims of crimes committed
for other motives that they are not as important. I believe,
however, that hate crimes are different. While perpetrated
upon an individual, the violence is directed at a community.
The most controversial element in this legislation is that
in addition to categories of race, religion, gender and
disability, it contains a category for sexual orientation.
Many in the Senate will oppose the legislation because they
feel that to legislate protections for gays and lesbians is
to legitimize homosexuality.
I once shared that feeling, but no longer. One needn't
agree with all the goals of the gay community to help it
achieve fair treatment within our society. It is possible,
for example, to oppose gay marriage on religious and policy
grounds but to protect gays and lesbians against violence on
the same grounds. There is a biblical example and a present
duty to protect anyone in the public square who would be
stoned by the sanctimonious or the politically powerful.
As a member of the Senate Foreign Relations Committee, I
have spoken against hate crimes of many kinds and in many
lands. For that reason, I cannot be silent at home. I cannot
forget the testimony given at a recent hearing by Elie
Wiesel:
``To hate is to deny the other person's humanity. It is to
see in `the other' a reason to inspire not pride but disdain,
not solidarity, but exclusion. It is to choose simplistic
phraseology instead of ideas. It is to allow its carrier to
feel stronger than `the other,' and thus superior to `the
other.' The hater . . . is vain, arrogant. He believes that
he alone possesses the key to truth and justice. He alone has
God's ear.''
I often have told those who attempt to wield the sword of
morality against others that if they want to talk about sin,
go with me to church, but if they want to talk about policy,
go with me to the Senate. That is the separation of church
and state.
At times, the law can and should be a teacher--and this is
one of them. Yes, in many ways, passage of the Hate Crimes
Prevention Act would be nothing more than a symbol. But it is
a symbol that can be filled with substance by changing hearts
and minds and by better protecting all our citizens, be they
disabled, female, black or gay. They are Americans all.

The PRESIDING OFFICER. Under the previous order, the Senator from
Minnesota is to be recognized.
Mr. WELLSTONE. Madam President, I say to my colleague, I will be very
brief on this amendment. I will try to take less than 10 minutes
because Senator Smith has taken a major leadership role. I know Senator
Hatch will be speaking, and I am sure my colleague from Oregon will
want to be here for that debate. The only reason I am taking this time
right now is I won't be able to stay beyond the next 10 or 15 minutes.
I will be brief. Then the country will have a chance to hear from the
Senator from Oregon. I have not read the piece, but I thank the Senator
very much for his leadership.
I am not a lawyer, but I want to try to briefly summarize what this
bill is about. Senator Levin always does a more masterful job of that
than I can. Then I will talk about why I think this piece of
legislation is so important for Minnesota and people in the country.
When it comes to hate crimes based on race, religion, or national
origin, this legislation essentially moves beyond the very restrictive
language we have right now where we can't prosecute people who have
committed violent crimes against someone unless that person was
involved in some kind of federally protected activity. That is way too
narrow a definition. We want to be in a position as a nation where the
Federal Government can prosecute, for example, those who murdered James
Byrd. It is that simple.
We don't want to have such narrowly restrictive laws and language--
and this is where the amendment of the Senator from Utah doesn't do us
any good at all--we don't want to have such a narrow definition that we
can't prosecute people when they murder a James Byrd. I think it is
that simple.
Secondly, we further define the hate crime legislation applied to
gender, disability, and sexual orientation when there is an interstate
commerce nexus. And in this particular case what we want to make sure
of is that as a national community, as the Senate, as the House of
Representatives, we care deeply when a Matthew Shepard is murdered,
and, indeed, the Federal Government can play a role, and those who
commit such a murder because of someone's sexual orientation will be
prosecuted, that they will pay the price.
I know there have been some arguments made against this legislation.
I am sure my colleague from Oregon will take up those arguments and
deal with them in more depth, but as to the argument that somehow this
takes on freedom of speech, we are not talking about freedom of speech.
We are not talking about somebody in the pulpit saying whatever they
want to say about people because of their sexual orientation, as much
as I would be in disagreement with what I think would be prejudice or,
I would argue, ignorance. But we are talking about an action; we are
talking about when there is an act of violence perpetrated against
someone because of their sexual orientation. I am not talking about
speech. I am talking about violent action.
I believe strongly in this amendment and am proud to support it
because I think hate crimes are very special. I came to the human
rights rally in Washington, DC--it seems as though it was yesterday;
maybe it was a couple months ago--I wanted to speak, and I had an
opportunity to introduce Judy and Dennis Shepard. That was, for me, a
much greater honor than actually giving a long speech or speaking at
all. I wanted to introduce them. I have seen them at so many gatherings
where they have been willing, as the parents of Matthew Shepard, who
was murdered because of his sexual orientation, to go around the
country and support other people and speak out and try to do everything
they can in memory of their son, to make sure that this never happens
again. I guess we cannot make sure it never happens again, but we can
do everything possible to make sure that it never happens again.
That is what this hate crimes amendment is all about--basically, what
happens when there is an act of violence against someone because of the
color of their skin or their religion. I am sensitive to this. My
father was a Jewish immigrant born in the Ukraine, lived in Russia,
fled persecution, and came to the United States of America because of
religious persecution. When you have this kind of violence against
someone because of their religion or their national origin or their
gender or their disability or their race or their sexual orientation,
it is terrorism because what you are saying to a whole lot of other
people is it could happen to you, too. That is the purpose of a lot of
these crimes. You are saying to other people who are gay and lesbian,
you are saying to other people because of their religion, sometimes you
are saying to other people because they are white--not that long ago I
think it was in Pittsburgh we saw people murdered just because of the
color of their skin; they were white--what you are saying with these
kinds of hate crimes is: other people, you could be next.
What you are doing is you are creating a whole second class of
citizens who have to live their lives in terror. What you are doing is
dehumanizing people. That is what these hate crimes are about.
Now, we should have a high threshold--I am not a lawyer, but we
should have a high threshold. We want to make sure that truly these are
hate crimes. And believe me, that will have to be proven in our court
system. But, colleagues, in all due respect, you have an amendment here
that does a good job of getting beyond the very narrow definition so
that, indeed, we have a definition of a hate crime that applies to the
murder of a James Byrd; we have a definition of a hate crime that
applies to the murder of a Matthew Shepard, and I don't know how
Senators can vote against it. It is long past time that we passed such
a law. We must and I hope we will.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. SMITH of OREGON. Madam President, I wish to say what is in my
heart and why I as a Republican stand here in support of a Kennedy
amendment on hate crimes.

[[Page S5337]]

On June 7, 1998, when James Byrd, Jr., was dragged to death on a
dusty Texas road, something happened to me. I was horrified beyond my
ability to express it.
On October 12, 1998, when Matthew Shepard was beaten to death on a
Wyoming prairie, hung to a fence to die, something happened to me. I,
again, had no ability to express the outrage and horror that I felt of
such conduct and wondered: What is it in the heart of humankind that
could perpetrate such an action upon a fellow human being?
These were people who were murdered not for their property. They were
murdered because of who they were. One was a black man and the other
was a gay man. I think much of America felt the shock and revulsion
that I did. Many of us began to look around and ask: What can I do in
my sphere of influence? How can I help to see that this never happens
again in my country?
So I was attracted to the whole issue of hate crimes. This is a very
controversial thing with many Senators. It is controversial because,
frankly, of one clause. It is controversial because it includes a new
category: ``. . . or sexual orientation.'' And many of my friends in
the Senate believe that disqualifies it from consideration. But it
seems to me that our duty as public officials is to help Americans help
human beings however we find them; no matter what we may believe their
sins are because all of us are sinful.
Many will say that to legislate favorably towards a gay man is to
legitimize homosexuality for our society. I used to have that feeling
myself, but I do not any longer. I truly believe it is possible to
object to a gay marriage and yet come to the defense of a gay person
when it comes to violence. And I believe we have a duty to show up to
work in the Federal Government when it comes to the issue of hate
crimes. Some people believe that, well, all crime is hateful; don't
designate some types of crime. But I tell you that I have come to
realize that hate crimes are different in this respect. Hate crimes are
visited upon one person, but they are really directed at an entire
community--in one case, a black man in the African American community,
and in the other case, a gay man in the gay and lesbian community. We
need to help, and I believe the Kennedy amendment actually helps.

Some see this as controversial because they will stand behind the
argument of States rights; that we cannot defend these people at the
Federal level because there are State officials and local officials
where most police actions and prosecutions occur; that we should leave
that to them. I had that feeling until I was visited by a group of
conservative Republican law enforcement officers from Wyoming who said,
in the case of Matthew Shepard: It would have helped a great deal had
the Federal Government shown up with resources and support to help in
the prosecution of this horrible tragedy.
The Kennedy amendment allows this to happen, and I support it for
that reason, because I believe we need to show up to work.
As a member of the Foreign Relations Committee, I have spoken all
over the globe against hate crimes of all kinds. Because of that, I
cannot in good conscience remain silent about hate crimes in my own
country. It is time to speak out, and it is time to vote on something
that will actually make a difference.
In my Subcommittee on European Affairs, I recently held a hearing on
the issue of antisemitism. One of the most remarkable witnesses I have
ever listened to in the Senate came to testify in that hearing. He is
the Nobel Laureate Elie Wiesel. I will never forget what he said to our
committee that day. He said:

To hate is to deny the other person's humanity. It is to
see in ``the other'' a reason to inspire not pride, but
disdain; not solidarity, but exclusion. It is to choose
simplistic phraseology instead of ideas. It is to allow its
carrier to feel stronger than ``the other,'' and thus
superior to ``the other.'' The hater . . . is vain, arrogant.
He believes that he alone possesses the key to truth and
justice. He alone has God's ear.

I am afraid there are some like that not just in Nazi Germany about
which he was speaking, there are some like that today in Bosnia, in
Yugoslavia, Kosovo, in Africa. There are haters still, and there are
haters in our own country as well. We are trying to say, once and for
all, that when it comes to hate and hate crimes that are directed at
these minority communities who live among us as Americans: Your Federal
Government cares, too. The Federal Government will show up to work. The
Federal Government will try to use the law as well to teach the
American people that there is no room for hate, and if you commit a
hate crime, we will come after you with the full force of the law at
the local, the State, and the Federal level, because while many will
say this is just symbolism, I grant you it is in part, but it is
symbolism that can be made substance if we change some hearts and
minds. In that sense, the law can be a teacher.
That is why I support the Kennedy amendment, because I think we need
to change some hearts and minds, as well as some laws, so that the
Federal Government can show up to work.
I am going to do something I do not suppose is commonly done here,
but I want to speak using a Scripture. I do this because I need to
reach out, not to change the minds necessarily of some in my own
political base who are the conservative Christians. They are my
friends, and many of their views are views I hold. But on this issue, I
believe we can care enough to change some hearts and minds. I believe
that the God of Christianity, the God whom I worship, said on this
Earth that by this shall all men know that ye are my disciples--if you
have love one for another. He showed that in a remarkable episode, and
I want to share it. I share it with my friends in the Christian
community because we need to remember this story when we think somehow
that we should not help a community because of what we think their sins
may be.

This is the story. It comes from the 8th Chapter of John:

Jesus went unto the mount of Olives.
And early in the morning he came again into the temple, and
all the people came unto him; and he sat down, and taught
them.
And the scribes and Pharisees brought unto him a woman
taken in adultery; and when they had set her in the midst,
They say unto him, Master, this woman was taken in
adultery, in the very act.
Now Moses in the law commanded us, that such should be
stoned: but what sayest thou?
This they said, tempting him, that they might have to
accuse him. But Jesus stooped down, and with his finger wrote
on the ground, as though he heard them not.
So when they continued asking him, he lifted up himself,
and said unto them, He that is without sin among you, let him
first cast a stone at her.
And again he stooped down, and wrote on the ground.
And they which heard it, being convicted by their own
conscience, went out one by one, beginning at the eldest,
even unto the last: and Jesus was left alone, and the woman
standing in the midst.
When Jesus had lifted up himself, and saw none but the
woman, he said unto her, Woman, where are those thine
accusers? hath no man condemned thee?
She said, No man, Lord. And Jesus said unto her, Neither do
I condemn thee: go, and sin no more.

This happened in a public square. This was a wonderful example of
mercy and compassion. It was a wonderful occasion in which, in my view,
the greatest of all stood up against violence, violence that was later
visited upon Him with hatred.
I point out that if you care about the American family and you
perceive homosexuality as a threat to that family institution, remember
that adultery, if you want to talk about sins, is a far greater threat
to the American family than homosexuality.
What I say to fellow Christians everywhere is, it is time to help. It
is time to remember a story and an example. It is time to say to the
gay community: I do not agree with you on everything, but I can help
you on many things. And particularly when it comes to violence,
particularly when it comes to dragging a man to death, particularly
when it comes to seeing someone beaten to death on a fence, I would be
ashamed if we did not act as the Federal Government to say: We can show
up to work, we can help, we can teach, we can change hearts and minds,
and we can turn the symbolism into substance by letting Federal
authorities bring resources and help make a difference.
I know I may not be in large numbers on my side of the aisle, but I
hope they will consider what I have just said. All of the excuses that
will be offered today--are we prosecuting people for their thoughts?
No, we are prosecuting people for their actions that kill people.

[[Page S5338]]

Some will say: There are limitations in the bill so that every hate
crime is not a Federal crime. There are limitations that will trigger
the Federal response. We will defer to the States.
Some will say: What business is it of ours to put hate crimes on the
Defense authorization bill? Some of the most horrible hate crimes I
have read about have occurred within the military. It is our business
to put it here if that is what it takes to pass it here.
Some will say: Isn't every act of domestic violence or rape a hate
crime? I say, it may well be. It may trigger Federal involvement. But
just because it includes sexual orientation does not make those victims
less American.
Some will say: The Kennedy amendment is not constitutional. I believe
it is constitutional. I believe it is OK to say we will help
Americans--how we find them--whether they are black, whether they are
disabled, or whether they are gay.
So my remarks today, Madam President, are about having a bigger heart
and making the Federal law big enough to include communities that are
the most vulnerable among us.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. Under the previous order, the hour of 4
o'clock having arrived, the Senator from Utah is recognized to offer
his amendment.

Amendment No. 3474

(Purpose: To authorize a comprehensive study and to provide assistance
to State and local law enforcement)

Mr. HATCH. Madam President, our Nation's recent history has been
marred by some horrific crimes committed because the victim was a
member of a particular class or group. The beating death of Matthew
Shepard in Laramie, WY, and then the dragging death of James Byrd, Jr.
in Jasper TX. These two spring readily to mind. I firmly believe that
such hate-motivated violence is to be abhorred and that the Senate must
raise its voice and lead on this issue.
During the last 30 years, Congress has been the engine of progress in
protecting civil rights and in driving us as a society increasingly
closer to the goal of equal rights for all under the law.
Historians will conclude, I have little doubt, that many of America's
greatest strides in civil rights progress took place just before this
present moment on history's grand timeline: Congress protected
Americans from employment discrimination on the basis of race, sex,
color, religion and national origin with the passage of the Civil
Rights Act of 1964; Congress protected Americans from gender-based
discrimination in rates of pay for equal work with the Equal Pay Act of
1963, and from age discrimination with the passage of the Age
Discrimination in Employment Act of 1967; Congress extended protections
to immigration status with the Immigration Reform and Control Act in
1986, and to the disabled with the passage of the Americans with
Disabilities Act in 1990. And the list goes on and on.
Yet despite our best efforts, discrimination continues to persist in
so many forms in this country, but most sadly in the rudimentary and
malicious form of violence against individuals because of their
membership in a particular class or group. Let me state, unequivocally,
that this is America's fight. As much as we condemn all crime, crimes
manifesting an animus for someone's race, religion or other
characteristics can be more sinister than other crimes.
A crime committed not just to harm an individual, but out of the
motive of sending a message of malice to an entire community--
oftentimes a community that has historically been the subject of
discrimination--is appropriately punished more harshly, or in a
different manner, than other crimes.
This is in keeping with the longstanding principle of criminal
justice--as recognized by the Supreme Court in its unanimous 1993
decision in Wisconsin versus Mitchell upholding Wisconsin's sentencing
enhancement for crimes of animus--that the worse a criminal defendant's
motive, the worse the crime.
Moreover, crimes of animus are more likely to provoke retaliatory
crimes; they inflict deep, lasting and distinct injuries--some of which
never heal--on victims and their family members; they incite community
unrest; and, ultimately, they are downright un-American.
The melting pot of America is the most successful multiethnic,
multiracial, and multifaith country in all recorded history. This is
something to ponder as we consider the atrocities so routinely
sanctioned in other countries--like Serbia or Rwanda--committed against
persons entirely on the basis of their racial, ethnic or religious
identity.

I am resolute in my view that the Federal Government can play a
valuable role in responding to crimes of malice and hate. One example
here is my sponsorship of the Hate Crime Statistics Act of 1990, a law
which instituted a data collection system to assess the extent of hate
crime activity, and which now has thousands of voluntary law
enforcement agency participants.
Another, more recent example, is the passage in 1996 of the Church
Arson Protection Act, which, among other things, criminalized the
destruction of any church, synagogue, mosque or other place of
religious worship because of the race, color, or ethnic characteristics
of an individual associated with that property.
To be sure, however, any Federal response--to be a meaningful one--
must abide by the constitutional limitations imposed on Congress, and
be cognizant of the limitations on Congress's enumerated powers that
are routinely enforced by the courts.
This is more true today than it would have been even a mere decade
ago, given the significant revival by the U.S. Supreme Court of the
federalism doctrine in a string of decisions beginning in 1992. Those
decisions must make us particularly vigilant in respecting the courts'
restrictions on Congress's powers to legislate under section 5 of the
14th amendment, and under the commerce clause.
We therefore need to arrive at a Federal response to this matter that
is not only as effective as possible, but that carefully navigates the
rocky shoals of these court decisions. To that end, I have prepared an
approach that I believe will be not only an effective one, but one that
would avoid altogether the constitutional risks that attach to other
possible Federal Responses that have been raised.
Indeed, Deputy Attorney General Eric Holder testified before the
Senate Judiciary Committee that States and localities should continue
to be responsible for prosecuting the overwhelming majority of hate
crimes, and that no legislation is worthwhile if it is invalidated as
unconstitutional. This is worth repeating. Deputy Attorney General Eric
Holder testified before the Senate Judiciary Committee that States and
localities should continue to be responsible for prosecuting the
overwhelming majority of hate crimes, and that no legislation is
worthwhile if it is invalidated as unconstitutional.
There are two principal components to my approach:
First my amendment creates a meaningful partnership between the
Federal Government and the States in combating hate crime by
establishing within the Justice Department a grant program to assist
State and local authorities in investigating and prosecuting hate
crimes.
Much of the cited justification given by those who advocate broad
Federal jurisdiction over these hate-motivated crimes is a lack of
adequate resources at the State and local level. Accordingly, before we
take the step of making a Federal offense of every crime motivated by a
hatred of someone's membership in a particular class or group, it is
imperative that we equip States and localities with the resources
necessary so that they can undertake these criminal investigations and
prosecutions on their own.
Second, my approach undertakes a comprehensive analysis of the raw
data that has been collected pursuant to the 28 U.S.C. 534, the law
requiring the collection of data on these crimes--a bill that I worked
very hard to pass. The Federal Government has been collecting this data
for years, but we have yet to analyze it. A comparison of the records
of different jurisdictions--some with hate crimes, others without--to
determine whether there is, in fact, a problem in certain States'
prosecution of hate crimes also is provided for in my amendment.
Before we make all hate crimes Federal offenses, I believe we should
provide assistance to the States and analyze whether our assumptions
about

[[Page S5339]]

what the States are doing, or are not doing, are valid.
It is no answer for the Senate to sit by silently while these crimes
are being committed. The ugly, bigoted, and violent underside of some
in our country that is reflected by the commission of hate crimes must
be combated at all levels of government.
For supporters of the Kennedy amendment, Federal leadership
necessitates Federal control. I do not subscribe to this view,
especially when it comes to this problem. Thus, I oppose Senator
Kennedy's amendment. It proposes that to combat hate crimes Congress
should enact a new tier of far-reaching Federal criminal legislation.
That approach strays from the foundations of our constitutional
structure--namely, the first principles of federalism that for more
than two centuries have vested States with primary responsibility for
prosecuting crimes committed within their boundaries.
As important as this issue is, there is little evidence that a broad
federalization of hate crimes is warranted. Indeed, it may be that
national enforcement of hate crimes could decrease if States are told
the Federal Government has assumed primary responsibility over hate
crime enforcement.
In addition, serious constitutional questions exist regarding the
Kennedy hate crimes amendment. First, the Kennedy amendment, if
adopted, would not be a valid exercise of congressional authority under
section 5 of the 14th amendment. The Supreme Court has made clear in
recent years that legislation enacted by Congress pursuant to section 5
of the 14th amendment may only criminalize action taken by a State.
Just last month, the Supreme Court in the recent United States v.
Morrison case re-emphasized the State-action requirement that limits
Congress' authority to enact legislation under the 14th amendment. The
Court stated:

Foremost among these limitations [on Congressional power]
is the time-honored principle that the Fourteenth Amendment,
by its very terms, prohibits only state action. The principle
has become firmly embedded in our constitutional law that the
action inhibited by the . . . Fourteenth Amendment is only
such action as may fairly be said to be that of the States.
That Amendment erects no shield against merely private
conduct, however, discriminatory or wrongful.

The Kennedy amendment, however, seeks to prohibit private conduct--
crimes of violence committed by private individuals against minorities,
religious practitioners, women, homosexuals, or the disabled. It
therefore is very similar to the provision of the Violence Against
Women Act--a bill I worked very hard to pass, called the Biden-Hatch
Act--that sought to prohibit crimes of violence committed by private
individuals against women. The Supreme Court in Morrison held that that
provision of the Violence Against Women Act was not a valid exercise of
congressional power under section 5 of the 14th amendment.
To be sure, Congress can regulate purely private conduct under its
commerce clause authority. But the Kennedy amendment likely would not
be a valid exercise of congressional authority under the commerce
clause either. The Supreme Court's 1995 decision in United States v.
Lopez, and especially its recent Morrison decision, set forth the scope
of Congress' commerce clause power. The Morrison opinion, in
particular, changed the legal landscape regarding congressional power
in relation to the States. Thus, legislation that was perfectly fine
only 2 months ago now raises serious constitutional questions. The
Kennedy amendment is not consistent with Lopez and Morrison.
Both Lopez and Morrison require that the conduct regulated by
Congress pursuant to its commerce clause power be ``some sort of
economic endeavor.'' The Court has held that a statute that is ``a
criminal statute that by its terms has nothing to do with `commerce' or
any sort of economic enterprise, however broadly one might define those
terms,'' does not meet constitutional muster. Here, the conduct sought
to be regulated--hate crimes--is in no sense economic or commercial,
but instead, by its very terms, is non-economic and criminal in nature,
just like the conduct Congress sought to regulate in the Gun Free
Schools Zones Act and the Violence Against Women Act--statutes that
were held to be unconstitutional in Lopez and Morrison.
In light of the Morrison decision, the Kennedy amendment makes an
effort to require a direct link to interstate commerce before the
Federal government can prosecute a hate crime based on sexual
orientation, gender, or disability. It permits Federal hate crimes
prosecution in four broad circumstances: No. 1, where the hate crime
occurred in relation to interstate travel by the defendant or the
victim; No. 2, where the defendant used a ``channel, facility or
instrumentality'' of interstate commerce to commit the hate crime; No.
3, where the defendant committed the hate crime by using a firearm or
other weapon that has traveled in interstate commerce; and No. 4, where
the hate crime interferes with commercial or economic activity of the
victim. None of these circumstances provides an appropriate interstate
nexus that would make the legislation constitutional.
First, the interstate travel requirement of the Kennedy amendment's
first circumstance where Federal prosecution would be appropriate does
nothing to change the criminal, non-economic nature of the hate crime.
The requirement of the second circumstance, that the defendant commit
the hate crime by using a channel, facility or instrumentality of
interstate commerce, may provide a interstate nexus, but it is unclear
precisely what hate crimes that would encompass: hijacking a plane or
blowing up a rail line in connection with a hate crime?
The third circumstance's requirement that the defendant have used a
weapon that traveled in interstate commerce would blow a hole in the
commerce clause; Congress could then federalize essentially all State
crimes where a firearm or other weapon is used; for example, most
homicides.
Finally, the fourth circumstance's requirement that the victim be
working and that the hate crime interfere with his or her work is
analogous to the reasoning the Court rejected in Morrison; that is,
that violence against women harms our national economy. In the case of
the Kennedy hate crimes amendment, the argument would be that hate
crimes harm our national economy and therefore they have a nexus to
interstate commerce. The Court in Morrison and in Lopez rejected those
``costs of crime'' and ``national productivity'' arguments because
``they would permit Congress to regulate not only all violent crime,
but all activities that might lead to violent crime, regardless of how
tenuously they relate to interstate commerce.'' Finally, the Kennedy
amendment's catch-all provision, that the Federal government may
prosecute a hate crime only if the crime ``otherwise affects interstate
or foreign commerce,'' not only merely restates the constitutional
test, it misstates the constitutional test. To be constitutional, the
conduct must ``substantially affect'' interstate commerce.
In addition to its constitutional problems, the Kennedy amendment has
other deficiencies. The amendment provides that where the hate crime is
a murder, the perpetrator ``shall be imprisoned for any term of years
or for life.'' It does not authorize the death penalty for even the
most heinous hate crimes. Accordingly, the horrific dragging death of
James Byrd, Jr. on a back road in Jasper, TX, for example, under the
Kennedy amendment, would provide only for a life sentence. In the Byrd
case, however, State prosecutors tried the case as a capital case and
obtained death sentences for the defendants. The Kennedy amendment,
then, which purports to provide Federal leadership in the prosecution
of hate crimes, would not even provide for the ultimate sentence
permitted under duly enacted Texas law.
When we asked the Justice Department what type of proof they had that
the States are not doing the job, they promised to provide us evidence.
I haven't seen it yet.
That was quite a while ago. There may be, in the eyes of some, and in
my eyes, a great reason to try to make Senator Kennedy's amendment
constitutional, and that is what I tried to do in my amendment in order
to do something about this if the States are not doing the job. But to
this day, I have not had any information indicating that they are not
doing the job. And in the Byrd case, they certainly have. In the
Shepard case, they certainly have, just to mention a couple of them.
I feel as deeply about hate crimes as Senator Kennedy or anybody else
in

[[Page S5340]]

this Chamber. But I want to abide by the Constitution. I recall Justice
Scalia's admonition that there should be a presumption that Congress
want to enact constitutional legislation, but because of some of the
things we are doing, maybe that presumption is unjustified
Supporters of the Kennedy amendment have claimed that it will create
a partnership with State and local law enforcement. They have
delicately described the legislation as being deferential to State and
local authorities as to when the Justice Department will exercise
jurisdiction over a particular hate crime. This is hogwash. The
amendment does not defer to State or local authorities at all. It would
leave the Justice Department free to insert itself in a local hate
crime prosecution at the beginning, middle or end of the prosecution,
even after the local prosecutor has obtained a guilty verdict. Even if
the Justice Department does not formally insert itself into the
particular case, it nevertheless will be empowered by the legislation
to exert enormous pressure on local prosecutors regarding the manner in
which they handle the case--from charging decisions the plea bargaining
decisions to sentencing decisions. The Kennedy hate crimes amendment,
pure and simple, would expand federal jurisdiction and federalize what
currently are State crimes.
By contrast, my amendment would address the issue of hate crimes in a
responsible, constitutional way--by assisting States and local
authorities in their efforts to investigate and prosecute hate crimes.
It provides for a study of this issue to see if there really are States
and local governments out there who, for whatever reason, are not
investigating and prosecuting hate crimes. And, it would provide
resources to State and local governments that are trying to combat hate
crimes but lack the resources to do so.
In summary, we must lead--but lead responsibly--recognizing that we
live in a country of governments of shared and divided
responsibilities. In confronting a world of prejudice greater than any
of us can now imagine, President Abraham Lincoln said to Congress in
1862 that the ``dogmas of the quiet past'' were ``inadequate to the
stormy present. The occasion is piled high with difficulty, and we must
rise--with the occasion. As our case is new, so we must think anew, and
act anew.''
In that very spirit, I encourage this body to question the dogma that
federal leadership must include federal control, and I encourage this
body to act anew by supporting a proposal that seeks to stem hate-
motivated crime, while at the same time respecting the primacy states
traditionally have enjoyed under our Constitution in prosecuting crimes
committed within their boundaries.
Ultimately, I believe the approach I have set forth is a principled
way to accommodate our twin aims--our well-intentioned desire to
investigate, prosecute, and, hopefully, end these vicious crimes; and
our unequivocal duty to respect the constitutional boundaries governing
any legislative action we take.
My proposal should unite all of us on the one point about which we
should most fervently agree--that the Senate must speak firmly and
meaningfully in denouncing as wrong in all respects those actions we
have increasingly come to know as hate crimes. Our continued progress
in fighting to protect Americans' civil rights demands no less.
Madam President, what the Hatch amendment does in comparison to the
Kennedy amendment--and look, like I say, I feel as deeply about this as
Senator Kennedy does, and I respect him for how he feels, and I also
respect Senator Smith from Oregon and the distinguished Senator from
Illinois. We are all trying to do the same thing, and that is make sure
that hate crimes are prosecuted in our society today. I am very
concerned about it, but I am also concerned about meeting the
requisites of the Constitution as well. I believe my amendment would do
that. I believe it would do it in a far more responsible way than the
way the Kennedy amendment does.
What the Hatch amendment does is provide for a comprehensive study so
we can find out once and for all--we have the Hate Crimes Statistics
Act giving us the statistics; it is something that I helped to do years
ago along with Senator Kennedy. That study would help us to find out
just what is happening in our society and whether or not the State and
local governments are inadequate or incapable or unwilling to
investigate and prosecute hate crimes.
Two, we would provide for an intergovernmental assistance program. We
provide technical, forensic, prosecutorial, or other assistance in the
criminal investigation or the prosecution of crimes that, one,
constitute a crime of violence; two, are a felony under relevant State
law; and three, are motivated by animus against the victim by reason of
the victim's membership in a particular class or group.
My amendment would provide for Federal grants. We authorize the
Attorney General, in cases where special circumstances exist, to make
grants of up to $100,000 to States and local entities to assist in the
investigation and prosecution of hate crimes. We require grant
recipients to certify that the State or local entity lack the resources
necessary to investigate or prosecute such crimes. And, we require that
the Attorney General shall approve or disapprove grant applications
within 10 days of receiving the application. We provide that the
Attorney General shall report to Congress on the effectiveness of the
program and conduct an audit to assure that the grants awarded are used
properly.
What we do not do is we do not create a new Federal crime. We do not
give the Justice Department jurisdiction over crimes that are motivated
because of a person's membership in a particular class or group; that
is, the Hatch amendment does not Federalize crimes motivated because of
a person's race, gender, religion, sexual orientation, or disability.
To enact such a broad federalization of hate-motivated crimes would
raise serious constitutional concerns. In addition, the Kennedy
amendment would federalize all rapes and sexual assaults and, in so
doing, would severely burden Federal law enforcement agencies, Federal
prosecutors, and Federal courts. My amendment does not authorize
Federal interference with State and local investigations and
prosecutions. It is not our job to second-guess the investigation and
prosecution and sentencing decisions of State and local authorities in
cases involving hate crimes. As such, my amendment recognizes the
significant efforts of State and local law enforcement in investigating
and prosecuting all violent crimes, including hate crimes.
In other words, my amendment would provide the analysis, study, and
data to determine whether or not the States are failing or refusing to
combat these horrible crimes. It provides the Government assistance to
be able to help the State and local people do their job in these areas.
Of course, we provide various other kinds of assistance that could be
helpful in this matter.
Madam President, I have taken enough time. Parliamentary inquiry. Is
it time to send the amendment to the desk?
The PRESIDING OFFICER. The Senator can send his amendment to the
desk.
Mr. HATCH. Madam President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Utah [Mr. Hatch] proposes an amendment
numbered 3474.

Mr. HATCH. Madam President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

At the appropriate place, insert the following:

SEC. ____. COMPREHENSIVE STUDY AND SUPPORT FOR CRIMINAL
INVESTIGATIONS AND PROSECUTIONS BY STATE AND
LOCAL LAW ENFORCEMENT OFFICIALS.

(a) Studies.--
(1) Collection of data.--
(A) Definition of relevant offense.--In this paragraph, the
term ``relevant offense'' means a crime described in
subsection (b)(1) of the first section of Public Law 101-275
(28 U.S.C. 534 note) and a crime that manifests evidence of
prejudice based on gender or age.
(B) Collection from cross-section of states.--Not later
than 120 days after the date of enactment of this Act, the
Comptroller General of the United States, in consultation
with the National Governors' Association, shall select 10
jurisdictions with

[[Page S5341]]

laws classifying certain types of offenses as relevant
offenses and 10 jurisdictions without such laws from which to
collect the data described in subparagraph (C) over a 12-
month period.
(C) Data to be collected.--The data described in this
paragraph are--
(i) the number of relevant offenses that are reported and
investigated in the jurisdiction;
(ii) the percentage of relevant offenses that are
prosecuted and the percentage that result in conviction;
(iii) the duration of the sentences imposed for crimes
classified as relevant offenses in the jurisdiction, compared
with the length of sentences imposed for similar crimes
committed in jurisdictions with no laws relating to relevant
offenses; and
(iv) references to and descriptions of the laws under which
the offenders were punished.
(D) Costs.--Participating jurisdictions shall be reimbursed
for the reasonable and necessary costs of compiling data
collected under this paragraph.
(2) Study of relevant offense activity.--
(A) In general.--Not later than 18 months after the date of
enactment of this Act, the Comptroller General of the United
States shall complete a study and submit to Congress a report
that analyzes the data collected under paragraph (1) and
under section 534 of title 28, United States Code, to
determine the extent of relevant offense activity throughout
the United States and the success of State and local
officials in combating that activity.
(B) Identification of trends.--In the study conducted under
subparagraph (A), the Comptroller General of the United
States shall identify any trends in the commission of
relevant offenses specifically by--
(i) geographic region;
(ii) type of crime committed; and
(iii) the number and percentage of relevant offenses that
are prosecuted and the number for which convictions are
obtained.
(b) Assistance Other Than Financial Assistance.--At the
request of a law enforcement official of a State or a
political subdivision of a State, the Attorney General,
acting through the Director of the Federal Bureau of
Investigation and in cases where the Attorney General
determines special circumstances exist, may provide
technical, forensic, prosecutorial, or any other assistance
in the criminal investigation or prosecution of any crime
that--
(1) constitutes a crime of violence (as defined in section
16 of title 18, United States Code);
(2) constitutes a felony under the laws of the State; and
(3) is motivated by animus against the victim by reason of
the membership of the victim in a particular class or group.
(c) Grants.--
(1) In general.--The Attorney General may, in cases where
the Attorney General determines special circumstances exist,
make grants to States and local subdivisions of States to
assist those entities in the investigation and prosecution of
crimes motivated by animus against the victim by reason of
the membership of the victim in a particular class or group.
(2) Eligibility.--A State or political subdivision of a
State applying for assistance under this subsection shall--
(A) describe the purposes for which the grant is needed;
and
(B) certify that the State or political subdivision lacks
the resources necessary to investigate or prosecute a crime
motivated by animus against the victim by reason of the
membership of the victim in a particular class or group.
(3) Deadline.--An application for a grant under this
subsection shall be approved or disapproved by the Attorney
General not later than 10 days after the application is
submitted.
(4) Grant amount.--A grant under this subsection shall not
exceed $100,000 for any single case.
(5) Report and audit.--Not later than December 31, 2001,
the Attorney General, in consultation with the National
Governors' Association, shall--
(A) submit to Congress a report describing the applications
made for grants under this subsection, the award of such
grants, and the effectiveness of the grant funds awarded; and
(B) conduct an audit of the grants awarded under this
subsection to ensure that such grants are used for the
purposes provided in this subsection.
(6) Authorization of appropriations.--There is authorized
to be appropriated $5,000,000 for each of the fiscal years
2001 and 2002 to carry out this section.

Mr. HATCH. Madam President, I respect my colleagues. I think we are
all here to try to get at the same problem. I respect Senator Kennedy
for his sincere effort to try to do what is right with regard to civil
rights matters generally, and with regard to hate crimes in particular.
I feel very much the same way. This is a great country. It is the
greatest in the world. We ought to set an example. We ought to do the
things that really need to be done. But I think we have to have the
facts before we act. I don't think we should federalize crimes. I think
this amendment is too broad.
We are approaching this in two different ways. I hope we can somehow
or other get together to solve this matter in a way that will make
sense--that respects the principles of federalism, that respects the
States in their efforts to combat hate crimes. Right now, we are not
sure there are any States or local jurisdictions out there that are
failing or refusing to investigate and prosecute hate crimes. You can
cite the James Byrd and Matthew Shepard cases as two illustrations
where State authorities have done a tremendous job in prosecuting
horrific, hate-motivated crimes.
I don't think anybody should have to suffer from hate crime activity.
I think my amendment does not go as far as Senator Kennedy's, but I
think it will certainly handle the problem in a way that respects
federalism, respects the Constitution, and respects the nine decisions
of the Supreme Court over the last 8 years that have reinforced the
principle of federalism. In the end, I think my amendment will do what
all of us here on the floor would like to see done--promote the
investigation and prosecution of hate crimes--in a way that is
constitutionally sound.
I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois is recognized.
Mr. DURBIN. Madam President, let me say at the outset to my colleague
and friend, the Senator from Utah, Mr. Hatch, that it was my honor to
serve on the Judiciary Committee when he was chairman and I was a
member of that committee. I hope someday to return. It is an
interesting and exciting assignment. Occasionally we even agreed. They
were rare moments, but there were those moments. I never, at any moment
in time, lost any respect for the Senator from Utah and the values he
espouses. I believe he is a person of good faith who will genuinely try
to find a common ground. I sincerely hope he will.
I listened to his explanation of his amendment on this issue, and I
really think it comes down to a classic debate, which has been on the
floor of this Senate many times in its history, when we were discussing
whether or not African Americans were to become full citizens of the
United States with all of their rights and responsibilities. There were
those on the floor who said: It is not a Federal issue; let the States
decide; the Federal Government should not get involved in this.
There have been issues involving religious persecution--whether it is
people of the Senator's faith, or my faith, or many others. There have
been those who said this a State-and-local matter to decide, it should
not be a Federal issue.
The same thing was true when it came to elevating women in America
from their status in the Constitution--which we revere, but a
Constitution which, frankly, did not give the women the right to vote
when it was initially drafted. When the debate came on about the rights
of women, it was usually couched in terms of federalism: Should the
Federal Government get involved in this; or, this is a State issue.

We can remember the hot debates over the equal rights amendment and
all that entailed. The same thing has been true throughout history, the
way I read it--whether we are talking about blacks, women, or people of
a certain faith, or whether we are talking about people who have
certain disabilities. We have always come down to this debate: Is this
issue any business of the Federal Government?
I respectfully disagree with my colleague and friend, the Senator
from Utah. I think when it comes to hate crimes, this is an issue for
the Nation to solve. To leave it to individual States to make the
decisions is in fact to subject some Americans to less protection than
others when it comes to being victims of hate crimes.
Mr. HATCH. Will the Senator yield?
Mr. DURBIN. I am happy to yield.
Mr. HATCH. Madam President, I haven't said this isn't an issue for
the Federal Government. I think it may be. But the point is, we ought
to get the facts, and we ought to find out if State and local
authorities are failing or refusing to investigate and prosecute hate
crimes. We ought first to find out whether State and local authorities
are, in fact, denying individuals the equal protection of the laws. So
far, the Justice Department has produced precious little evidence to
the Judiciary Committee that would indicate

[[Page S5342]]

that State and local authorities are abdicating their responsibility to
combat hate-motivated crimes. And we asked for the Justice Department
to get us this information, if there is any, a long time ago.
Yet we have had actually nine decisions by the Supreme Court over the
last 8 years reinforcing the principle of federalism--the principle
that State governments and the federal government have distinct areas
of responsibility. It is true that these Court decisions are, in many
instances, 5-4 decisions, which shows again how important the Supreme
Court really is in all of our lives.
I am a proud cosponsor of the Violence Against Women Act. I remember
the passion when we passed it. There were real concerns whether it
would be upheld by the Supreme Court. Part of it was not upheld by the
Supreme Court, the part that I was concerned about. But up to that
point, I thought there was a chance.
But with the Morrison decision, I don't think there is a chance that
the Kennedy amendment, as it currently is written, will survive a
constitutional challenge. And I think that we ought to at least make an
attempt to abide by the Constitution, if nothing else. This is not a
matter of States rights. I think there may be a role for the Federal
Government. But right now, let's at least get the facts. In the
process, we can lend assistance, both financial and otherwise, to the
States to help them with these serious problems.
I am very grateful for my distinguished colleague and his respectful
remarks. They mean a lot to me because I happen to believe he is one of
the most articulate Members of this body. I believe he is very sincere.
It is true that we agree on much more than just a few things.
But I just want to make it clear that my amendment offers a different
approach--an approach that I think is constitutional, that will get us
there without going through another 2 or 3 years and then having it
overruled as unconstitutional and having to start all over again. I
know that the amendment I have offered is constitutional. I know we can
implement it from day one, without any fear that it will be struck down
by the Supreme Court as violative of the Constitution. And I know it
will make an impact and really do something about hate crimes, rather
than just make political points on the floor.
I thank my colleague.
Mr. DURBIN. I thank the Senator from Utah.
Let me say first how proud I am to cosponsor the legislation that has
been introduced by the Senator from Massachusetts, Mr. Kennedy, and the
Senator from the State of Oregon, Mr. Smith. It is bipartisan
legislation. Senator Carl Levin of Michigan is also one of the lead
sponsors of it as well.
The difference, as I understand it, between the proposal of the
Senator from Utah and the proposal of Senators Kennedy and Smith really
comes down to one basic point. As I understand it, the Senator from
Utah is looking to, first, provide grants to States and localities so
they can prosecute these crimes when they are found deserving; and,
second, to study the issue to determine whether or not there is a need
for Federal legislation.
As I understand the amendment before us by Senators Kennedy and
Smith, it basically creates a Federal cause of action, expanding on
what we now have in current law in terms of hate crimes, and expanding
the categories of activities that would be covered by this hate crime
legislation.
I say to the Senator from Utah, if he is on the floor, I believe the
Senator from Massachusetts will provide ample evidence of the need for
this legislation. I believe the statistics are not only there but they
are overwhelming in terms of the reason he is introducing this
amendment and why we need this national cause of action.
Second, during the course of my remarks I would like to address
squarely the issue raised by the Senator from Utah, an issue that has
been raised by the Supreme Court. It is, frankly, whether or not we
have the authority to create this cause of action.
The Senator uses recent Supreme Court decisions relating to the
commerce clause. When it came to the Violence Against Women Act, it is
my understanding the Supreme Court ruled that they could not find the
necessary connection between the Violence Against Women Act and the
commerce clause to justify Federal activity in this area.
If the Senator from Utah will follow this debate, I think he will
find that the Senator from Massachusetts and the Senator from Oregon
are taking a different approach. They are using the 13th amendment as a
basis for this legislation. They also establish an option of the
commerce clause. But they are grounding it on a 13th amendment
principle of law and Federal jurisdiction, which our Department of
Justice agrees would overcome the arguments that have been raised in
the Supreme Court under its current composition of overextension of the
commerce clause.
I hope as the Senator from Utah reflects on this debate, the
information provided by the Senator from Massachusetts, and the new
constitutional approach to this, that he may reconsider offering this
amendment. As good as it is to study the problem further and to provide
additional funds, it doesn't address the bottom line; that is, to make
sure there will at least be the option of a Federal cause of action in
every jurisdiction in America.
I would be happy to yield to the Senator from Utah for a question.
Mr. HATCH. I thank my colleague.
If I could comment, I believe the distinguished Senator from
Massachusetts can show that there are hate crimes in our society. I
think that he will have a difficult time, however, showing that that
State and local prosecutors are unwilling to investigate and prosecute
hate-motivated crimes. That is why I asked the Justice Department to
provide to us data and information on the specific instances where
State and local authorities failed or refused to investigate and
prosecute hate crimes.
Years ago, under the leadership of Senator Kennedy and myself, the
Senate passed the Hate Crime Statistics Act to collect data on the
incidence of hate crimes. We have statistics. I am sure there are hate
crimes, but I am not sure there is any evidence to show that these hate
crimes are not being prosecuted in the respective States. I'm just not
sure. That is one reason I think we should cautiously approach this,
rather than approach it in a way that I believe would be
unconstitutional.
I thank my colleague.
Mr. DURBIN. If the Senator will look closely at the Kennedy-Smith
amendment, he will find before the Federal cause of action can be
initiated--as I understand it, but I defer to either of the major
sponsors--before there can be a Federal indictment under this proposed
hate crime, the Department of Justice must certify two things: First,
reasonable cause to believe that the crime was motivated by bias;
second, addressing the very issue raised by the Senator from Utah, the
U.S. attorney has to certify that he has consulted with State or local
law enforcement officials and determined one of the following
situations is present, and he lists four situations.
First, the State does not have jurisdiction or does not intend to
exercise jurisdiction; second, the State has requested that the Justice
Department assume jurisdiction; third, the State doesn't object to the
Justice Department assuming jurisdiction; or fourth, the State has
completed prosecution and the Justice Department wants to initiate a
subsequent prosecution.
When the Senator from Utah suggests that the Kennedy-Smith amendment
will necessitate Federal control, I think, frankly, that when you look
at the certification required by the Federal Government before the
action can be undertaken, we clearly have a situation where the State
has either no jurisdiction, or has invited the Justice Department to
initiate the prosecution, or they have completed their prosecution.
In this amendment, the first option is clearly being given to the
States. If they have the authority and exercise it, clearly they will
not be preempted by this Federal cause of action, as I understand it.
If that is the case, I think it addresses the major concern raised by
the Senator from Utah.
Why do we need this new law? We have a 30-year-old Federal statute
which says when it comes to hate crimes, we have to find a specific
federally protected activity. Congress, in the past, tried to
``prophesize,'' if you will, the types of activities

[[Page S5343]]

that might be involved in a hate crime. We came up with six activities:
Enrolling in or attending a public school or private college; No. 2,
participating in a service or action provided by State or local
government; No. 3, applying for employment or actually working; No. 4,
service on a jury in State or Federal court; No. 5, traveling in
interstate commerce or using a facility of interstate commerce; and No.
6, enjoying the goods and services of certain places of public
accommodation.
We have said over the years if this activity is involved and there is
evidence of a hate crime, then the Federal prosecutors can step in.
I believe--and I don't want to put words in their mouths --Senators
Kennedy and Smith have said we have found too many cases arising which
do not fall within the four corners of these six federally protected
activities. Therefore, they are offering an amendment which gives
Federal prosecutors more opportunity to consider the possibility of
prosecution.
I am wearing a button today that says ``Remember Matthew.'' Matthew,
of course, is Matthew Shepard. Two years ago, Matthew Shepard, an
openly gay college student in Wyoming, was brutally beaten. He was
burned, he was tied to a wooden fence in a remote area, and left to die
in freezing temperatures from exposure.
Despite this heinous act which we all read about, no Federal
prosecution was even possible under the Shepard case. The existing
State crime law and federally protected activities that are defined in
it did not include what happened to Matthew Shepard. The current
Federal statute does not include hate crimes based on a victim's sexual
orientation, gender, or disability. The Kennedy-Smith amendment, which
I am cosponsoring, corrects that very grievous omission.
I think the Senator from Utah would concede that when we are talking
about hate crimes, we should certainly include crimes based on sexual
orientation, gender, or disability. The Matthew Shepard case would not
have been included, as I understand it. That is why the Kennedy-Smith
amendment is so important.
Mr. HATCH. If the Senator will yield, I am having a little bit of
difficulty, so I ask how the 13th amendment applies. As I read the 13th
amendment, it says, in section 1:

Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place
subject to their jurisdiction.

In section 2:

Congress shall have power to enforce this article by
appropriate legislation.

How does the Kennedy amendment qualify under the 13th amendment? As I
made clear, it doesn't qualify under the 14th amendment because of the
arguments I made, pure Supreme Court arguments, that are recent in
decision.
I missed something on the 13th amendment because that is the
amendment that abolished slavery.
Mr. DURBIN. Let me reply.
Mr. HATCH. Please tell me. This is a sincere question.
Mr. DURBIN. I am happy to defer to the sponsors of the amendment to
respond and yield time if they desire.
The information I have been given is this: Under the 13th amendment,
Congress may prohibit hate crimes based on actual or perceived race,
color, religion, or national origin, pursuant to that amendment. Under
the 13th amendment, Congress has the authority not only to prevent the
``actual imposition of slavery or involuntary servitude'' but to ensure
that none of the ``badges and incidents'' of slavery or involuntary
servitude exist in the United States.
What the Justice Department and what the sponsors of this amendment
have concluded is that the 13th amendment gives the appropriate Federal
jurisdiction and nexus to pursue this matter under the question of
whether or not this is a badge or incident of that form of
discrimination.
I don't want to go any further. I am sure the Senator from
Massachusetts will explain this in more detail, but this 13th amendment
nexus, I think, overcomes the concern of the Senator from Utah about
the interpretations recently handed down.
Mr. HATCH. I don't mean to keep interrupting, but as I read that, I
can see if what the Senator is after is a hate crime of keeping
somebody involuntarily in servitude, but I don't know of many of those
today. I am sure that may happen. We are talking about all kinds of
hate crimes that certainly don't fit within the 13th amendment. If that
is the way we are going to get at it, I think that is a very poor way
of getting at a resolution for a hate crime problem.
Reading again, section 1:

Neither slavery--

And I don't know of many instances of slavery in this day and age; in
fact, I don't know of any, but there may be some. But we can get them
constitutionally, right now, if they do that --

nor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist
within the United States or any place subject to their
jurisdiction.

Section 2:

Congress shall have power to enforce this article by
appropriate legislation.

If there is such a thing, if there is such a hate crime today as
slavery, or involuntary servitude not required because of a due
conviction, then we have the absolute power today, federally, to go in
and prosecute under the Constitution itself under the 13th amendment.
Maybe I am missing something, or maybe I just haven't thought it
through or I am too tired. I can't see how the 13th amendment provides
a nexus whereby the Kennedy amendment becomes constitutional. It
doesn't. In some ways, I wish the Kennedy amendment were
constitutional. I worked hard back in those days to pass the Violence
Against Women Act. I am working hard right now to pass it again in a
form that is constitutional. We thought it was constitutional. I have
to say, I had my qualms about it and my qualms proved to be accurate.
Today, we know what the Court has said. It has been the principle
debate in this country since the beginning. The Court has said that
Congress' power in relation to the States is limited. They are 5-4
decisions that are valid and are constitutional. For us to fly in the
face of those just because we want to federalize hate crime activity,
is, I think, constitutionally improper. That is what worries me.
These Supreme Court cases outlining the limits of congressional power
under the principle of federalism are quite recent decisions. They are
not old-time decisions that have been disqualified or overly
criticized. They are decisions that basically advise us of the law
right now.
I just wanted to make that point because I am concerned: How do you
make the Kennedy amendment constitutional? I don't think you can under
current law.
Now let's face it. If another Court comes in and reverses the nine
major federalism decisions that the Supreme Court has handed down in
the last few years, and ignores the principle of stare decisis and
ignores the principle of federalism, I suppose that at that point you
could enact the Kennedy legislation with impunity. But right now, I
don't see how you do it if we, as Members of Congress, are trying to
exert our influence and our obligation and our oath to uphold the
Constitution of the United States.
I am sorry to interrupt.
Mr. DURBIN. I am happy to yield to the Senator from Utah. Let me say
parenthetically I think there is more value to this dialog and exchange
than many monologs we hear on the Senate floor.
I thank the Senator for his interest and staying to question me, and
I am sure we will question him during the course of this debate.
I know there are other Members seeking recognition at this point. I
will try to wrap up.
I do not want to in any way misrepresent the amendment that is been
offered by Senators Kennedy and Smith. I think the statements I have
made to date are accurate. The Local Law Enforcement Enhancement Act
that is before us, the Kennedy-Smith amendment, was drafted carefully
and modified to assure its constitutionality under current Supreme
Court precedents, as has been referred to by the Senator from Utah. It
has been reexamined in light of the Morrison decision. Moreover, the
Department of Justice and constitutional scholars have examined this
bill and have confidently

[[Page S5344]]

determined that the Local Law Enforcement Act will stand up to
constitutional scrutiny.
Congress may prohibit hate based on race, color, religion, or
national origin pursuant to its power to enforce the 13th amendment to
the U.S. Constitution because under the 13th amendment Congress has the
authority not only to prevent the actual imposition of slavery or
involuntary servitude but to ensure that none of the ``badges and
incidents'' of slavery or involuntary servitude exists in the United
States, which goes to the very point of the Senator from Utah. He reads
the 13th amendment and says this goes far beyond prohibiting slavery.
But I might say the Supreme Court, in interpreting congressional
authority under the 13th amendment, said it could reach beyond the
simple question of prohibiting slavery or involuntary servitude. By
using the language ``badges and incidents,'' it opened up the
opportunity for Congress to consider this authority and for this
amendment to be introduced.
None of the Supreme Court's recent Federalism decisions casts doubt
on Congress' powers under the 13th amendment to eliminate the badges
and incidents of slavery. United States v. Morrison involved
legislation that was found to exceed Congress' powers under the 14th
amendment. The Court in Morrison, for example, found Congress lacked
the power to enact the civil remedy of the Violence Against Women Act
pursuant to the 14th amendment because the amendment's equal protection
guarantee extends only to ``state action.'' The Senator from Utah, who
was one of the proponents of this and deserves high praise for it,
makes this point in his opening statement on his amendment.
Since the Violence Against Women Act was interpreted by this Court to
go beyond State action--that is, Government action--the Court struck it
down. We are trying our best to reinstate it, but that is the standard.
The 13th amendment, however, not the 14th amendment, which they used
to strike down the Violence Against Women Act, plainly reaches private
conduct as well as Government conduct, and Congress thus is authorized
to prohibit private action that constitutes a badge, incident, or relic
of slavery.

Moreover, this hate crimes amendment would not only apply except
where there is an explicit and discrete connection between the
prescribed conduct and interstate or foreign commerce, a connection
that the Government would be required to allege and prove in each case.
This is consistent with Morrison. Like the prohibition of gun
possession in the statute at issue in the Lopez case, the Violence
Against Women Act civil remedy required no proof of connection between
the specific conduct prohibited and interstate commerce. This amendment
requires that a nexus exist between the prohibited conduct and
interstate or foreign commerce.
Madam President, there are many who believe that a hate crime
prevention statute is unnecessary. I don't put the Senator from Utah in
that category. He has made it clear he is opposed to hate crimes, and I
trust his word. I believe he is genuine when he says it. The question
is, Who will have the power to enforce it? If the Senate neither has
the authority nor wants the authority, if the State does not want to
prosecute a hate crime, and yet it has been committed and truly there
is a victim, the Kennedy-Smith amendment says we will create the
opportunity for a Federal cause of action.
We are not forcing the Federal cause of action, but only in the
instance where the State either doesn't have authority or has not
exercised the authority or in fact defers to the Federal Government or
in fact has completed its prosecution and left open the opportunity for
such a Federal cause of action.
I wish we did not even have to debate hate crimes legislation. Alan
Bruce of my staff has been a person I have turned to many times on
issues of this magnitude on this subject. He was the one who gave me
this button to wear in the Chamber and can remember Matthew Shepard. It
is a grim reminder that there are still people in America who will not
accept tolerance as the norm, and if we think it is rare, we only have
to go to our new technology of the Internet to find the hate being
spewed on so many web sites, efforts by small-minded people in this
democratic society to turn our anger against our brothers and sisters
who live in America, who happen to be a different color, of a different
sexual orientation, a different religion, a different gender. This
amendment really tries to address it and say that America as a nation
will make it clear that we will not tolerate this sort of hateful,
spiteful conduct when it results in violence against one of our
brothers and sisters.
How many times have we read these harrowing details: Jasper, TX, with
James Byrd, Jr., 2 years ago dragged to his death when he was hooked by
a chain to the back of a pickup truck. They literally found this
African-American's body in pieces.
The brutal hate-motivated deaths of James Byrd and Mathew Shepard
received national attention. Since their deaths, our Nation has thought
long and hard about whether this is an America we can tolerate. I think
it is not.
Madam President, I bring your attention to two crimes in my own State
of Illinois just in the last year.
April 5, 1999: Naoki Kamijima, 48 years old, a Japanese American
shopowner was shot to death in Crystal Lake, IL, right outside of
Chicago. The gunman was allegedly searching stores for employees of
certain ethnic groups before finding and shooting Mr. Kamijima.
Reportedly, the gunman said to employees he left behind after
questioning them on their ethnic background, ``This is your lucky
day.'' Hours later, Mr. Kamijima was shot dead, leaving a wife and two
teenage children. His crime? He was an Asian-American. A Korean
neighbor of the gunman said he used to chase her car when she drove
through the neighborhood.
On the Fourth of July, 1999, a time of celebration across America, a
shadow was cast over Illinois. Benjamin Smith, an individual associated
with a racist, antisemitic organization, killed an African-American
man, Ricky Birdsong, the former basketball coach at Northwestern
University. Then he went on, this same Benjamin Smith, to wound six
Orthodox Jews in Chicago. I met the father of one of the young boys
whose son was terrorized that night. His life will never be the same.
His only crime in the eyes of Benjamin Smith? He did not practice the
right religion. Then Benjamin Smith went on to kill a Korean student in
Bloomington, IN.

Sadly, these incidents are only the tip of the iceberg. There are so
many other incidents of hate violence in my State and around the
Nation. Since 1991, 70,000 hate crime offenses have been reported in
our country. Launching a comprehensive Government analysis of currently
available hate crime data would likely be time consuming and not bring
us any closer to solving the real problem of hate violence in this
Nation.
Mr. President, the Local Law Enforcement Act offers a sensible
approach to help deter this kind of discriminatory violence. This
legislation has bipartisan support: Senator Gordon Smith, Senator Ted
Kennedy, Senator Carl Levin, and so many others. It is supported by law
enforcement, civil rights and civic groups, and religious
organizations. I am proud to cosponsor this legislation. I urge my
colleagues to support its passage.
I yield the floor.
The PRESIDING OFFICER (Mr. Stevens). The Senator from Louisiana.
Mr. BREAUX. Mr. President, I start by commending the distinguished
chairman of the Judiciary Committee for his important observations
about this legislation; also, to commend the principal sponsors of this
legislation, Senator Kennedy and Senator Smith, for bringing this
matter to the attention of our colleagues and seeking our support for
this legislation.
I do not think this is that complicated an issue, quite frankly. I do
not think the issues are so complex that they call for an extended
psychological discourse on the makeup of the American population. Quite
frankly, the issues are fairly simple. America stands for the
constitutional principle that all men and women are created equal and
that we are all guaranteed the rights of life, liberty, and the pursuit
of happiness regardless of who we are or where we are from or what we
think, what our political views are, or what is the essence of our
makeup as a

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human being. That is a right that is guaranteed to all Americans in the
Constitution. I think no one really questions that.
That principle does not mean everyone in America has to agree with
everybody else. In fact, I think that, far from it, we are a nation
that certainly encourages diversity of thinking, differences among
competing ideas, and differences among the respected beliefs of all the
people who make up our great Nation.
That constitutional principle does not even mean that we have to like
each other. Certainly there are instances when Catholics do not like
Protestants, and Protestants do not like Jews, and Jews do not like
Muslims, and Cajun Americans may have differences with British
Americans. For that reason alone they do not particularly care for each
other; they do not like each other; they do not want to associate with
each other. That also is their constitutional right, I suggest, in this
country to take that opinion of people with whom they disagree. But our
constitutional principles do, in fact, guarantee clearly that we as
Americans cannot do violence or do harm to other people in our country,
especially when that violence or harm is based solely on whom these
other people might be.
To do violence solely because of someone's religious beliefs, their
personal ideas, or concepts about what is right and what is wrong, or
because of their religion or where they are from is especially
repugnant to all of us as Americans. You do not have to like everybody,
but you certainly cannot harm anybody, and especially you cannot harm
anybody solely for whom they happen to be or who they are.
This legislation then is aimed at adding crimes that are motivated by
a bias against people solely because of their gender or solely because
of their sexual preference or perhaps because of some disability they
might have. I, therefore, think this legislation which the authors
bring to the Senate is appropriate and should be supported. It will
send a clear message throughout this country that these types of
activities in this country will not be tolerated.
Again, in America, our right to not embrace or befriend someone with
whom we do not want to be associated, for whatever reason, is
guaranteed. But what is also guaranteed is their right under the
Constitution of the United States to be protected against violence and
harm that others might do unto them solely because of who they are.
As Americans, we certainly should be proud of our multicultural and
multiethnic heritage. We are a diverse nation and when we look at other
nations that are having problems because of their heritage or their
diversity, we can be proud in this country that we, in fact, are a
different nation than many others. Therefore, this legislation sends a
strong and clear message that domestic terrorism and violence against
people in our country based merely on who they are or what they believe
is something that deserves national protection, and Federal legislation
is, in fact, important.
A hate crime against any American is a crime against all Americans,
and this legislation saying that is a Federal right upon which we will
insist is appropriate and proper and deserves our support.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. REED. Mr. President, I rise this afternoon to speak for this
legislation and commend Senator Kennedy for his sponsorship, along with
my colleagues, of this legislation. Senator Kennedy has long been an
advocate for a society in which individuals reach out not with hate but
with fellowship. I am pleased to see other supporters, like Senator
Smith, who are also in the vanguard of this great effort.
This afternoon we are here because of the murders of James Byrd and
Matthew Shepard and others--because these acts of violence tear at the
very fabric of our society.
Unfortunately, over the past 2 years, we have seen far too many cases
of these types of crimes of violence, motivated strictly by prejudice
and hatred of people, not because of their character but because of
some perception of their failings in the eyes of others.
In my own State of Rhode Island, in May 1998 a group of seven to ten
men stomped and battered a Cranston bartender and an acquaintance as
they were coming out of a Providence night club, while laughing and
screaming anti-gay epithets. The waiter suffered fractured bones in his
jaw, head and collarbone, cracked ribs, and a puncture wound to his
chest caused by a broken bottle. The acquaintance suffered a fractured
eye socket and bruises.
According to Providence, Rhode Island city officials, the number of
hate crimes reported in Providence has grown in recent years. In 1998,
25 such crimes were reported, and, last year, 32 were reported.
In February 1999, in an incident which took place in Pawtucket, Rhode
Island, two men were walking home with a female friend from a church
function and were assaulted by a third man. While yelling obscenities
and anti-homosexual slurs, the third man hit one of the men over the
head with a full wine bottle, and then jumped on top of him and punched
him repeatedly in the face and head. He then threw him up against a
brick wall and continued to hit him while yelling anti-gay epithets.
In California, three men pled guilty to racial terrorism for burning
a swastika outside a Latino couple's residence.
In Florida, a Puerto Rican man was allegedly beaten by three white
men who yelled racial slurs.
In Ohio, a 23-year-old Hispanic male was gunned down by three
assailants. Police reported it as a racially motivated incident. The
list goes on and on.
This amendment would simply extend the current definition of Federal
hate crimes to include crimes committed on the basis of someone's
gender, sexual orientation, or disability. It would allow the Federal
Government to prosecute an alleged perpetrator who commits a violent
crime against someone just because that person is gay, blind, or
female.
This amendment basically brings our civil rights statutes in line
with the most recent definition of hate crimes promulgated by this
Congress.
This amendment also eliminates the restrictions that have prevented
Federal involvement in many cases in which individuals were killed or
injured because of bias or prejudice.
It also supports State and local efforts to prosecute hate crimes by
providing Federal aid to local law enforcement officials. In
particular, it authorizes the Justice Department to issue grants of up
to $100,000 to State, local, and Indian law enforcement agencies that
have incurred extraordinary expenses associated with investigating and
prosecuting hate crimes.
This amendment does not federalize all violent hate crimes. It
provides for Federal involvement only in the most serious incidents of
bodily injury or death, and only after consultation with State and
local officials, a policy that is explicitly reflected in a memorandum
of understanding entered into by the Department of Justice with the
National Association of District Attorneys last July.
Finally, the Department of Justice has reviewed this amendment and
believes it does meet the constitutional standards recently articulated
in Supreme Court cases. For crimes based on gender, sexual orientation,
disability, religion, and national origin, the amendment has been
carefully drafted to apply only to violent conduct in cases that have
an ``explicit connection with or effect on interstate commerce.''
This amendment has attracted broad bipartisan support from 42
Senators, 191 Members of the House of Representatives, 22 State
attorneys general, and more than 175 law enforcement, civil rights, and
religious organizations. This demonstrates the huge support (for
strengthening Federal hate crimes legislation, support) which cuts
across party lines and which reaffirms a fundamental belief and tenet
of our country: That people should be able to be individuals, to be
themselves without fear of being attacked for their individuality, for
their personhood, for their very essence.
These hate crimes are very real offenses. They combine uncontrolled
bigotry with vicious acts. These crimes not only inflict personal
wounds, they wreak havoc on the emotional well-being of people
throughout this country, because they attack a person's identity as
well as his or her body. Although bodies heal, the scars left by

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these attacks on the minds of the victims are deep and often endure for
many years.
There is no better way for us to reaffirm our commitment to the most
basic of American values: the dignity of the individual and the right
of that individual to be himself or herself. We can do that by voting
in favor of this amendment. I believe it is our duty. I am pleased to
join this great debate and lend my support to this amendment. I yield
the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. JEFFORDS. Mr. President, I rise today to support the Hate Crimes
Prevention Act. I applaud Senators Kennedy and Smith of Oregon, and
others for providing us an amendment on the Department of Defense
authorization bill which will be of great assistance in the prosecution
of hate crimes.
This legislation will provide the Federal Government a needed tool to
combat the destructive impact of hate crimes on our society. The
amendment also recognizes that hate crimes are not just limited to
crimes committed because of race, color, religion, or national origin,
but are also directed at individuals because of their gender, sexual
orientation, or disability.
Any crime hurts our society, but crimes motivated by hate are
especially harmful. Hate crimes not only target individuals but are
also directed to send a message to the community as a whole. The
adoption of this amendment would help our State and local authorities
in pursuing and prosecuting the perpetrators of hate crimes.
Many States, including the State of Vermont, have already passed
strong hate crimes laws. I applaud them for their endeavor. An
important principle of this amendment is that it allows for Federal
prosecution of hate crimes without impeding the rights of States to
prosecute these crimes.
Under this amendment, Federal prosecutions would still be subject to
the current provision of law that requires the Attorney General or
another senior official of the Justice Department to certify that a
Federal prosecution is necessary to secure substantial justice. Such a
requirement under current law has ensured that the States are the
primary adjudicators of the perpetrators of hate crimes, not the
Federal Government. Additionally, Federal authorities will consult with
the State and local law enforcement officials before initiating an
investigation or prosecution. Both of these are important provisions to
ensure that we are not infringing on the rights of States to prosecute
these crimes.
Senate adoption of this amendment will be an important step forward
in ensuring that the perpetrators of these harmful crimes are brought
to justice. I urge my colleagues to take a strong stand against hate
crimes by supporting this important legislation.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Has the Senator from Vermont completed his statement?
Mr. JEFFORDS. Yes. I have yielded the floor.
Mr. REID. Mr. President, in Las Vegas a gay man was shot to death
because he was gay. In Reno, someone went to a city park with the
specific purpose to find someone who was gay, found him, and killed
him. These types of incidents have happened not once, not twice, but
numerous times in Nevada, and thousands of times around this country.
I only mention two of the occasions where someone's son, someone's
brother was killed. They were human beings. These people were killed
not because of wanting to steal from them, not because of wanting to do
anything other than to kill them because of who they were. They were
killed because someone hated them.
Mr. President, I rise today in support of the Local Law Enforcement
Act of 2000. I am an original cosponsor of the freestanding legislation
authored by the senior Senator from Massachusetts, Mr. Kennedy. I
commend Senator Kennedy for his tireless efforts to ensure that the
Senate consider and pass this important and much-needed measure. This
is important legislation, and I am very happy that we are now at a
point where this legislation can be debated in the Senate.
Hate crimes legislation is needed because, according to the FBI,
nearly 60,000 hate crimes incidents have been reported in the last 8
years. In 1998, the latest year for which FBI figures are available,
nearly 8,000 hate crimes incidents were reported. But these figures are
more frightening when we ponder how many hate crimes are not reported
to law enforcement authorities.
Unfortunately, the Federal statutes currently used to prosecute hate-
based violence need to be updated. That is what Senator Kennedy is
doing. These Federal laws, many of which were passed during the
Reconstruction era as a response to widespread violence against former
slaves, do not cover incidents of hate-based crimes based upon a
person's sexual orientation, gender, or disability. In 1998, again, the
last year for which statistics are available, there were 1,260 hate
crimes incidents based on sexual orientation reported to law
enforcement. Many more took place. These are only the ones that were
reported. This figure, which represents about 16 percent of all hate
crimes reported in 1998, demonstrates that current law must be changed
to include sexual orientation under the definition of hate crimes.
I have listened to the debate on the floor today. I think we all have
some remembrance of the terrible series of events which occurred in
Jasper, TX, a couple years ago. On June 7, the country paused to
remember the second anniversary of James Byrd, Jr.'s horrific death,
when he was dragged along a rural back road in Texas. This man was just
walking along the road when certain people, because of the color of his
skin, grabbed him, beat him, and if that wasn't enough, they tied him,
while he was still alive, to the back of their pickup and dragged him
until he died.
Due to the race-based nature of the Byrd murder, Federal authorities
were able to offer significant assistance, including Federal dollars,
to aid in the investigation and prosecution of that case to ensure that
justice was served.
Unfortunately, the same cannot be said about another case that has
already been talked about here on the floor today; the case of Matthew
Shepard. He was a very small man. In spite of his small size, two men,
assisted by one or both of their girlfriends, took this man from a bar
because he was gay, and, among other things, tied him to a fencepost
and killed him.
This was gruesome. It was a terrible beating and murder of this
student from the University of Wyoming. But, what makes this case even
more disturbing is that Wyoming authorities did not have enough money
to prosecute the case. They did, of course, but in order to finalize
the prosecution of that case, they had to lay off five of their law
enforcement employees. The local authorities could not get any Federal
resources because current hate crimes legislation does not extend to
victims of hate crimes based upon sexual orientation.

If there were no other reason in the world that we pass this
legislation than the Matthew Shepard case, we should do it. I have
great respect for those people in Wyoming who went to great sacrifice
to prosecute that case.
The hate crimes legislation being offered to the Defense
Authorization bill is a sensible approach to combat these crimes based
upon hate. The measure would extend basic hate crimes protections to
all Americans, in all communities, by adding real or perceived sexual
orientation, gender, or disability categories to be covered.
The amendment would also remove limitations under current law which
require that victims of hate crimes be engaged in a federally protected
activity.
There may be those who are listening to this debate and wondering why
we need to protect those people who are handicapped or disabled? We
need only look back at some of the genocide of the Second World War and
recognize that Hitler was totally opposed to anyone who was not, in his
opinion, quite right. He went after people who had disabilities.
So there are people, as sad as it may seem, who not only are hateful
of people who are of a different color, a different religion, a
different sexual orientation, but also someone who does not have all
their physical or mental capacities.
We must give law enforcement the tools they need to combat this kind
of

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violence, to help ensure that every American can live in an environment
free of terror brought on by hatred and violence.
As Senator Kennedy will say, this amendment has been carefully
drafted and modified to assure its constitutionality under current
Supreme Court precedents and has been reexamined in light of the recent
Morrison decision which invalidated the civil rights remedy in the
Violence Against Women Act. I appreciate the work done by Senator
Kennedy and the Judiciary Committee for taking such a close look at
this legislation.
I have shared with my colleagues two incidents in Nevada. There are
many, many others. There are incidents in all 50 States and the
District of Columbia of people who have been kidnaped, beaten, raped,
and murdered as a result of their sexual orientation. Court records
reveal that in each of these cases, with rare exception, there is hate
that spews out of these people's mouths before the act takes place,
derogatory names and slurs as they are taking people to their deaths,
brutal sadistic murders.
These victims are someone's son, someone's daughter, someone's
brother, someone's sister, someone's loved one. People should not be
killed because they are different; they should not be killed because
someone has a certain, misguided standard of how someone else should
be. People should not be killed because of hate.
We live in America, the land of freedom and opportunity. We should
make sure we stand for morality based upon people's accomplishments,
not because of their race, color, creed, or sexual orientation.
I extend my congratulations to Senator Kennedy for the work he has
done. I hope these two men, Senators Hatch and Kennedy, who have worked
so closely on legislation over the years, will see that this important
aspect of the law which needs to be revised is revised in such a way
that we can all hold our heads high and say: When these crimes take
place in the future, authorities in States such as Wyoming will not
have to lay off five law enforcement officers to prosecute the crime.
The PRESIDING OFFICER (Mr. Smith of Oregon). The Senator from
Massachusetts.
Mr. KENNEDY. Mr. President, I thank all of our colleagues for
addressing this issue on this Monday afternoon. We generally, on Monday
afternoons as well as on Friday afternoons, have less heavy matters
before our body.
This afternoon we have had a very impressive series of statements
that have urged us to take the action on tomorrow to move ahead and
pass strong hate crimes legislation. I listened earlier to a number of
our colleagues. I thought there were many excellent statements, which I
am hopeful our Members will have a chance to review in the early
morning in the Congressional Record. These statements have been
absolutely superb. We have had a wide variety of different Members from
different backgrounds and experiences, different political viewpoints,
speak on this issue. That is the way it should be because we are
talking about a matter of fundamental importance for our society and
our country. We are talking about what our country is really about,
what steps we are prepared to take to make America, America.
We have shown that over a period of time, certainly since the end of
the Civil War, this Congress has taken steps to guarantee the
protection of constitutional rights, going back to 1866. In the more
modern time, we enacted civil rights legislation in the early 1960s,
after the extraordinary presence of Dr. King who awakened the
conscience of our Nation in the latter part of the 1950s and early part
of the 1960s. We went ahead and took action in 1964 on what was known
as the Public Accommodation Act. We were asked: Will the kinds of
enforcement mechanisms stand up under constitutional challenge? And
they did.
Then, in 1965, we took action in order to preserve the right to vote
for our citizens. Now it seems almost extraordinary that a large number
of Americans were denied the right to vote. At that time, it was
debated for some time. We took strong steps to ensure that America was
going to be America in terms of the right to vote. In 1968, we had our
Fair Housing Act to make sure that citizens whose skin was a different
color were not going to be denied the opportunity to purchase homes. We
took action in 1968 to protect that right. It wasn't very effective. We
had to come back and revisit that again in 1988. Still, the progress
went on. In 1988, we passed legislation to protect the rights of the
disabled in our society. We had made some progress with what is known
as Title VII over time, but the Americans with Disabilities Act was the
legislation that established protections. We were saying to the
American people--and the American people supported it--that if
individuals have a disability, they should not be discriminated against
in our society.
This is what we are talking about. We are talking about forms of
discrimination. Discrimination is rooted in the basic emotion of
hatred, of distrust, and of bigotry. We have seen it manifested in race
relations in our country. Hatred, distrust and bigotry have also been
reflected in other ways: on the basis of religion, national origin,
sexual orientation, gender, and disability. We freed ourselves from
discrimination based on national origin with the 1965 Immigration Act.
The Immigration Act had certain rules for those who came from the Asian
Pacific Island triangle. We only permitted less than 150 Asians to come
onto our shores prior to 1965. Then we also had what was called the
national origin quota system which discriminated against people who
came from a number of the European countries. All of this is part of
our national history.
One of the amazing and important aspects of the progress that America
has made in recent time is in trying to free us from the stains of
discrimination. We are talking not only about those who have been
discriminated against but those who have perpetrated the
discrimination.
We are talking about a continuum of this Nation attempting to define
what America ought to be--a nation free from the forms of
discrimination and hatred and bigotry. That is what distinguishes hate
crimes from other criminal activities. Crimes based upon hatred and
bigotry wound not only the individual, but they also wound and scar an
entire community.
Hate crimes occur on a daily basis in the United States of America.
Numerous hate crime incidents have been mentioned by our colleagues and
illustrated time and again. According to FBI statistics, nearly one
hate crime is committed every hour.
My colleagues and I want to take action that will move this country
forward and free us from those acts of hatred that divide us.
We can't solve all of these problems, but there is no reason, when we
have violence in our society, that those who are charged with
protecting the Constitution of the United States ought to be standing
on the sidelines when violence based upon discrimination is taking
place in the United States of America. Why should we limit ourselves--
those who have a responsibility--from helping and assisting those who
are involved in local enforcement and State law enforcement,
particularly when we are talking about these hate crimes against women
in our society?
An individual was charged in Yosemite this past year with the murder
of four women. He told the police investigators he had fantasized about
killing women for three decades. A gay, homeless man in Richmond, VA,
was found with a severed head and left at the top of a footbridge in
James River Park near a popular gay meeting place. In Crystal Lake, IL,
a Japanese American shopowner was shot to death outside of Chicago,
based upon the fact of discrimination against Asians. Three synagogues
in Sacramento, in July of 1999, were destroyed by arson on the basis of
anti-Semitism.
These things are happening today. With all due respect to my friend
and colleague from Utah, his legislation is basically to have a further
study about whether these kinds of activities are taking place. This
amendment that he has, on page 1, talks about studies, the collection
of data, the data to be collected. Then it shows the number of relevant
offenses, the percentage of offenses prosecuted. It continues on with
the identification of trends. Then it has provisions for grants to
local communities, and eligibility, and grants of $100,000.

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We have had the FBI doing the study for the last 10 years. We have
the figures that the FBI has produced. The one thing that the FBI has
testified to, and is very clear about in their studies, is they believe
it is vastly underestimating the amount of hate crimes that are taking
place, because in so many instances there isn't the local training or
prioritizing of hate crimes by local communities and State communities
in order to collect the information or data on this.
So we do know that this is happening today. It is happening in
increasing numbers. The reports that we do have basically underestimate
the amount of action and activity that is taking place, and the States
themselves--some of them--have taken action. But very few, if any, have
taken the kind of comprehensive action we are talking about.
There are enormous gaps in the activities of the States in the kinds
of protections they are providing. Others have talked about it, and I
am glad to get into the various kinds of protections that we are
talking about here, the reasons for this legislation. Again, I say,
this is our opportunity--and tomorrow--to say whether we are going to
be serious about taking action in this area of bigotry and hatred that
is focused on particular groups in our society. We have been willing to
take action in the past. We were willing to do it in the past. I have
mentioned six or eight instances when this Congress thought there was
such a compelling reason for us to take the action that we went ahead
and took that action in order to try to do something about
discrimination in our society.
We have the same issue in a different form before the Senate now. In
the early 1960s, we had discrimination against blacks because we were
not going to permit them to vote. We passed legislation and then
implementing legislation. We said we were not going to protect
discrimination and bigotry, discriminating against blacks in the areas
of housing. We did the same regarding the disabled on the Americans
With Disabilities Act. We made progress on discrimination against women
in our society, and we have made progress as well in terms of
understanding the various challenges on freeing ourselves from some
forms of discrimination on the basis of sexual orientation--although we
have made very little in that area.

The question is not the issue on sexual orientation. It is about
violence against individual Americans. That is what it is about when
you come down to it. It is violence based on bigotry. You can read long
books about the origins of hatred and the origins of bigotry and the
origins of prejudice and how they develop against individuals or
individual groups. Many of them are different in the way that they did
develop. But there is no difference about what is there basically when
it is expressed in terms of violence. It is still violence against
those individuals, and that is what we are attempting to address.
I will put in the Record the various justifications, in terms of the
constitutional issues. We can get into those and debate and discuss
those in the course of the evening. We believe we are on sound basis
for that. We have spent a great deal of time in assuring that the
legislation was going to meet the challenges of Supreme Court
decisions. I believe that we do. I respect those who believe we have
not. But we are talking about taking action and doing it now.
There are all kinds of reasons in this body why not to take action.
But if we want to try to have an important response to the problems of
hate crimes in our society, this is the way to do it. It is a
bipartisan effort, and it has been since the development of our initial
efforts under the leadership of Senator Simon and others a number of
years ago, with just the collection of material. It has been, since
that time, basically bipartisan, and it is on this measure now. It is
whether we in the Senate are going to say that we have enough of the
Matthew Shepard cases, that we have enough of the kind of vicious
murdering on the basis of race, that we have enough prejudice and
discrimination and expression of violence against Jewish individuals in
our society, and we have had enough in terms of the violence against
those who have a different sexual orientation. That is what the issue
is, no more and no less.
I want to take a few moments, and if others want to address the
Senate, I will obviously permit them to do so. I want to give the
assurances to our colleagues about how this particular legislation has
been fashioned and has been shaped. It is targeted, it is limited, it
is responsive in terms of its constitutional standing and how it
basically complements the work of the States, which are attempting to
try to deal with those issues, and how it is positive in terms of
helping those States, and how, in many circumstances--for example, in a
number of the rapes or aggravated sexual assaults, because criminal
penalties under State laws are actually more severe than under Federal
laws, the prosecution quite clearly would fall in those circumstances.
As has been pointed out, in all the hate crimes prosecutions, the
Federal authorities consult with the State and local enforcement
officials before initiating an investigation or prosecution. The
Federal jurisdiction allows the States to take advantage of the
Department of Justice resources and personnel. Even if the State
authorities ultimately bring the case, the Federal jurisdiction also
allows the Attorney General to authorize the State prosecutor to bring
a case based on Federal law, when that should be important or
necessary.

In cases where the States have adequate resources to investigate and
prosecute a case and it appears determined to do so, the Federal
Government will not file its own case. As has been the case under
existing law, prosecutions under expanded case law would occur
primarily in four situations: where the State does not have
jurisdiction or the State prosecutors decline to act; or, after
consultation between Federal and local authorities there is a consensus
that a Federal prosecution is preferable because of the higher
penalties and procedural advantages due to the complexity of the case;
third, the state does not object to the Justice Department assuming
jurisdiction; or fourth, that the State prosecution does not achieve a
just result and the evidence warrants a subsequent Federal prosecution.
Those are very limiting factors because they effectively give the
States veto rights over Federal jurisdiction. We are talking about
having an extremely effective remedy, one that will be in the interest
of justice but one that is carefully sharpened in terms of its scope to
make sure that we maintain local involvement and consider local
priorities.
The point is made that the Federal Hate Crimes Act would, in many
cases, continue to overlap State jurisdiction. People have opposed this
proposal for that reason. Violent crimes, whether motivated by
discriminatory animus or not are generally covered under State law, and
such an overlap is common. For example, there is overlapping Federal
jurisdiction in cases of many homicides, in bank robberies, in
kidnapings, in fraud, and other crimes.
We have been willing to do it in other circumstances, and I believe
that we must have overlapping jurisdiction for violent crimes based on
animus and hatred as well. We must take meaningful steps to do
something about it. Clearly, I think we have an important
responsibility to act.
The importance of the amendment is to provide a backstop to State and
local enforcement by allowing a Federal prosecution, if it is
necessary, to achieve an effective just result and to permit Federal
authorities to assist in local investigations.
As has been mentioned, every Federal prosecutor would have to prove
motivation beyond a reasonable doubt in all cases. The prosecution
would present evidence that indicated that a motivating factor in the
defendant's conduct was bias against a particular group. That is a
question for the jury to decide. Obviously, the prosecutor must
convince the jury that the crime was based upon bias in order to secure
a conviction.
I withhold and yield the floor.
The PRESIDING OFFICER (Mr. Fitzgerald). The Senator from Utah is
recognized.
Mr. HATCH. Mr. President, I listened carefully to the comments of my
colleague. He knows I have great respect for him in regard to civil
rights matters. I have great commendation for him. I feel deeply, as he
does. However, there is no use kidding about it. I

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think we ought to be prudent in the approach that we take. I think we
ought to be constitutionally sound as well.
In all of the comments of my dear friend, he still hasn't answered
this basic question, which is: Can those who are pushing this very
broad legislation that would federalize all hate crimes--and all crimes
are hate crimes, by the way. I believe that is, if not wholly true,
certainly substantially true--but can those who want to enact this
broad legislation federalizing all hate-motivated crimes tell me the
number of instances, if any, in which State or local authorities have
refused or failed to investigate and prosecute hate crimes? If there
are any cases in which State or local authorities have refused or
failed to investigate and prosecute a hate crime, was it because the
State or the local jurisdiction was unwilling, for whatever reason, to
bring the prosecution?
These questions haven't been answered. We asked them at the hearings,
and the Justice Department couldn't answer them. In fact, Deputy
Attorney General Holder testified that States and localities should be
responsible for prosecuting the overwhelming majority of hate crimes.
He said:

State and local officials are on the front lines and do an
enormous job in investigating and prosecuting hate crimes
that occur in their communities. In fact, most hate crimes
are investigated and prosecuted at the State level.

That is the Deputy Attorney General of the United States of America.
We have never denied that hate crimes are occurring. Nobody can deny
that. I want to get rid of them as much as anybody--certainly as much
as the distinguished Senator from Massachusetts.
But we have yet to hear of specific instances where States have
failed or refused to prosecute. We have heard lots of horrific stories
about hate crimes from Senators Kennedy, Reid, and Durbin. But I think
they have neglected to finish the story.
In each case, the Shepard case and the Byrd case, for example--
heinous crimes, no question about it--that should never have occurred;
that should have been prosecuted; and were prosecuted. The State
prosecutors investigated those cases. They prosecuted the defendants.
In the Byrd case, the prosecutors even obtained the death penalty,
something that could not be obtained if the Kennedy amendment had been
passed and the Federal Government had brought the case. Think about
that. I think some crimes are so heinous that the death penalty should
be imposed. Certainly the Byrd case, where racists chained James Byrd
to a truck and dragged him to death on a back road in Jasper, Texas,
warranted the death penalty. But in all of those cases, there ought to
be absolute proof of guilt. The crime ought to be so heinous that it
justifies the penalty, and there should be no substantial evidence of
discrimination. In the Byrd case and the Shepard case, the defendants
were fully prosecuted to the fullest extent of the law.
The question is not whether hate crimes are occurring. They are. We
have them in our society--the greatest society in the world. We have
some hate crimes. They are occurring. We all know it. They are
occurring, and they are horrific and are to be abhorred. The question,
though, is whether the States are adequately fighting these hate
crimes, or whether we need to make a Federal case out of every hate-
motivated crime.
My amendment calls for an analysis of that question. If my amendment
passes and causes an analysis of that question, and we conclude that
hate crimes are not being prosecuted by the State and local
prosecutors, my gosh, I think then we are justified to federalize, if
we can do it constitutionally, many of these crimes.

A prudent thing, in my view in light of the constitutional questions
that are raised by the Kennedy amendment, would be to do the analysis
first.
But my amendment does more than that. My amendment provides funds to
assist State and local authorities in investigating and prosecuting
hate-motivated crimes. My amendment provides resources and materials to
be able to help States and localities with hate crimes. We are not
ignoring the problems that exist.
Deputy Attorney General Eric Holder conceded in his testimony before
our committee, and he acknowledged that an analysis of the hate crimes
statistics that have been collected needs to be conducted to determine
whether State and local authorities are failing to combat hate crimes.
Eric Holder testified that the statistics we have are, to use his term,
``inadequate.'' In his testimony, Deputy Attorney General Holder
repeatedly argued that the Justice Department should be permitted to
involve itself in local hate crime cases where local authorities are
``unable or unwilling to prosecute the case.'' Holder admitted in his
testimony that there are ``not very many'' instances--later in his
testimony, he said, ``rare instances''--where local jurisdictions, for
whatever reason, are unwilling to proceed in cases that the Justice
Department ``thinks should be prosecuted.''
At the hearing, I asked Deputy Attorney General Holder if he could
identify ``any specific instances in which State law enforcement
authorities have deliberately failed to enforce the law against the
perpetrator of a crime.'' I asked him a specific question, to give me
any specific instances in which State law enforcement authorities have
deliberately failed to enforce the law against the perpetrator of a
crime.
I went further and I asked him, ``So the question is, can you give me
specific instances where the States have failed in their duty to
investigate and prosecute hate crimes.'' Deputy Attorney General Holder
responded with only a handful of specific instances--and they were not
instances where the State or local authorities refused to act but
instances where the Justice Department felt that it would have tried
the case differently or sought a harsher sentence, or where the Justice
Department was not pleased with the verdict that State prosecutors
obtained. The few cases Holder identified generally were not cases
where State officials abdicated their responsibility to investigate and
prosecute hate-motivated crimes.
I have to believe there may be some such cases, but the ones Mr.
Holder identified were not persuasive. They did not show any widespread
pattern of State and local authorities refusing or failing to
investigate and prosecute hate crimes. I am happy to receive them from
my distinguished friend from Massachusetts, and I am sure he may be
able to cite some. Are there so many of them that we justify
federalizing all hate crimes and dipping the Federal nose into
everything that is done on the State and local levels? I don't know--in
my mind, the case for doing so has not yet been made.
Deputy Attorney General Holder also testified that no hate crimes
legislation is worthwhile if it is invalidated as unconstitutional. It
would be one thing if we were talking about a Supreme Court case that
was decided 100 years ago. We are talking about a case, however, the
Morrison case, that was decided one month ago and invalidates exactly
what Senator Kennedy is doing today. If we find out that States are
refusing to prosecute hate crimes, then we would be justified under the
14th amendment in enacting legislation directed at State officials or
people acting under color of law who are denying victims of hate crimes
the equal protection of the laws. If that were shown, then we would be
justified, especially if such conduct were pervasive, or especially if
there were a considerable number of cases where State officials were
denying the equal protection of the laws by refusing to prosecute
crimes committed against certain groups or classes of people. The
supporters of the Kennedy amendment, I have to believe, will be able to
come up with one, or two, or maybe three cases where State officials
denied the equal protection of the laws in this manner. But even if
then can, would that justify federalizing all hate crimes?
Mr. President, 95 percent of all criminal activity is prosecuted in
State and local jurisdictions--95 percent. There are good reasons for
that. Frankly, they do every bit as good a job as Federal prosecutors
do.
But if you put in ``gender,'' as Senator Kennedy does in his
amendment, then every rape or assault becomes a Federal crime. I can
just hear some of the very radical groups demanding that U.S. attorneys
in Federal court bring cases in every rape case because every rape, in
my opinion, is a hate crime.

[[Page S5350]]

However, there is no evidence that the States are not handling those
sorts of cases properly. They may be in a better position to handle
them well. It may be that the federal government needs to provide
enough money, so that as a backup, the DNA postconviction and even
preconviction DNA testing can be conducted and we can see that justice
is done.
I am not unwilling to consider doing that. In fact, I am considering
doing just that. I take no second seat to any Senator in this Chamber
in the desire to get rid of hate crimes. But I do think you have to be
wise and you can't just emotionally do it because you want to
federalize things and you want to get control of them, when, in fact,
the State and local governments are doing a fairly decent job. If they
are not, that is another matter. I want to see the statistics. That is
one reason I want a study, an analysis of these matters, so that we can
know.

Senator Kennedy and I fought on this very floor for the Hate Crimes
Statistics Act. I have taken a lot of abuse through the years for
having done so by some on the conservative side, and by some on the
liberal side for not doing more. We have the statistics. We have a
pretty good idea that these crimes are being committed. We just haven't
got an analysis, nor do we have the facts, on whether the States are
doing an adequate job of combating these crimes. And why should we go
blundering ahead, federalizing all these crimes, when we are not really
sure that the State and local governments are not doing a good job. In
fact, the evidence I have seen appears to show that the States are
taking their responsibilities in this area seriously.
My amendment does a lot. It calls for a study to determine whether
these hate-motivated crimes are not being prosecuted at the State level
in the manner that they should be. There are those in our body who even
fight against that. I am talking about the Congress as a whole. I hope
there is nobody in the Senate who would fight against that. We should
do an analysis and a study. We should know. We have the statistics.
I do want to clear up one thing. The Department of Justice did send
up a handful of cases in which the Department felt the result in hate
crime litigation was inadequate. But the very few cases they identified
in no way justify this type of expansive legislation. That is what I am
concerned about.
Now, if we find that the States are refusing to do their jobs, that
is another matter. We would be justified under the equal protection
clause of the 14th amendment to enact remedial legislation prohibiting
the States from denying our citizens the equal protection of the laws
by refusing or failing to combat hate crimes.
Supporters of the Kennedy amendment argue that their amendment is
limited because the Justice Department could exercise jurisdiction only
in four instances. Supporters of the Kennedy amendment call these
instances ``exceptions''--as in the Justice Department will not
exercise jurisdiction over State prosecutions of hate crimes,
``except'' when one of the four circumstances outlined in the amendment
is present. But these so-called ``exceptions'' to the exercise of
federal jurisdiction are exceptions that swallow the rule.
The Kennedy amendment raises serious constitutional decisions or
questions. The amendment is not consistent with the Supreme Court's
decisions in United States v. Lopez and United States v. Morrison, just
decided last month. The amendment attempts to federalize crimes
committed because of the victim's actual or perceived race, color,
religion, national origin, gender, sexual orientation, or disability.
Last month's Supreme Court decision in United States v. Morrison
changed the legal landscape with regard to congressional power vis-a-
vis the States. In light of the Morrison decision, we first should take
adequate steps to ensure that legislation is constitutional. And where
serious constitutional questions are raised, we should responsibly
pursue less intrusive alternatives. In the case of hate crimes
legislation, we should at least determine whether a broad
federalization of these crimes is needed, and whether a broad
federalization of these crimes would be constitutional in light of
Morrison. What may have been constitutional in our minds pre-Morrison
may not be constitutional today.
I was the primary cosponsor of the Violence Against Women Act. It may
never have come up had Senator Biden and I not pushed it as hard as we
did. I believed it was constitutional at the time, or I wouldn't have
done it. But it clearly was stricken as unconstitutional by the Supreme
Court.
As the father of three daughters and a great number of
granddaughters, I certainly want women protected in our society. If the
State and local governments are not doing that, I will find some way. I
think perhaps Senator Kennedy, I, and others of good faith can find
some way of making sure that these wrongs are righted.
But Congress has a duty to make sure that legislation it enacts is
constitutional. Justice Scalia, as I stated earlier, recently
criticized Congress for failing to consider whether legislation is
constitutional before enacting it. Here is what he said:

My court is fond of saying that acts of Congress come to
the court with the presumption of constitutionality. But if
Congress is going to take the attitude that it will do
anything it can get away with, and let the Supreme Court
worry about the Constitution [let the Supreme Court worry]
perhaps the presumption is unwarranted.

He is saying that we have a constitutional obligation to live within
the constraints of the Constitution. Although Morrison was a 5-4
decision, as many important decisions are, it is the supreme law of
this land. And the Kennedy approach is unconstitutional.

It is unconstitutional because under the 14th amendment it seeks to
criminalize purely private conduct. In the Morrison case, the Supreme
Court reaffirmed that legislation enacted by Congress under the 14th
Amendment may only criminalize State action, not individual action. So
it really is unconstitutional from that standpoint, from the standpoint
of the 14th Amendment.
In addition, the Kennedy amendment is unconstitutional under the
commerce clause. In Morrison, the Supreme Court emphasized that the
conduct regulated by Congress under the commerce clause must be ``some
sort of economic endeavor. Here, the conduct sought to be regulated--
the commission of hate crimes--is in no sense economic or commercial,
but instead is non-economic and criminal in nature. Accordingly, it is
just like the non-economic conduct Congress sought to regulate in the
Gun Free Schools Zones Act and the Violence Against Women Act--statutes
held to be unconstitutional in Lopez and Morrison.
In an effort to be constitutional, the Kennedy amendment provides
that federal jurisdiction can only be exercised in four circumstances
where there is some sort of link to interstate commerce. These
circumstances, however, probably do not make the amendment
constitutional.
First, the interstate travel circumstance set forth in the Kennedy
amendment arguably may provide an interstate nexus, but it does nothing
to change the criminal, generally non-economic nature of a hate crime.
The same can be said for the other circumstances set forth in the
Kennedy amendment authorizing the exercise of federal jurisdiction. The
second circumstance's requirement, that the crime be committed by using
a ``channel, facility or instrumentality of interstate'' commerce, also
may provide a interstate nexus, but it is unclear precisely what hate
crimes that would encompass: hijacking a plane or blowing up a rail
line in connection with a hate crime? Such occurrences, if happening at
all, surely are so infrequent as to make the Kennedy amendment
unnecessary. And I might add, in these cases they have been prosecuted
by state and local officials who have the right and power to do so. So
there seems little or no reason to want the Kennedy amendment on that
basis. But without some economic activity, it still makes you wonder.
The third circumstance's requirement that the defendant have used a
weapon that traveled in interstate commerce would eviscerate the limits
on commerce clause authority the Court stressed in Lopez and Morrison.
If using a weapon that happened to have traveled in interstate commerce
to commit a hate crime provides a sufficient interstate nexus
authorizing congressional action federalizing hate

[[Page S5351]]

crimes, then by the same logic Congress could federalize essentially
all State crimes where a firearm or other weapon is used. And that
would include most homicides had assault cases.
The fourth circumstance's requirement that the victim be working and
that the hate crime interfere with such working is analogous to the
reasoning the Court rejected in Morrison. In Morrison, the Court
rejected the argument that gender-motivated violence substantially
affects interstate commerce. It can only be presumed that the Court
would similarly conclude that violence motivated by disability,
sexual orientation or gender--again--does not substantially affect
interstate commerce. The Court in Morrison and in Lopez rejected these
``costs of crime'' and ``national productivity'' arguments because they
would permit Congress to regulate not only all violent crime, but all
activities that might lead to violent crime, regardless of how
tenuously they relate to interstate commerce.

Finally, the Kennedy amendment's catch-all provision--that federal
prosecution is permitted where the hate crime ``otherwise affects
interstate or foreign commerce''--not only merely restates the
constitutional test, it restates it wrongly. Under Lopez and Morrison,
the conduct sought to be regulated under the commerce clause must
``substantially affect'' interstate commerce. The Kennedy amendment
provides for a much lower standard.
With regard to the first amendment, the Kennedy amendment also has
the potential to have a chilling effect on constitutionally protected
speech. Under the amendment, the Federal Government could obtain a
criminal conviction on the basis of evidence of speech that had no role
in the chain of events that led to any alleged violent act proscribed
by the statute. Evidence that a person holds racist or other bigoted
views that are unrelated to the underlying crime cannot form the basis
for a prosecution--otherwise the statute would be unconstitutional
under the first amendment.
The Kennedy hate crimes amendment is also bad policy. It would place
significant burdens on federal law enforcement and Federal courts,
undermine State sentencing regimes, and unduly interfere with State
prosecution of violent crime.
The Kennedy amendment prohibits hate crimes based upon the victims
gender. I mentioned this earlier. Accordingly, the amendment, on its
face, could effectively federalize all rapes and sexual assaults. Not
only would such a statute likely be unconstitutional, it also would be
bad policy. Seizing the authority to investigate and prosecute all
incidents of rape and sexual assault from the States could impose a
huge burden on Federal law enforcement agencies, Federal prosecutors,
and the federal judiciary.
I know that the Supreme Court is very concerned about the
proliferation of federal crimes, as are all Federal courts in our
country. They think we federalize far too many laws when, in fact, the
States are doing a good job in prosecuting those crimes. And there is
little or no reason for us to intrude that much on State laws when they
are doing a good job.
Authorities in Jasper, TX, secured a death penalty against the
murderers of James Byrd, Jr., without either State or Federal hate
crimes legislation. In contrast, the Kennedy amendment does not provide
for the death penalty, even in the case of the most heinous hate
crimes. Under the Kennedy amendment, then, a State could prosecute the
same criminal acts more harshly than under the Kennedy hate crimes
amendment. As a result, the Kennedy amendment would provide a lesser
deterrent against hate-based criminal conduct.
If there was ever a case justifying the death penalty, it certainly
was the case of James Byrd, Jr. But then again it makes my point. The
State and local prosecutors were fully capable of taking care of this
matter. And why should we intrude the Federal Government's unwanted
nose under the tent in this matter when the States are perfectly
capable of taking care of these matters.
The Kennedy amendment also would unduly interfere with state
prosecutions of hate crimes. Contrary to claims by supporters of the
Kennedy amendment, the amendment would not defer to State or local
authorities at all. The amendment leaves the Justice Department free to
insert itself in a local prosecution at the beginning, middle or end of
the prosecution, and even after the local prosecutor has obtained a
guilty verdict.
Even if State or local authorities inform the federal government that
they intend to prosecute the case and object to Federal interference,
the Justice Department, nevertheless, is empowered by the amendment to
exert enormous pressure on local prosecutors regarding the manner in
which they handle the case, from charging decisions to plea bargaining
decisions to sentencing decisions. In essence, the federal government
can always exercise jurisdiction under the Kennedy amendment. And in so
doing, the Kennedy amendment works an unwarranted expansion of federal
authority to prosecute defendants--even when a competent State
prosecution is available.
In my view, hate crimes can be more sinister than non-hate crimes. A
crime committed not only to harm an individual, but out of the motive
of sending a message of hatred to an entire community--often a
community that historically has been the subject of prejudice or
discrimination--is appropriately punished more harshly or in a
different manner than other crimes.
In Wisconsin versus Mitchell, the Supreme Court essentially agreed
that the motive behind the crime can make the crime more sinister and
more worthy of harsher punishment. In that case, the Court upheld the
State of Wisconsin's sentencing enhancement for hate crimes.
There is a limited role for the federal government to play in
combating hate crime. The federal government can assist State and local
authorities in investigating and prosecuting hate crimes. In addition,
the Hate Crimes Statistics Act of 1990, which I sponsored, provides for
the nationwide collection of data regarding hate crimes.
Because I believe there is a federal role to play, I have introduced
legislation, held hearings, and am offering this amendment today. The
Federal government has a responsibility to help States and local
governments solve our country's problem of hate-motivated crime.
But for a federal response to be meaningful, it must abide by the
limitations imposed on Congress by the constitution, as interpreted by
the Supreme Court. This is especially true today in light of the
Supreme Court's decisions in Lopez and Morrison, which emphasized that
there are limits on congressional power. The Morrison case was decided
just last month and changed the legal landscape regarding congressional
power in relation to the States.
We should be concerned, as the Supreme Court is, about the
proliferation of companion Federal crimes in areas where State criminal
statutes are sufficient. The Kennedy amendment would vastly expand the
power and jurisdiction of the Federal Government to intervene in local
law enforcement matters.
Repeatedly, supporters of the Kennedy amendment have argued the State
and local authorities are either ``unable or unwilling'' to investigate
the prosecute hate crimes. Let's examine this rationale closely.
First, the argument that State and local authorities are unable to
get serious about hate crimes: I do not dispute that in certain cases
the resources of local jurisdictions may be inadequate. We can solve
that. But that cannot mean that we therefore should federalize these
crimes. That soft-headed logic would lead us to argue that because
State and local resources are inadequate to, for example, educate our
young people in some parts of the country, then the Federal Government
should conduct a nationwide takeover of elementary and secondary
education. That, of course, would be the wrong solution. The right
solution to a problem involving inadequate resources at the local level
is to try to provide some Federal assistance where requested and where
needed. That is what my amendment does.
If it is not enough money, then let's beef up the money. That is what
my amendment does. It provides the monetary means whereby we can assist
the States if they do not have the money to investigate and prosecute
hate-motivated crimes. With regard to postconviction DNA evidence, it
may mean we have to do more from a Federal Government standpoint.

[[Page S5352]]

Second, I have even more difficulty stomaching the second argument
put forth by supporters of the Kennedy amendment, that State and local
authorities are unwilling to get serious about hate crimes. I admit
that I am not certain what the supporters of the Kennedy amendment mean
when they say ``unwilling.'' I assume that we all understand and
appreciate that in numerous cases State and local officials are
unwilling to go forward because the evidence does not warrant going
forward. Supporters of the Kennedy amendment cannot possibly mean to
cover all of these cases. So what do they mean? A subset of these
cases? Does the Federal Government intend to review every case where
local officials fail to go forward, second guess their judgments, and
then pick and chose on which of those cases they want to proceed? The
true answer is that no one knows what supporters of the Kennedy
amendment mean when they claim that States are ``unwilling'' to deal
with hate crimes.
If we want to act responsibly and sensibly, we ought to do what I
suggest in my amendment--(1) conduct a comprehensive analysis of
whether there, in fact, is unwillingness at the local level in the
handling of crimes motivates against persons because of their
membership in a particular class or group and (2) provide some grant
monies to States who may lack resources.
The amendment I have offered does not go as far as legislation I have
offered in the past, but this is not because I do not believe that hate
crimes are not a problem. Rather, it is because the Supreme Court has
ruled as recently as a month ago in this area, and I do not think we
can ignore that. The recent decision in Morrison requires that we step
back and prudently assess whether legislation like the Kennedy
amendment would pass constitutional muster, and I think more than an
overwhelming case can be made that it does not.
Let's assume that if this amendment is ultimately adopted, and 2 or 3
years from now the Supreme Court decides the case based upon that
amendment, and I am right and the Kennedy amendment is overturned, that
means we are 3 more years down the line unable to do anything about
hate crimes in our society when, if we do the appropriate analysis and
get the information and do not walk in there emotionally, and try to
give the State and local governments the monetary support and the other
types of support we describe in our amendment, we could start tomorrow
combating hate crimes at the federal level. The day my amendment is
passed doing something about hate crimes, that will really be
substantial and will work. It is a throw of the dice if we adopt the
Kennedy amendment and that becomes law because I do not believe it can
be possibly upheld by the Supreme Court in light of current
constitutional law.
My amendment is very limited and does not raise the constitutional
questions raised by the Kennedy amendment. At the same time, it
provides for Federal assistance to State and local authorities in
combating hate crimes.
With regard to both amendments, I find no fault at all--in fact, I
commend my distinguished colleague from Massachusetts, my friend from
Oregon, and others who are pushing the Kennedy amendment because they
believe something has to be done about hate crimes in our society. I
find no fault with that. In fact, I admire them for doing that. I find
no fault with people trying to write laws, but I do believe we can be 3
years down the line and lose all that time in making headway against
hate criminal activity in our society.
Where, if we do it right today and do it in a constitutionally sound
way, as my amendment does, then we will have truly accomplished
something. Perhaps we can get together and find some way of doing this
so it brings everybody together; I would like to see all civil rights
bills, all bills that involve equal protection under the laws pass
unanimously, if we can. I want to work to that end.
I pledge to work with my colleagues from Massachusetts, Oregon,
Vermont, and others in this body in trying to get us there. We are all
after the same thing, and that is to have a better society so that
people realize there are laws by which they have to live, that there
are moral laws by which they should live, and that people realize this
society has been a great society and will continue to be, the more we
are concerned about our fellow men and women and equality under the
law.
We differ on the ways to get there at this point. Maybe we can get
together and find some way of resolving the differences. I find no
fault with my colleagues, other than that I think Morrison is so clear,
and it was decided only a month ago. I do find fault in that sense, to
push an amendment probably is unconstitutional.
I find no fault with the motivations behind those supporting the
Kennedy amendment. In fact, I am very proud of my colleagues for
wanting to do something in this area, to make a difference in our
society and help our society be even better. I commend them and thank
them for their efforts in that regard, but I do think we ought to do it
in a constitutional way. I do think we ought to do it in a thoughtful
way. I do think we ought to do it in an analytical way. I do think we
ought do it in a way that will bring people together, not split them
apart. And I do think we ought to do it in a way that will help State
and local prosecutors, rather than Federal prosecutors, to handle these
cases in manners that are proper and acceptable in our society. I do
think it ought to be done in a way that does not burden our Federal
courts with a plethora of cases, in addition to the drug cases
burdening our courts today, when State and local governments are
totally capable of taking care of it, perhaps with some monetary
assistance from the Federal Government.
I look forward to finding a way whereby Senator Leahy and I and
others can get together to resolve these problems of postconviction DNA
testing because regardless of where one stands on the death penalty,
for or against it, that is not the issue. The issue is justice, and
that is what the issue is here as well.
Does anyone in this body think I like opposing this amendment? I
don't think so. I have stood up on too many of these matters for them
to think that. But defending the Constitution is more important to me
than ``feeling good'' about things or just ``feeling emotional'' about
things. I do feel emotionally about hate crimes. I do want to stamp
them out. I do want to get rid of them. I want to start now, not 3
years from now when we have to start all over again because the Court
rules that the Kennedy amendment is unconstitutional.
I have taken enough time. I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, on tomorrow we will have the opportunity
to choose between the proposal of the Senator from Utah and the
amendment Senator Smith and I are recommending to our colleagues.
When it is all said and done, as I mentioned earlier, the proposal
that has been put forward by my friend and colleague from Utah is
basically to conduct a study about the problems and frequency of hate
crimes, permits up to $5 million in authorization, and permits the
Justice Department to provide grants for prosecution. That is really
the extent of the amendment of the Senator from Utah.
He has outlined his reasons for supporting that particular approach.
I heard him say earlier he believes that it is really going to solve
the problem and that it is going to really deal with the issue of hate
crimes. Of course, I do not believe that to be the case.
We reviewed this issue on a number of different occasions in the
Judiciary Committee. I understand his position. I respect it, although
I do have some difficulties in being persuaded by it this evening.
For example, he basically has not questioned the existing limited
hate crimes legislation that is on the books, 18 U.S.C. Sec. 245,
dealing with the issue of race, color, religion, and national origin in
our society, even though it is restricted in its application. He did
not say we ought to eliminate that situation. He did not really refer
to eliminating current hate crimes law.
The fact is, we have very limited hate crimes legislation on the
books. Current law is restricted, as the Justice Department testified
before the Judiciary Committee, in ways that virtually deny
accountability for the serious hate crimes that are committed by
individuals on the basis of race, color,

[[Page S5353]]

religion, or national origin in our society. Specifically, it requires
the federal government to prove that the victim was engaged in a
federally protected activity during the commission of the crime. We are
trying to address this deficiency and to expand current law to include
gender, disability, and sexual orientation.
Those of us who will favor our position tomorrow believe the ultimate
guarantor of the right for privacy, liberty, and individual safety and
security in our society is the Constitution of the United States. That
is where the repository for protecting our rights and our liberties is
enshrined. It is enshrined in the Constitution, as interpreted by the
Supreme Court. But ultimately we are the ones who help define the
extent of the Constitution's protection.
When we find that we have inadequate protection for citizens because
of sexual orientation, or gender, or race, that challenge cries out for
us to take action.
My good friend from Utah does not mind federalizing class action
suits to bring them into the Federal court. He does not mind
federalizing property issues in the takings legislation, to bring those
into Federal court. For computer fraud, he does not mind bringing those
crimes in Federal courts. But do not bring in Federal power to do
something about hate crimes. I find that absolutely extraordinary.
Why are we putting great protection for property rights and computer
fraud and class actions into Federal court, giving them preference over
doing something about the problems of hate crimes in our society that
even Senator Hatch admits are taking place? We see from the data
collected by the FBI and various studies that hate crimes are taking
place. That is a fact. Look at the statistics that have been collected
over the last few years, from 1995 through 1998. We see what is
happening with regard to race, religion, national origin, ethnic
background, sexual orientation, and disability. As we have heard from
the FBI and the Justice Department, they believe the FBI statistics
vastly underestimate what is happening in our society.

The fact is, hate crimes are unlike any other crimes. Listening to
the discussion of those who are opposed to our amendment, one would
think these crimes were similar to pick-pocketing cases, misdemeanors,
or traffic violations.
The kind of impact that hate crimes have in terms of not only the
individual but the community is well understood. It should be well
understood by communities and individuals. I do not have to take the
time to quote what the American Psychological Society says about the
enduring kind of burden that individuals undergo when they have been
the victims of hate crimes over the course of their lifetime, even in
contrast to other crimes of violence against individuals. It has a
different flavor, and it has an impact on the victim, the family and
the community. Hate crimes are an outrageous reflection of bigotry and
hatred based on bias that cannot be tolerated in our society.
We have an opportunity to take some moderate steps to do something
about it--to untie the hands of the Department of Justice. That is what
tomorrow's vote is about. We have the constitutional authorities on our
side, including the Justice Department, and others.
I will include the list of distinguished constitutional authorities
that are supporting our positions.
Mr. President, I ask unanimous consent that the U.S. Department of
Justice letter dated June 13, 2000, on the constitutionality of the
Local Law Enforcement Enhancement Act of 2000 be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

U.S. Department of Justice,

Office of Legislative Affairs,

Washington, DC, June 13, 2000.
Hon. Edward Kennedy,
U.S. Senate, Washington, DC.
Dear Senator Kennedy: This letter responds to your request
for our views on the constitutionality of a proposed
legislative amendment entitled the ``Local Law Enforcement
Enhancement Act of 2000.'' Section 7(a) of the bill would
amend title 18 of the United States Code to create a new
Sec. 249, which would establish two criminal prohibitions
called ``hate crime acts.'' First, proposed Sec. 249(a)(1)
would prohibit willfully causing bodily injury to any person,
or attempting to cause bodily injury to any person through
the use of fire, a firearm, or an explosive or incendiary
device, ``because of the actual or perceived race, color,
religion, or national origin of any person.'' Second,
proposed Sec. 249(a)(2) would prohibit willfully causing
bodily injury to any person, or attempting to cause bodily
injury to any person through the use of fire, a firearm, or
an explosive or incendiary device, ``because of the actual or
perceived religion, national origin, gender, sexual
orientation, or disability of any person,''
Sec. 249(a)(2)(A), but only if the conduct occurs in at least
one of a series of defined ``circumstances'' that have an
explicit connection with or effect on interstate or foreign
commerce, Sec. 249(a)(2)(B).
In light of United States v. Morrison, 120 S. Ct. 1740
(2000), and other recent Supreme Court decisions, defendants
might challenge the constitutionality of their convictions
under Sec. 249 on the ground that Congress lacks power to
enact the proposed statute. We believe, for the reasons set
forth below, that the statute would be constitutional under
governing Supreme Court precedents. We consider in turn the
two proposed new crimes that would be created in Sec. 249.

1. proposed 18 u.s.c. Sec. 249(a)(1)

Congress may prohibit the first category of hate crime acts
that would be proscribed--actual or attempted violence
directed at persons ``because of the[ir] actual or perceived
race, color, religion, or national origin,'' Sec. 249(a)(1)--
pursuant to its power to enforce the Thirteenth Amendment to
the United States Constitution. Section 1 of that amendment
provides, in relevant part, ``[n]either slavery nor
involuntary servitude . . . shall exist within the United
States.'' Section 2 provides, ``Congress shall have power to
enforce this article by appropriate legislation.''
Under the Thirteenth Amendment, Congress has the authority
not only to prevent the ``actual imposition of slavery or
involuntary servitude,'' but to ensure that none of the
``badges and incidents'' of slavery or involuntary servitude
exists in the United States, Griffin v. Breckinridge, 403
U.S. 88, 105 (1971); see Jones v. Alfred H. Mayer Co., 392
U.S. 409, 440-43 (1968) (discussing Congress's power to
eliminate the ``badges,'' ``incidents,'' and ``relic[s]'' of
slavery). `` `Congress has the power under the Thirteenth
Amendment rationally to determine what the badges and
incidents of slavery, and the authority to translate that
determination into effective legislation.' '' Griffin, 403
U.S. at 105 (quoting Jones, 392 U.S. at 440); see also Civil
Rights Cases, 109 U.S. 3, 21 (1883) (``Congress has a right
to enact all necessary and proper laws for the obliteration
and prevention of slavery, with all its badges and
incidents''). In so legislating, Congress may impose
liability not only for state action, but for ``varieties of
private conduct,'' as well. Griffin, 403 U.S. at 105.
Section 2(10) of the bill's findings provides, in relevant
part, that ``eliminating racially motivated violence is an
important means of eliminating, to the extent possible, the
badges, incidents, and relics of slavery and involuntary
servitude,'' and that ``[s]lavery and involuntary servitude
were enforced . . . through widespread public and private
violence directed at persons because of their race.'' So long
as Congress may rationally reach such determinations--and we
believe Congress plainly could--the prohibition of racially
motivated violence would be a permissible exercise of
Congress's broad authority to enforce the Thirteenth
Amendment.
That the bill would prohibit violence against not only
African Americans but also persons of other races does not
alter our conclusion. While it is true that the institution
of slavery in the United States, the abolition of which was
the primary impetus for the Thirteenth Amendment, primarily
involved the subjugation of African Americans, it is well-
established by Supreme Court precedent that Congress's
authority to abolish the badges and incidents of slavery
extends ``to legisla[tion] in regard to `every race and
individual.' '' McDonald v. Santa Fe Trail Transp. Co., 427
U.S. 273, 288 n.18 (1976) (quoting Hodges v. United States,
203 U.S. 1, 16-17 (1906), and citing Jones v. Alfred H. Mayer
Co., 392 U.S. 409, 441 n.78 (1968)). In McDonald, for
example, the Supreme Court held that 42 U.S.C. Sec. 1981,
a Reconstruction-era statute that was enacted pursuant to,
and contemporaneously with, the Thirteenth Amendment,
prohibits racial discrimination in the making and
enforcement of contracts against all persons, including
whites.--See McDonald, 427 U.S. at 286-96.
The question whether Congress may prohibit violence against
persons because of their actual or perceived religion or
national origin is more complex, but there is a substantial
basis to conclude that the Thirteenth Amendment grants
Congress that authority, at a minimum, with respect to some
religions and national origins. In Saint Francis College v.
Al-Khazraii, 481 U.S. 604, 613 (1987), the Court held that
the prohibition of discrimination in Sec. 1981 extends to
discrimination against Arabs, as Congress intended to protect
``identifiable classes of persons who are subjected to
intentional discrimination solely because of their ancestry
or ethnic characteristics.'' Similarly, the Court in Shaare
Tefila Congregation v. Cobb, 481 U.S. 615, 617-18 (1987),
held that Jews can state a claim under 42 U.S.C. Sec. 1982,
another Reconstruction-era antidiscrimination statute enacted
pursuant to, and contemporaneously

[[Page S5354]]

with, the Thirteenth Amendment. In construing the reach of
these two Reconstruction-era statutes, the Supreme Court
found that Congress intended those statutes to extend to
groups like ``Arabs'' and ``Jews'' because those groups
``were among the peoples [at the time the statutes were
adopted] considered to be distinct races.'' Id.; see also
Saint Francis College, 481 U.S. at 610-13. We thus believe
that Congress would have authority under the Thirteenth
Amendment to extend the prohibitions of proposed
Sec. 249(a)(1) to violence that is based on a victim's
religion or national origin, at least to the extent the
violence is directed at members of those religions or
national origins that would have been considered races at the
time of the adoption of the Thirteenth Amendment.
None of the Court's recent federalism decisions casts doubt
on Congress's powers under the Thirteenth Amendment to
eliminate the badges and incidents of slavery. Both Boerne v.
Flores, 521 U.S. 507 (1997), and United States v. Morrison,
120 S. Ct. 1740 (2000), involved legislation that was found
to exceed Congress's powers under the Fourteenth Amendment.
The Court in Morrison, for example, found that Congress
lacked the power to enact the civil remedy of the Violence
Against Women Act (``VAWA''), 42 U.S.C. Sec. 13981, pursuant
to the Fourteenth Amendment because that amendment's equal
protection guarantee extends only to ``state action,'' and
the private remedy there was not, in the Court's view,
sufficiently directed at such ``state action.'' 120 S. Ct. at
1756, 1758. The Thirteenth Amendment, however, plainly
reaches private conduct as well as government conduct, and
Congress thus is authorized to prohibit private action that
constitutes a badge, incident or relic of slavery. See
Griffin, 403 U.S. at 105; Jones, 392 U.S. at 440-43.
Enactment of the proposed Sec. 249(a)(1) therefore would be
within Congress's Thirteenth Amendment power.

2. Proposed 18 U.S.C. Sec. 249(a)(2)

Congress may prohibit the second category of hate crime
acts that would be proscribed--certain instances of actual or
attempted violence directed at persons ``because of the[ir]
actual or perceived religion, national origin, gender, sexual
orientation, or disability,'' Sec. 249(a)(1)(A)--pursuant to
its power under the Commerce Clause of the Constitution, art.
I., Sec. 8, cl. 3.
The Court in Morrison emphasized that ``even under our
modern, expansive interpretation of the Commerce Clause,
Congress' regulatory authority is not without effective
bounds.'' 120 S. Ct. at 1748; See also United States v.
Lopez, 514 U.S. 549, 557-61 (1995). Consistent with the
Court's emphasis, the prohibitions of proposed Sec. 249(a)(2)
(in contrast to the provisions of proposed Sec. 249(a)(1),
discussed above), would not apply except where there is an
explicit and discrete connection between the proscribed
conduct and interstate or foreign commerce, a connection that
the government would be required to allege and prove in each
case.
In Lopez, the Court considered Congress's power to enact a
statute prohibiting the possession of firearms within 1000
feet of a school. Conviction for a violation of that statute
required no proof of a jurisdictional nexus between the gun,
or the gun possession, and interstate commerce. The statute
included no findings from which the Court could find that the
possession of guns near schools substantially affected
interstate commerce and, in the Court's view, the possession
of a gun was not an economic activity itself. Under these
circumstances, the Court held that the statute exceeded
Congress's power to regulate interstate commerce because the
prohibited conduct could not be said to ``substantially
affect'' interstate commerce. Proposed Sec. 249(a)(2), by
contrast to the statute invalidated in Lopez, would require
pleading and proof of a specific jurisdictional nexus to
interstate commerce for each and every offense.
In Morrison, the Court applied its holding in Lopez to find
unconstitutional the civil remedy provided in VA WA, 42
U.S.C. Sec. 13981. Like the prohibition of gun possession in
the statute at issue in Lopez, the VA WA civil remedy
required no pleading or proof of a connection between the
specific conduct prohibited by the statute and interstate
commerce. Although the VA WA statute was supported by
extensive congressional findings of the relationship between
violence against women and the national economy, the Court
was troubled that accepting this as a basis for legislation
under the Commerce Clause would permit Congress to regulate
anything, thus obliterating the ``distinction between what is
truly national and what is truly local.'' Morrison, 120 S.
Ct. at 1754 (citing Lopez, 514 U.S. at 568). By contrast, the
requirement in proposed Sec. 249(a)(2) of proof in each case
of a specific nexus between interstate commerce and the
proscribed conduct would ensure that only conduct that falls
within the Commerce power, and thus is ``truly national,''
would be within the reach of that statutory provision.
The Court in Morrison emphasized, as it did in Lopez, 514
U.S. at 561-62, that the statute the Court was invalidating
did not include an ``express jurisdictional element,'' 120 S.
Ct. at 1751, and compared this unfavorably to the criminal
provision of VA WA, 18 U.S.C. Sec. 2261(a)(1), which does
include such a jurisdictional nexus. See id. at 1752 n.5. The
Court indicated that the presence of such a jurisdiction
nexus. See id. at 1752 n.5. The Court indicated that the
presence of such a jurisdictional nexus would go far towards
meeting its constitutional concerns:
``The second consideration that we found important in
analyzing [the statute in Lopez] was that the statute
contained ``no express jurisdictional element which might
limit its reach to a discrete set of firearm possessions that
additionally have an explicit connection with or effect on
interstate commerce.'' [514 U.S.] at 562. Such a
jurisdictional element may establish that the enactment is in
pursuance of Congress' regulation of interstate commerce.''
Id. at 1750-51; see also id. at 1751-52 (``Although Lopez
makes clear that such a jurisdictional element would lend
support to the argument that [the provision at issue in
Morrison] is sufficiently tied to interstate commerce,
Congress elected to cast [the provision's] remedy over a
wider, and more purely intrastate, body of violent crime.'')
While the Court in Morrison stated that Congress may not
``regulate noneconomic, violent criminal conduct based solely
on that conduct's aggregate effect on interstate commerce,''
id. at 1754, the proposed regulation of violent conduct in
Sec. 249(a)(2) would not be based ``solely on that conduct's
aggregate effect on interstate commerce,'' but would instead
be based on a specific and discrete connection between each
instance of prohibited conduct and interstate or foreign
commerce. Specifically, with respect to violence because of
the actual or perceived religion, national origin, gender,
sexual orientation or disability of the victim, proposed
Sec. 249(a)(2) would require the government to prove one or
more specific jurisdictional commerce ``elements'' beyond a
reasonable doubt. This additional jurisdictional requirement
would reflect Congress's intent that Sec. 249(a)(2) reach
only a ``discrete set of [violent acts] that additionally
have an explicit connection with or effect on interstate
commerce,'' 120 S. Ct. at 1751 (quoting Lopez, 514 U.S. at
562), and would fundamentally distinguish this statute from
those that the Court invalidated in Lopez and in Morrison.
Absent such a jurisdictional element, there exists the risk
that ``a few random instances of interstate effects could be
used to justify regulation of a multitude of intrastate
transactions with no interstate effects.'' United States v.
Harrington, 108 F.3d 1460, 1467 (D.C. Cir. 1997). By
contrast, in the context of a statute with an interstate
jurisdictional element (such as in proposed
Sec. 249(a)(2)(B)), ``each case stands alone on its evidence
that a concrete and specific effect does exist.''
The jurisdictional elements in Sec. 249(a)(2)(B) would
ensure that each conviction under Sec. 249(a)(2) would
involve conduct that Congress has the power to regulate under
the Commerce Clause. In Morrison, the Court reiterated its
observation in Lopez that there are `` `three broad
categories of activity that Congress may regulate under its
commerce power.' '' 120 S. Ct. at 1749 (quoting Lopez, 514
U.S. at 558):
``First, Congress may regulate the use of the channels of
interstate commerce. . . . Second, Congress is empowered to
regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even
though the threat may come only from intrastate activities. .
. . Finally, Congress' commerce authority includes the power
to regulate those activities having a substantial relation to
interstate commerce, . . . i.e., those activities that
substantially affect interstate commerce.''--Id. (quoting
Lopez, 514 U.S. at 558-59).
Proposed Sec. 249(a)(2)(B)(i) would prohibit the violent
conduct described in Sec. 249(a)(2)(A) where the government
proves that the conduct ``occurs in the course of, or as the
result of, the travel of the defendant or the victim (a)
across state lines or national borders, or (b) using a
channel, facility, or instrumentality of interstate or
foreign commerce.'' A conviction based on such proof would be
within Congress's powers to ``regulate the use of the
channels of interstate commerce,'' and to ``regulate and
protect . . . persons or things in interstate commerce.''
Proposed Sec. 249(a)(2)(B)(ii) would prohibit the violent
conduct described in Sec. 249(a)(2)(A) where the government
proves that the defendant ``uses a channel, facility or
instrumentality of interstate or foreign commerce in
connection with the conduct''--such as sending a bomb to the
victim via common carrier--and would fall within the power of
Congress to ``regulate the use of the channels of interstate
commerce'' and ``to regulate and protect the
instrumentalities of interstate commerce.''
Proposed Sec. 249(a)(2)(B)(iii) would prohibit the violent
conduct described in Sec. 249(a)(2)(A) where the government
proves that the defendant ``employs a firearm, explosive or
incendiary device, or other weapon that has traveled in
interstate or foreign commerce in connection with the
conduct.'' Such a provision addresses harms that are, in a
constitutionally important sense, facilitated by the
unencumbered movement of weapons across state and national
borders, and is similar to several other federal statutes in
which Congress has prohibited persons from using or
possessing weapons and other articles that have at one time
or another traveled in interstate or foreign commerce. The
courts of appeals uniformly have upheld the constitutionality
of such statutes. And, in Lopez itself, the Supreme Court
cited to the jurisdictional element in the statute at issue
in United States v. Bass, 404 U.S. 336 (1971), as an example
of a provision that ``would ensure, through case-by-case
inquiry, that the firearm possession in question affects
interstate commerce.'' 514 U.S. at 561. In Bass, 404 U.S. at
350-51, and in Scarborough v. United

[[Page S5355]]

States, 431 U.S. 563 (1977), the Court construed that
statutory element to permit conviction upon proof that a
felon had received or possessed a firearm that had at some
time passed in interstate commerce.
Proposed Sec. 249(a)(2)(B)(iv)(I) would apply only where
the government proves that the violent conduct ``interferes
with commercial or other economic activity in which the
victim is engaged at the time of the conduct.'' This is one
specific manner in which the violent conduct can affect
interstate or foreign commerce. This jurisdictional element
also is an exercise of Congress's power to regulate ``
`persons or things in interstate commerce.' '' Morrison, 120
S. Ct. at 1749 (quoting Lopez, 514 U.S. at 558). As Justice
Kennedy (joined by Justice O'Connor) wrote in Lopez, 514 U.S.
at 574, ``Congress can regulate in the commercial sphere on
the assumption that we have a single market and a unified
purpose to build a stable national economy.''
Finally, proposed Sec. 249(a)(2)(B)(iv)(II) would prohibit
the violent conduct described in Sec. 249(a)(2)(A) where the
government proves that the conduct ``otherwise affects
interstate or foreign commerce.'' Such ``affects commerce''
language has long been regarded as the appropriate means for
Congress to invoke the full extent of its authority. See,
e.g., Jones v. United States, 120 S. Ct. 1904 (2000), No. 99-
5739, slip op. at 5 (May 22, 2000) (``the statutory term
`affecting . . . commerce,' . . . when unqualified, signal[s]
Congress' intent to invoke its full authority under the
Commerce Clause''); Allied-Bruce Terminix Cos. v. Dobson, 513
U.S. 265, 273 (1995) (``Th[e] phrase--`affecting commerce'--
normally signals Congress's intent to exercise its Commerce
Clause powers to the full.''). Of course, that this element
goes to the extent of Congress's constitutional power does
not mean that it is unlimited. Interpretation of the
``affecting . . . commerce'' provision would be addressed on
a case-by-case basis, within the limits established by the
Court's doctrine. There likely will be cases where there is
some question whether a particular type or quantum of proof
is adequate to show the ``explicit'' and ``concrete'' effect
on interstate and foreign commerce that the element requires.
See Hamilton, 108 F.3d at 1464, 1467 (citing Lopez, 514 U.S.
at 562, 567). But on its face this element is, by its nature,
within Congress's Commerce Clause power.
In sum, because Sec. 249(a)(2) would prohibit violent
conduct in a ``discrete set'' of cases, 120 S. Ct. at 1751
(quoting Lopez, 514 U.S. at 562), where that conduct has an
``explicit connection with or effect on'' interstate or
foreign commerce, id., it would satisfy the constitutional
standards articulated in the Court's recent decisions.
The office of Management and Budget has advised that there
is no objection from the standpoint of the Administration's
program to the presentation of this letter.
Sincerely,
Robert Raben,
Assistant Attorney General.

Mr. KENNEDY. I was startled to hear my friend and colleague suggest
that when they asked the Justice Department which States took no action
in the Federal Government prosecution, he said there was not any. He
did not read his response from the Justice Department because I have in
my hand the response from the Justice Department that lists their
response. I am not going to take the time tonight to go all the way
through, but they have been listed. He ought to ask his staff for that
because it has been sent to the Judiciary Committee, of which he is the
chairman.
Included in the Justice Department's response are cases showing
instances where the Department has pursued cases Federally when the
State cannot respond as effectively as the Federal Government. For
example, when State penalties are less severe than Federal penalties or
where there are differences in applicable criminal procedure.
The idea that there really aren't times when States are unable to
prosecute a case just does not hold water, because the cases are out
there and have been supplied by the Justice Department.
Furthermore, this chart shows what is happening across the country in
the various States. Eight States have absolutely no hate crimes
statutes, 22 States have criminal statutes for disability bias crimes,
21 States plus the District of Columbia have criminal statutes for
sexual orientation bias crimes, and 20 States identify gender bias
crimes.
But, if you are in any of these States shown on this chart which are
colored gray, including many in the Northeast, as well as out in the
West, and you are involved in the beating or battering of an individual
American because of their sexual orientation, there are no hate crimes
statutes under which to prosecute the perpetrator.
The States shown in yellow on the chart have no hate crimes statutes
at all. As I said, the States shown in gray have no protection at all
for crimes committed because of a person's sexual orientation. Many of
those States that have hate crimes laws are inadequate because they do
not include all of the categories, including sexual orientation, gender
and disability.
We have one particular State, Utah, where a judge found the hate
crime law to be incomplete because it specified no classes of victims--
the State included itself as having a hate crimes law. The judge was
forced to dismiss the felony charges against two defendants who
allegedly beat and terrorized people in a downtown city. The case was
effectively dismissed because the state hate crime law was so vaguely
drafted that it failed to provide any of the protections that other
state hate crimes law do that clearly define classes of people who are
protected by race, religion, national origin, ethnic background,
gender, sexual orientation, or disability.
The reality in the United States today is that either we believe we
have some responsibility to protect our fellow Americans from these
kinds of extraordinary actions based upon bigotry and prejudice or we
don't.
We have taken action in the past. We have done it when the action was
based upon bigotry and prejudice and denial of the right to vote. We
have taken action when prejudice and bigotry have denied people public
accommodation. We have taken action against bigotry and prejudice when
people have been denied housing. We have taken action against bigotry
and prejudice toward people with disabilities.
Now we are asking the Senate to take action when there is violence
against American citizens based upon prejudice and bigotry. That is why
this vote tomorrow is so important. That is what the issue is about. It
is very basic and fundamental, and it is enormously important.
It is part of a continuing process of the march towards a fairer and
more just America. We have been trying to free ourselves from the
stains of discrimination on the basis of race. We are making progress
in terms of religion, national origin, and ethnic background. We are
doing it with regard to gender, disability, and sexual orientation.
What we are doing with this legislation is saying, at least in these
areas, protect American citizens from prejudice and discrimination and
violence that is being directed towards them. Let us make that a
priority; let all Americans know that we are not going to fight
prejudice and discrimination with one hand tied behind our backs. The
Federal Government should have both hands involved in trying to protect
our citizens from this form of discrimination.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I don't disagree with the Senator that hate
crimes are occurring, but they are being prosecuted by State and local
officials. That is the point. Many of the cases --and there aren't a
lot of cases that the Justice Department has provided--are cases where
the Justice Department felt there should have been a greater remedy and
there should have been greater sentencing. But they are not in large
measure cases where State refused or failed to prosecute the
perpetrators of these horrendous crimes.
The fact is, there are not a lot of cases that can be produced, and
the Justice Department has not been able to produce them. I don't
disagree that hate crimes are occurring and we should stamp them out,
but they are being prosecuted by State and local officials to the
fullest extent of the law. The Federal Government may disagree on how
they prosecute sometimes, but the fact is, they are being prosecuted.
No one has shown, certainly not the Justice Department, that these
truly horrific crimes are not being prosecuted, let alone on a large
scale. The fact is, they are being prosecuted.
The cases identified by the Justice Department, a handful of cases,
were in large measure cases where State officials, investigators, and
prosecutors got verdicts and sentences. In other words, they were
brought and verdicts and sentences were obtained. The Federal
Government would have tried the cases differently or might have sought
a higher or more harsh sentence. But they are not cases where the State
refused to prosecute a hate crime.
My colleague is right: We should do everything in our power to stop
hate

[[Page S5356]]

crimes in our society. But no one to this date has been able to show
that there is a widespread, endemic failure at the State level to
prosecute these crimes. There is no real evidence that the States are
being slovenly in their duties. That is one reason why I think it is
very important that we objectively analyze these matters. We will have
more time to debate this, hopefully a little more time tomorrow.
Finally, when Mr. Holder, the Deputy Attorney General, appeared
before the committee, he could not cite one case, not a single case.
After a month of research, the Justice Department came up with a
handful of cases. That was it. Not because they weren't prosecuted at
the State level, they were. They just differed with the way they were
prosecuted. That is not good enough. These are some of the things that
bother me.
I am willing to work with the distinguished Senator from
Massachusetts and the distinguished Senator from Oregon and others who
want to do something. If the amendment I am offering is not good
enough, I am willing to work to see if we can find something that will
bring us together and do a better job, certainly, to stamp out any type
of hate criminal activity. But I am very loathe to federalize all
crimes so that the Federal Government can second-guess State and local
prosecutors every time a criminal activity occurs. I think one could
say in many respects all crimes are hate crimes, even though they are
not categorized as such now. They are prosecuted, and that is the
important thing.
Mr. President, I will ask unanimous consent, unless there is anyone
else who desires to speak.
Mr. KENNEDY addressed the Chair.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, as I mentioned, the cases were provided
by the Justice Department.
Let me give you one case, U.S. v. Kila, 1994, a Federal jury in Fort
Worth, Texas acquitted three white supremacists of Federal civil rights
charges arising from unprovoked assaults upon African Americans,
including one incident where the defendants knocked a man unconscious
as he stood near a bus stop. For several hours, the defendants walked
throughout the town accosting every African American they met, ordering
them to leave whatever place or area they were in. Some of these
encounters consisted of verbal harassment; in others, Black victims
were shoved on the streets, their hats knocked off. Throughout their
movements through the city, the subjects were using racial epithets and
talking about white supremacy.

The subjects' parade of racial hate erupted into serious violence
with the assault on Ali--that is the name of the individual--at the bus
stop, an assault which knocked him unconscious. According to witnesses,
Ali was punched in the face after he fell to the ground, and kicked in
the head. He was transported by ambulance to the hospital, having
sustained head injuries. He did not have medical insurance. When the
doctors asked him to remain for further tests, he left against their
wishes.
The Federal Government became involved in the case when State
officials went to the U.S. Attorney's Office asking for Federal
assistance. The State could only proceed on misdemeanors, and in their
judgment, the conduct warranted felony treatment, treatment available
under Federal law. Some of the jurors revealed after the trial that
although the assaults were clearly motivated by racial animus, there
was no apparent intent to deprive the victims of the right to
participate in any federally protected activity.
It is this federally protected activity barrier under current law
that is unduly restrictive, and must be amended.
The Government's proof that the defendants went out looking for
African Americans to assault was insufficient to satisfy the statutory
requirements and effectively the case was dropped.
I could go back as far as 1982. Maybe in some cases defendants get
tried for a misdemeanor, as they did in a Western State case I
mentioned previously, but they are not getting prosecuted with the full
weight of the law. That is what we are talking about. In the 1982 case
that I referred to, two white men chased a man of Asian descent from a
night club in Detroit and beat him to death. The Department of Justice
prosecuted the perpetrators under existing hate crimes laws, but both
defendants were acquitted--despite substantial evidence to establish
their animus based on the victim's national origin. Although the
Justice Department had no direct evidence of the basis for the jurors'
decision, the Government's need to prove the defendants' intent to
interfere with the victim's engagement in a federally protected right--
the use of a place of public accommodation, was the weak link in the
prosecution.
These defendants committed murder on the basis of hate. Do we need
more cases? I am glad to stay here and go through a whole pile of them.
These are examples of what we are talking about. This is what is taking
place. The question is whether we are going to do something about it.
That is the issue that will be presented to this body tomorrow.
I will take a moment to read into the Record the letter from Judy
Shepard addressed to the members of the Judiciary Committee:

Thank you for your hard work and commitment to combating
hate violence in America. I appreciate the opportunity to
testify before your committee last year. As the mother of a
hate crime victim, I applaud your interest in trying to
address this serious problem that has torn at the very fabric
of our nation. However, I do have concerns with your bill (S.
1406) as currently written, and I would like to take this
opportunity to discuss them with you.
As I am sure you remember from our visit last fall, two men
murdered my son Matthew in Laramie, Wyoming in October 1998
because he was gay. Though your amendment is well
intentioned, it fails to address hate crimes based on sexual
orientation, nor does it include disability or gender. The
time has long passed for halfway measures to address this
devastating violence. While I appreciate your efforts, the
appropriate and necessary response is the Smith-Kennedy
measure (S. 622), and I strongly urge you to support this
approach.
Though forty states and the District of Columbia have
enacted hate crime statutes, most states do not provide
authority for bias crime prosecutions based on sexual
orientation, gender, or disability. Including the District of
Columbia, only 22 states now include sexual orientation-based
crimes in their hate crime statutes, 21 include coverage of
gender-based crimes, and 22 include coverage for disability-
based crimes.
There is currently no law that allows federal assistance
for localities investigating and prosecuting hate crimes
based on sexual orientation. As a result, though Matt's
killers were brought to justice, the Laramie law enforcement
officials told me, as I know they told you last year, that
they were forced to furlough five employees to be able to
afford to bring the case. The Smith-Kennedy amendment would
add sexual orientation, gender and disability to current law,
while your amendment would not. I urge you to support the
Smith-Kennedy amendment, which is more comprehensive and
inclusive.
I know that legislation cannot erase the hate or pain or
bring back my son, but I believe that passage of this
legislation is an essential step in the healing process and
will help allow the federal government to assist in the
investigation and prosecution of future hate crimes.
Again, I respect your commitment to making America a more
understanding and just country where hate crimes are no
longer tolerated. But I urge you to promptly address my
concerns that are shared by so many others, so our nation can
be safe for all people, including gay people like my son
Matthew.
Sincerely,
Judy Shepard.

Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Utah is recognized.
Mr. HATCH. Mr. President, I don't mean to prolong this, but in the
handful of cases they don't like what happened. In that case, I may
agree with the Senator that there should have been a verdict against
the defendants, but a jury in the United States found otherwise. That
doesn't mean we should federalize all hate crimes. That is what I am
concerned about.
I will just put forth my offer to work with the Senator to see if we
can find some way of bringing everybody together in a way that will not
intrude the Federal Government into all the local and State
prosecutions in this country, which certainly the Senator's amendment
would do. That is what I am concerned about. We will chat overnight and
talk about it and see what we can do.

____________________