[Pages S5410-S5435]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2001--Continued

Amendment No. 3252

The PRESIDING OFFICER. We are now under controlled time. Who yields
time?
The Senator from Washington.
Mrs. MURRAY. Mr. President, how much time remains on both sides?
The PRESIDING OFFICER. The Senator from Washington has 43 minutes
remaining, and the opposition has 42 minutes.
Mrs. MURRAY. I thank the Chair.
Mr. President, I remind my colleagues of the issue we will be
debating for the next 90 minutes. Basically, today a woman who serves
in the military overseas at a facility, if she so desires to have an
abortion--and it is her choice; it is her personal choice between
herself and her family and her doctor and her religion--has to go to
her commanding officer to ask for permission to come home to the United
States to have a safe and legal abortion. Then she has to wait for
military transport. She has to pay $10, as the opponents told us this
morning, for food on that military transport, and come home in order to
have a safe and legal abortion.
The pending amendment simply allows women who serve in our military
overseas today to pay for their own medical choice decisions in a
military hospital where it is safe and is a place where they can be
assured they will be taken care of, as we should expect we would take
care of all people who serve us in the military.
I have heard our opponents speak this morning on this amendment and
say it is unnecessary. I have a letter

[[Page S5411]]

from a woman who served in our military services. I would like to share
it with my colleagues who think it is unnecessary:

Dear Senator: My name is Jessica, and I am a college
student in Arizona. I am writing you regarding an experience
I had as a member of the Air Force while stationed in Yokota
Air Base, Japan.
Two years ago, as a young single woman, I found out I was
pregnant. I knew I couldn't talk to my immediate supervisor
because he was a Catholic priest. You see, my job in the
armed services was ``Chaplain's Assistant.'' So instead, I
went to the next level in my chain of command. In return for
requesting time off, I was verbally reprimanded and told that
I had sinned in the eyes of God and was going to hell if I
didn't repent immediately.
The next day, I made an appointment with a doctor on base
and told him I was pregnant and wanted an abortion. The
doctor whispered that I was to walk very quietly to the front
desk where the information would be waiting for me. The
information was scribbled on a single sheet of paper with
hand-drawn maps on it to three hospitals that would perform
abortions.
When I arrived at the hospital, I was sent into a cubicle.
None of the nurses spoke English, so I had no way of giving
them my medical history. I had no Japanese friends to
translate, and the Air Force would not provide any
assistance. My first doctor did not speak English either, so
I had no idea what the doctor did, or what medication he gave
me. I was completely alone.
I will never forget the humiliation I felt. I couldn't
speak the language, I was turned away by my American doctors
on base whose hands were tied. The doctors on base weren't
even allowed to give me information regarding this medical
procedure. Although I served in the military, I was given no
translators, no explanations, no transportation, and no help
for a legal medical procedure.
I have never heard of any male soldiers being treated like
this. In fact, I don't know of any medical treatments that
male soldiers are denied. Perhaps the military recruiters
should warn females before they enlist that the United States
will discriminate against them due to their gender.

This letter is compelling. It says that a woman who is serving her
country overseas, who is fighting for our rights, is basically denied
health care services of her choice that she would be given in this
country if she opted not to serve in the military.
I appeal to my colleagues to please make sure that the women who
serve us overseas are given the same rights as the women who live in
this country.
Mr. President, I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Arkansas.
Mr. HUTCHINSON. Mr. President, I will respond to a number of things
my colleague from Washington said.
While I do not know the specifics or the circumstances of the
situation to which she made reference, I know it is a bad practice when
we try to legislate by anecdote. I do know this as well, that much of
the debate is centered around whether or not a woman's rights can be
protected under current DOD policy. The insinuation has been that
servicewomen experience a lack of support from their chain of command
when requesting leave in order to obtain an abortion. That was the
circumstance in the situation to which Senator Murray just made
reference.
Such an argument impugns the professionalism of the officer corps.
There are procedures in place and there are rights by which men and
women in uniform can be protected. If, in fact, their rights are being
disregarded by a commanding officer, there are means under current law
by which those rights can be vindicated and the wrong righted.
I have great confidence in the professionalism of our officer corps.
I fully expect any commanding officer to approve a service member's
leave when properly requested, whatever the motivation for that
request. If that is not done, then there should be a grievance filed,
and I would stand in support of such an individual's right to make that
request on a space-available basis. I believe the professional officer
corps that we have is going to respond and treat that servicewoman
properly and give her the rights she has under the law.
The other point I would make to those who would impugn the
professionalism of our officer corps is that the commanding officer
today may just likely be a woman. That woman seeking permission to
receive approved leave for an abortion under current policy may just as
well find they are dealing with a commanding officer who is in fact
female.
At this time, I would like to yield 5 minutes to my distinguished
colleague from the State of Kansas, Senator Brownback.
The PRESIDING OFFICER. The Senator from Kansas is recognized for 5
minutes.
Mr. BROWNBACK. I thank the Chair. I thank my colleague from Arkansas
for leading this debate against this amendment. I rise in opposition to
the Murray amendment.
On February 10, 1996, the National Defense Authorization Act for
fiscal year 1996 was signed into law by President Clinton with a
provision to prevent DOD medical treatment facilities from being used
to perform abortions except where the life of the mother is endangered
or in cases of rape or incest. That is the public law.
This provision reversed a Clinton administration policy instituted on
January 22, 1993, permitting abortions to be performed at military
facilities. Previously, from 1988 to 1993, the performance of abortions
was not permitted at military hospitals except when the life of the
mother was in danger.
That is a bit of the history around this issue.
The Murray amendment which would repeal the pro-life provision
attempts to turn taxpayer-funded DOD medical treatment facilities into
abortion clinics. Fortunately, the Senate refused to let the issue of
abortion adversely affect our armed services and rejected this
amendment last year by a vote of 51-49, and we should reject it again
this year.
It is shameful that we would hold America's armed services hostage to
abortion policies. Using the coercive power of government to force
American taxpayers--American taxpayers, that is who we are talking
about here--to fund health care facilities where abortions are
performed would be a horrible precedent and would put many Americans in
a difficult position--using my taxpayer money to fund abortions.
When the 1993 policy permitting abortions in military facilities was
first promulgated, military physicians as well as nurses and support
personnel refused to perform or assist in elective abortions. In
response, the administration sought to hire civilians to do abortions.
Therefore, if the Murray amendment were adopted, not only would
taxpayer-funded facilities be used to support abortion on demand but
resources would be used to search for, hire, and transport new
personnel simply so abortions could be performed.
In fact, according to CRS, a 1994 memorandum from the Assistant
Secretary of Defense for Health Affairs says this:

Direct[ed] the Military Health Services System provide
other means of access if providing prepaid abortion services
at a facility was not feasible.

One argument used by supporters of abortion in military hospitals is
that women in countries where abortion is not permitted will have
nowhere else to turn to obtain an abortion. However, DOD policy
requires military doctors to obey the abortion laws of the countries
where they are providing services, so they still could not perform
abortions in those locations. Military treatment centers which are
dedicated to healing and nurturing life--healing and nurturing life,
that is what this is about; in other words, what we should be about--
should not be forced to facilitate the taking of the most innocent of
all human life, that of the unborn.
As I speak of this, I ask forgiveness for our country, for the
Nation, for the killing of this most innocent of life, the unborn.
I urge my colleagues to table the Murray amendment and free America's
military from abortion politics and from performing these abortions at
taxpayer-funded facilities. If passed, this amendment will effectively
kill the DOD authorization bill, and on that ground as well, I urge my
colleagues to reject this amendment.
I think we must get down to the very basics on this, as happens so
often when it comes to these sorts of issues, and that is: Should we
use taxpayer-funded facilities to perform abortions, making them
abortion clinics? Is that something our citizens would want us to do,
whether they were pro-life or pro-choice? I think the vast majority
would say, no, we don't want it to take place in our facilities and
this is a bad precedent for us to set.
I thank my colleague from Arkansas for leading this difficult and
very important debate.

[[Page S5412]]

I yield back the time reserved for our side on this issue.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. I yield 10 minutes to the Senator from Illinois.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. I thank the Chair.
I start by asking the sponsor of this amendment, Senator Murray, of
Washington, just a few questions so we can clarify what we are talking
about.
Is it my understanding that the Senator's amendment is offering to
women who are serving in the military the same constitutional right
available to every woman in America?
Mrs. MURRAY. The Senator from Illinois is absolutely correct.
Mr. DURBIN. Secondly, is it my understanding that if a woman in the
military wants to seek an abortion, the Senator's amendment says it
would have to be at her cost completely, not at any cost to the Federal
Government?
Mrs. MURRAY. That is right. Under this amendment, the woman would
have to pay for the services in the military hospital on her own.
Mr. DURBIN. Third, does the Senator's amendment require every
military hospital and every doctor in those hospitals to involve
themselves in abortion procedures if it violates their own personal
conscience or religious belief?
Mrs. MURRAY. I say to the Senator from Illinois, there is a
conscience clause that allows any doctor to be excused from the
procedure based on religion.
Mr. DURBIN. I thank the Senator from Washington.
I wanted to make those points clear. We are talking about a
constitutional right which every woman in America enjoys, her right to
control her reproductive health.
Make no mistake; it is a controversial right. There are people on
this floor who do not believe the Supreme Court was right in
establishing that, within the right of privacy, every woman should make
that decision with her doctor and her conscience. These are people who
oppose abortion either completely or want to limit it to certain
circumstances.
What we are talking about here is whether or not a young woman who
takes an oath to defend the United States of America and becomes part
of our military service is going to give up her constitutional right to
control her own reproductive health. That is the bottom line.
What Senator Murray is trying to say is, why would we treat women who
volunteer to serve in the military as second class citizens? Why would
we deny to daughters and sisters and mothers and wives who serve in the
military the same constitutional right which every woman in America
enjoys?
Those who oppose this amendment say women in the military should be
treated as second class citizens; they should not have the same
constitutional rights as any other woman in America.
Second, the question about whether the Government is paying for the
abortion is always a controversial question. Some people who in
conscience oppose abortion say: I don't want a penny of my taxes to be
spent on abortion services. Senator Murray addresses this directly and
says that any abortion procedure has to be paid for by the woman in
uniform. She is paying for it out of her pocket. It isn't a matter of
the Government paying for it. Should a woman choose an abortion
procedure, they have to pay for it. In this case, Senator Murray makes
that clear.
Finally, to argue we are going to turn military hospitals into
abortion clinics and force doctors to perform abortions defiles the
very language of the amendment. Senator Murray carefully included a
conscience clause. If a doctor in a military hospital overseas should
say: because of my personal religious beliefs or my conscience, I
cannot perform an abortion procedure, there is absolutely no
requirement in the Murray amendment that person be involved. The same
conscience clause that applies in most hospitals in the United States
applies in this amendment.
This is the bottom line: Men and women in uniform are asked to risk
their lives in defense of our country. God bless them that they are
willing to do that. But should women in the military also be asked to
risk their health and their lives because they want to exercise their
own constitutional right to decide about their own reproductive health
care? That is the bottom line.
It really gets down to a very simple question: Why would we treat
women in the military who have volunteered to serve this country as
second-class citizens?
Sue Bailey, the Assistant Secretary of Defense for Health Affairs,
recently wrote:

The Department of Defense believes it is unfair for female
service members, particularly those members assigned to
overseas locations, to be denied their constitutional right
to a full range of reproductive health care, to include
abortion. The availability of quality reproductive health
care ought to be available to all female members of the
military.

So we know where the military stands. The Department of Defense
supports this amendment by Senator Murray.
There is a current provision in the law for servicewomen overseas,
when they have their life at stake or they have been victims of rape or
incest, to have an abortion service at a military hospital. This has
been stated by those on the floor. But there is no provision, no
protection whatever, for that same servicewoman who discovers during
the course of her pregnancy that because of her own medical condition
continuing the pregnancy may be a threat to her health. A doctor can
diagnose during the course of a pregnancy the continuing that pregnancy
might result in a young woman never being able to bear another child.
Perhaps that baby she is carrying is so fatally deformed it will not
survive. And according to those who oppose the Murray amendment, that
servicewoman is on her own.
What is her recourse? Well, maybe she will turn to a doctor in that
foreign country, hoping that she will get someone who is professional
and can perform a service that won't harm her more than a continued
pregnancy might. Frankly, the alternative is to get on a plane and fly
to another location, another country, or back to the United States,
wait for space available, or pay for it on commercial fare. Is that the
kind of burden we want to impose on young women who volunteer to defend
the United States, take away the constitutional right available to
every American woman, to say to them, if you find yourself in a
delicate or difficult medical situation, it is up to you, at your cost,
to get out of that country and find a doctor, a hospital, a clinic,
that can serve you? That is the bottom line, as far as I am concerned.

This is a question of simple fairness. It is a question of restoring
a policy which was in the law between 1973 and 1988 and again from 1993
to 1996.
Senator Murray has said to those who oppose abortion--and many in
this Chamber do--to those who oppose the Supreme Court's decision in
Roe v. Wade, you are entitled to your point of view; You are entitled
to make the speeches you want to make; But you are not entitled to deny
to servicewomen overseas the same constitutional rights we give to
every woman in America. We will debate abortion for many years to come,
whether or not the Supreme Court sustains Roe v. Wade.
So long as it is the constitutional right in our country for women to
consider their own privacy and their own reproductive health and make
those personal decisions with their doctor, with their family, with
their conscience, we should not deny that same right to women who are
serving in the military.
The women in our Armed Forces already give up many freedoms and risk
their lives to defend our country. They should not have to sacrifice
their privacy, their health, and their basic constitutional rights for
a policy with no valid military purpose.
I rise in strong support of this amendment, a bipartisan amendment,
by Senator Murray and Senator Snowe of Maine. I hope my colleagues will
show respect for the women who serve in our military by voting in favor
of this amendment.
I yield the floor.
Mr. HUTCHINSON. Mr. President, one of the issues that has arisen
during this debate is whether or not the Murray amendment violates the
Hyde provision which prohibits Federal funding

[[Page S5413]]

for abortion. Proponents of the amendment argue, no, this doesn't
violate Hyde because we are requiring a woman to pay for the abortion
procedure.
I have raised the issue as to how exactly to calculate the cost of
reimbursing the DOD for the expense of an abortion procedure, in a
military hospital, when the facilities were built at taxpayers'
expense, and the support staff were paid salaries out of public funds,
in which the equipment has been paid for. How in the world would this
be calculated?
Now, earlier it was suggested that is not really a problem. During
the lunch break, we checked with the Department of Defense. I will
share for the record what we found. It is currently not feasible with
existing information systems and support capabilities to collect
billing information relative to a specific encounter within the
military health care system.
Procedures performed in military hospitals are assigned a diagnostic
related group code, but these are ``assigned'' or ``allocated'' costs
that don't necessarily reflect resources devoted to a specific case.
Military infrastructure and overhead costs cannot, at the present time,
be allocated on a case-by-case basis.
It is very clear that the Hyde amendment would be violated, that we
would--whether we admit it or not, whether we promulgate this legal
myth--be subsidizing abortion with taxpayers' money, in violation of
the law of the land.
I yield 5 minutes to my colleague from Wyoming, Senator Enzi.
Mr. ENZI. Mr. President, I thank the Senator from Arkansas for his
dedication to this issue and I thank the Senator from Kansas for his
very careful presentation of a number of important issues that deal
with this amendment.
Mr. President, I rise in opposition to the Murray amendment and I
urge my colleagues to follow the course we have set over the last
several years and reject this amendment.
Mr. President, the underlying legislation before us, the Department
of Defense Authorization Act, is an extremely important piece of
legislation. In conjunction with the accompanying appropriations bill,
it provides for the essential funding needed by our brave men and women
on whom we rely to dedicate their time and service, and sometimes even
their very lives, to protect our great nation from aggressors who
threaten our freedom, and security, and our very way of life. Our
military personnel are tasked with protecting our lives and our manner
of life, which according to our hallowed Declaration of Independence,
guarantees to each American those fundamental rights of life, liberty,
and the pursuit of happiness.
Rather than supporting our brave military men and women in their
difficult task of protecting life and liberty, the Murray amendment
would call on military personnel to use military facilities to take
innocent human life through elective abortions. This proposal runs
contrary to the mission of our armed services and should be rejected.
Mr. President, it is noteworthy that when President Clinton first
promulgated his policy in 1993 directing that abortions be performed in
military facilities, all military physicians and many nurses and
support personnel refused to perform or assist in elective abortions.
This is compelling evidence that military physicians want to be in the
business of saving life, not performing elective abortions. We should
honor the wishes of these military medical personnel and reject the
Murray amendment.
Mr. President, this amendment even goes beyond the debate on abortion
because it would essentially require tax funds to be used to aid in
elective abortions. Military hospitals and medical clinics are built
with American tax dollars. Military physicians, nurses, and other
support personnel are paid by federal tax dollars. We have just heard
how that billing is done. From an accounting standpoint the person does
not pay for the costs involved with the medical hospitals and clinics.
Military physicians, nurses and other support personnel are paid by
Federal tax dollars. Even if the abortion procedure itself was not
directly paid for by federal funds, federal tax dollars would have to
be used to train military physicians to perform abortions.
Moreover, if military physicians refused to perform these elective
abortions, and they were not required to violate their consciences,
then civilian doctors and medical personnel would have to be hired to
perform these elective abortions on military facilities. How does the
accounting work for direct costs? Would these civilian medical
personnel also have to be reimbursed with federal tax dollars?
In essence, the Murray amendment would require that American
taxpayers help pay for elective abortions for military personnel.
Regardless of one's position on the legality of abortion, it is not
proper for Congress to use Americans' tax dollars to fund something
that is as deeply controversial as abortion on demand.
I urge my colleagues to cast a vote for life and maintain the status
quo by rejecting the Murray amendment. Abortions are available if the
life of the mother is at stake, or if there has been rape or incest.
But the elective abortion is another area that is controversial because
of the funding that is available. So I do ask you to cast a vote for
life and maintain the status quo, reject the Murray amendment.
I yield the floor. I reserve the remainder of the time.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. Mr. President, I yield 10 minutes to the Senator from
New Jersey and 10 minutes to the Senator from California.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. TORRICELLI. Mr. President, I thank the Senator from Washington
and the Senator from Maine. I congratulate each of them on this
amendment.
There are good and sound arguments that people who serve in the Armed
Forces of the United States deserve some special privilege. Their lives
are at risk. They give months and years of their time in service to our
Nation. Certainly, they deserve some special recognition and
accommodation to their needs.
I know of no argument that people in service to our country, because
they are in the Armed Forces, deserve less. Access to safe abortions is
not a national privilege. It is not a benefit we extend to the few. It
is, by order of the Supreme Court of the United States, a
constitutionally mandated right. Yet people would come to the floor of
the Senate and say those who take an oath to defend our Nation and our
Constitution by putting their lives in harm's way deserve not those
constitutional rights of other Americans but less.
To the extent my colleagues want to debate the law, fight on the
constitutional issue, I respect them. To the extent they simply want to
provide barriers when a woman wants to exercise her constitutional
right while in service to our country, it does not speak well of the
anti-abortion movement. Women in the Armed Forces serving abroad must
arrange transportation, incur delays. Ironically, to those in the anti-
abortion movement, these are women whose abortions get postponed to
later stages of pregnancy and must have the personal dangers of travel
while pregnant because of this prohibition.

In spite of words I heard said on this floor, there are no public
funds involved. Women would pay for these procedures themselves. No
providers of health care in a military hospital or other facility would
be forced to do this against their will. This would be done only on a
voluntary basis by regulation of the Armed Forces. It is voluntary; it
is privately paid for; it is constitutional; and it is right.
How would we account for the expense, the Senator from Arkansas has
raised. This was done in 1994 and 1996; it was done before 1993. In all
those years, in hundreds and thousands of cases, we had no accounting
difficulty. A woman is presented with a bill: Here is what it costs. Is
it a private matter? You pay for it.
The Armed Forces themselves may be in the best position to speak for
their own members. On May 7, 1999, Assistant Secretary of Defense Sue
Bailey stated:

[[Page S5414]]

Exactly. Members of our Armed Forces ask for no special privileges.
They ask for no special rights. They want to have the constitutional
rights of all other Americans. It is not right. It is not fair. It is
not even safe to ask a woman at this dangerous, important, critical
moment of her own life to seek transportation to travel across
continents to exercise the abortion rights that every other American
can get from their own doctor at their own hospital.
No matter what side you are on in the abortion debate, this is just
the right thing to do. I urge my colleagues on both sides of the aisle,
on all sides of this debate, if ever there was a moment for unity on
reproductive rights, I urge support for the Snowe-Murray amendment.
The PRESIDING OFFICER. The time of the Senator has expired. Who
yields time to the Senator from California?
Mrs. BOXER. I believe, under the unanimous consent agreement, I am
supposed to get 10 minutes at this time; is that correct?
The PRESIDING OFFICER. The Senator is correct. The Senator is
recognized for 10 minutes.
Mrs. BOXER. Mr. President, I thank Senator Murray for giving me these
10 minutes. I compliment her and Senator Snowe for once again bringing
this matter to the Senate. We have had very close votes. I believe, if
people listened to the arguments on both sides, they would come down in
favor of the Murray-Snowe amendment. I want to say why.
The Murray-Snowe amendment will repeal the law which says to
servicewomen and military dependents who are stationed overseas that
they are less than full American citizens; that they, in fact, no
longer have the protections of the Constitution; and that, in fact,
they do not deserve the full measure of that protection.
I don't want to overstate this, but I think it is almost unpatriotic
to take the view that a woman who gives her life to her country every
single day would be denied a right that every other woman has. No other
woman in America is told: Talk to your boss about the problem you've
got yourself into. Get his permission.
I say to my colleague from Arkansas, who says some of the commanding
officers are women, I suppose about 2 percent are women. But that is
not the point. Whether it is a man or a woman, no one else in America
has to go get permission from their employer to get a safe abortion.
With all due respect to Senator Brownback, who says this is about
protecting the unborn, this is not about protecting the unborn. This is
about protecting the rights of American women, who happen to be in the
military, to have the same constitutional protections as any other
woman. If we want to discuss the issue of whether a woman should have
the right to choose, that is another conversation for another day or
perhaps for another Supreme Court, which has upheld a woman's right to
choose time and time and time again since 1973. Even Justices who were
appointed by Republican Presidents have done so. So although my friends
want to make this issue about the rights of the unborn, that is not
what this is about. This is about making it difficult and really, in
many ways, dangerous for women in the military to exercise their right
to choose. I think that is a rather sick thing to do, if you want to
know the truth.
How would you like to be a woman who finds herself with this unwanted
pregnancy? She may decide to go to full term. That is her choice. She
may choose that. But what if she doesn't? Now she is faced with a
situation where she has to go to her boss and beg to get on a cargo
plane--when there is a seat available, I might say.
So Senator Torricelli is right in his point; such could delay this
procedure until it was more dangerous to her health, or she could
choose not to be humiliated, embarrassed, and the rest, and go to an
unsafe place in a country that may well be hostile to her, try to
understand what the doctors and the nurses are saying, and subject
herself to a dangerous situation. Why? Why would my colleagues want to
do that to women in the military?
With all due respect to my colleagues, I do not doubt their
sincerity. But for them to stand up and say that the DOD really doesn't
know how to allocate these costs so Senator Murray is wrong on this
point, Senator Snowe is wrong on this point; we can't figure out really
what this costs, that simply flies in the face of experience.
For many years, this is what had been done. It was no problem getting
the women to pay their fair share of the costs associated with an
abortion, a safe and legal abortion in a safe military hospital.
In the Murray amendment, no one is forced to be involved in this
procedure if they have an objection based on conscience.
We have covered all the bases, if you will. I don't care who stands
up here and waves a piece of paper and says they can't figure out what
it costs. The military supports the Murray-Snowe amendment.
I will repeat that. The U.S. Department of Defense supports the
Murray-Snowe amendment. Why? Because they care about the people in the
military. They are advocates for people in the military. They do not
think you should give up your rights because you put your life on the
line for your country. On the contrary. They want to thank the women in
the military for putting their lives on the line, and one way to do it
is to ensure they will share in the benefits of this Nation, which
include being protected by the Constitution of the United States of
America.
The Supreme Court decision that occurred in 1973, which many of my
colleagues do not like--Senator Harkin and I had a very clear-cut
amendment upholding the Supreme Court decision of 1973. We got 51
votes. Roe v. Wade got a 51-vote majority in the Senate, but it is
hanging by a thread. And this attempt in this bill, which the majority
side of the aisle supports, to stop women, who happen to be in the
military, from their constitutional right to choose flies in the face
of what the military says it wants to do for our people, which is to
protect them when they are abroad.
This is simply about the rights of women, one particular group of
women, the women I thought my friends on the other side of the aisle
would particularly respect because of their respect for the military.
This is telling those women in the military: You cannot have the same
rights as anybody else.
I recall when we had a debate on the Washington, DC, appropriations
bill. I happened to be the minority member who was bringing that bill
forward. There were many restrictions on the poor women of Washington,
DC, that were not put into any other bill. In other words, the people
in my cities did not get stuck with particular rules that told them
they could not use city money if they, in fact, wanted to exercise
their right to choose.
I said to my friends on the other side of the aisle: Why are you
picking on these poor women in Washington, DC? Do my colleagues know
what the answer was? Because we can.
I rhetorically ask the same question: Why are we picking on women in
the military and saying they are less than full citizens of this
country, that they do not have the constitutional rights that other
women have?
I suspect an honest answer coming back would be: Because we can take
this right away; because we in the Senate have the power of the purse,
and we are going to exercise that power because we can. And they will
do it.
I am hoping one or two people on the other side will change their
minds on this amendment if they are listening to this debate; given the
fact that the military supports the Murray-Snowe amendment. I hope a
couple of people will change their minds on this. Just because we can
exercise our personal religious and moral beliefs on someone else does
not mean we should do that.
We should respect people and know we have freedom of religion in this
country. That does not mean we have a right to put our moral values and
our decisions on someone else. We should respect them. They are going
to decide this issue.
I can tell my colleagues that a decision to have an abortion is one
that is very serious for our people. Women do not do it in a cavalier
way. They think about it, and they talk about it with the people who
love them, not their boss. That is what my colleagues make people do:
Go to their boss and beg to get on a plane to get a safe abortion. It
is shameful. It is just shameful. They

[[Page S5415]]

would not want that done to their children. I do not think so. They
would want them to have the chance to do what they thought was right
and have the opportunity of a safe, legal procedure.

Again, I say to Senators Murray and Snowe that they are courageous to
do this; they are right to do this. They lost a couple of votes on
close vote counts, and they are not giving up.
I hope everyone who is watching this debate, be they a man or a
woman, be they old or young, be they for a woman's right to choose or
against it, understands what this debate is about. Nothing we do today,
regardless of how this vote goes, will change the law governing a
woman's right to choose. That was decided in 1973, and it has been
upheld. It is a right.
This is not about the rights of the unborn. It is about the rights of
women in the military to have the same constitutional protections as
all the other women in our Nation.
I thank the Chair for his courtesy, and I thank Senator Murray for
her courage. I yield the floor.
The PRESIDING OFFICER. The Senator from Arkansas.
Mr. HUTCHINSON. Mr. President, the statement was made that the
military supports the Murray amendment. Thus far during our debate,
twice, a Dr. Sue Bailey, who is a former Under Secretary of Defense for
Health, has been quoted. Notwithstanding whatever the Department of
Defense might say today, I suspect were there to be a survey of U.S.
men and women in uniform across the world, the vast majority would not
favor turning U.S. military installations overseas into abortion
providers.
I yield to the distinguished Senator from Oklahoma, Mr. Nickles, such
time as he may consume.
The PRESIDING OFFICER. The assistant majority leader.
Mr. NICKLES. Mr. President, I compliment my colleague from Arkansas,
Senator Hutchinson, for his contribution to this debate. I want to make
a couple of comments.
If we adopt the Murray-Snowe amendment, we will be turning military
hospitals worldwide into abortion clinics. That is what it is about.
I heard somebody else say: We have to protect the constitutional
right to choose. It is not the right to choose. The question is, are we
going to turn military hospitals into abortion clinics?
I also heard the comment: The military supports this amendment. I
would like to ask General Shelton that. I would like to ask Secretary
Cohen that. I would like to ask former Secretary Dick Cheney that. I
would like to ask Colin Powell that. I doubt that would be the case.
What about this constitutional right? I heard ``safe legal
abortions.'' When did Congress pass a law? I do not believe Congress
ever passed a law saying women have a right to an abortion. The Supreme
Court came up with a decision in Roe v. Wade that ``legalized''
abortion, and by legalizing abortion they overturned State laws.
The majority of States--almost all States--had restrictions on
abortions. The Supreme Court, in its infinite wisdom, said: States, you
do not know enough, so we are going to legalize abortion.
I personally find it offensive anytime the Supreme Court goes into
the lawmaking business. I read the Constitution to say Congress shall
pass all laws--article I of the Constitution. It does not say, laws
that are kind of complicated, Supreme Court, you go ahead and pass.
Now people are trying to take, in my opinion, a flawed Supreme Court
decision and say we are going to turn that into a fringe benefit.
Certainly, the Supreme Court did not say that, but my colleagues are
saying: We want to have the right to have an abortion in government
hospitals; this is a fringe benefit; let's pick it up, it is going to
be paid for by the taxpayers.
These doctors, who are Federal doctors, are going to be trained to do
what? Provide abortions. What is an abortion? It is the destruction of
a human life. We are now going to turn this Supreme Court decision into
a fringe benefit? The Supreme Court never said this was a fringe
benefit. The Supreme Court never said the Government had to pay for it,
or the taxpayers had to pay for it.
Who pays that doctor's salary? Who is going to train that doctor? Who
is going to train the nurse? Who is going to make sure the facilities
are there? The taxpayers are. The Supreme Court never said you have to
turn this into a Federal paid fringe benefit at Federal expense.
I heard somebody else say this is not a debate about paying for it;
they are willing to pay for it themselves. They do not pay for the
training of the doctors. They do not pay for the building of the
facilities or having the facilities there, and all the expenses
associated with it.
Basically, they are asking that the Federal policy be to turn our
military hospitals into abortion clinics with the acceptance, with the
acknowledgment, with the prestige of the U.S. Government, that this is
a procedure we will supply, as if it is just an ordinary fringe
benefit.
It is dehumanizing life. It is devaluing life. It is just a fringe
benefit? It is a destruction of life. We are going to have the
taxpayers do that? We are going to mandate all military hospitals
worldwide become abortion clinics?
We are going to mandate basically that these doctors, when they are
recruited to go into military training, have to also be trained to
perform abortions? I think that would be a serious mistake. I urge my
colleagues, at the appropriate time, to vote in favor of the motion to
table the Murray amendment.
Again, my compliments to my friend and colleague from Arkansas.
The PRESIDING OFFICER (Mr. Crapo). The Senator from Washington.
Mrs. MURRAY. Mr. President, I simply need to respond. The Murray-
Snowe amendment is not asking for a fringe benefit. Let me make it very
clear to everyone who is listening, what this amendment does is simply
allow a woman who serves in the military overseas to pay for her own
abortion services in a military hospital where it is safe and it is
legal. It is not a fringe benefit. Health care choices for women who
serve us overseas are not fringe benefits. They simply are the same
right that is afforded to every woman who lives in this country.
Mr. President, I yield 5 minutes to the Senator from Louisiana.
The PRESIDING OFFICER. The Senator from Louisiana.
Ms. LANDRIEU. Mr. President, I come to the floor today just to add a
couple of other points to this very important debate.
I thank my colleagues from Washington and Maine for sponsoring this
amendment. I will join with them in voting for this amendment.
I simply point out to our colleagues that while emotions and passions
may run quite high on this issue, as has been expressed by various
Members, I do not necessarily consider this an abortion vote one way or
the other. This is about our military. This is about equal rights and
equal protection for men and women who serve in the military. It is a
pro-military vote. It is a health care vote.
We can debate, as we do regularly, and as the Senator from Oklahoma
just pointed out, our differences of opinion on abortion. We have
differences of opinion about whether we should be pro-choice, anti-
choice, or pro-abortion. But this is an amendment concerning women who
have signed up in the military, at some sacrifice to themselves and to
their families, to serve our country in uniform.
As a member of the Armed Services Committee, it is so hard for me to
understand how this Congress could take a constitutional right away
from a woman in uniform by denying her health care she may need, and in
some instances may be in desperate need of, while serving our country
overseas. It is for no good reason that I can understand, nor can many
of us understand.
We can debate the abortion issue on other bills, in other venues. We
have resolutions. This is on our military bill. This is a readiness
issue. We have reached out to women to serve in our Armed Forces. We
have asked them to serve. Ten or fifteen percent of our Armed Forces
are female.

Just recently I read, with great pride--and I hope many of our
Members here have read this--that in our academies, the Army, the Air
Force, and the Navy academies, 5 out of the top 10 graduates this year
are women.
We are opening the doors of our military academies. Some of our best

[[Page S5416]]

trained people are female, getting ready to defend our Nation's
principles for which so many died.
If, in fact, they are overseas and injured in the line of duty, and
the woman happens to be pregnant and needs to terminate that pregnancy,
they will have to go to their commanding officer, ask for permission,
and be transported back on a cargo plane, if and when one is available,
putting their health in jeopardy. It is not right. It is not fair.
I would like to correct the record. Secretary Cohen does support
giving this health benefit to women who are in our military.
I would like to correct something else for the record. The Murray-
Snowe amendment requires that women in uniform pay out of their own
pockets for the procedure that they believe they need because of their
health or that their doctor might recommend they need. In addition to
paying out of their pocket, let me remind my colleagues, they are
taxpayers. Their money does in fact build the hospitals and pay for the
doctors. The last time I checked the Tax Code, both men and women pay
taxes, not just the men of this Nation.
So for the readiness issue, for the military issue, I ask my
colleagues, even those who are opposed to abortion on constitutional
grounds, since it is a constitutional right, let us please have
consideration for the women who are in uniform, who serve our country
valiantly, and who may indeed find themselves in a foreign and strange
land, in some instances, fighting for the principles we represent here.
For them to not be able to get the health care they need because some
Members of this body voted to take that right away from them, I do not
want to be in that number.
Mr. President, I am proud to support this amendment. I urge all of my
colleagues to join with us in supporting this important amendment.
I yield back the remainder of my time.
The PRESIDING OFFICER. The Senator from Arkansas.
Mr. HUTCHINSON. Mr. President, a constitutional right has not been
abridged. They in fact can seek an abortion, but it simply cannot be on
military grounds, in military hospitals, or subsidized by the American
taxpayer.
At this time, I yield such time as he might consume to my
distinguished colleague on the Armed Services Committee, the Senator
from Alabama, Mr. Sessions.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Mr. President, this is indeed an important Defense
authorization bill. We have worked on it for a long time.
Unfortunately, it is now being jeopardized by an attempt to shove
further and further abortion rights, abortion entitlements forward, to
be paid for by the American taxpayers. That is a principle we ought not
to confront, in my view.
As I see it, there has sort of been a quasi, uneasy truce among those
who disagree about abortion. We have said the right exists and people
can choose it, but we are not requiring that the American taxpayers pay
for it. People on both sides may like to see that changed in various
directions, but fundamentally that is where we are.
We have an important defense bill being jeopardized by this approach
that says that taxpayers have to have the Army, Navy, and Marine
hospitals converted into abortion clinics. I do not believe that is
popular with the service. I know it is not popular with the physicians
in the service. In fact, I am disappointed to hear that the Secretary
of Defense--I now hear from this floor--favors this amendment.
Once again, we have politicians and bureaucrats in the Department of
Defense playing political and ideological games with the morale and
esprit de corps of the men and women in the military. I do not
appreciate that.
Every physician who was called upon previously, when there was a
period in which these abortions were to be performed in military
hospitals, rejected that. Not one military physician, who swore an oath
to preserve life and who had character and integrity that led them to
conclude they ought not to do these abortions, would do so.
So there is unanimous support. I do not know why the Secretary of
Defense ought to be doing this. I did not know that it happened. I knew
that a bureaucrat, an Under Secretary of Defense, had said it was a
constitutional right.
It is not a constitutional right to have the taxpayers provide a
place for someone to conduct an elective surgery. That is not a
constitutional right. It is a constitutional right, according to the
Supreme Court, that no State can pass laws to stop someone from going
out and seeking an abortion and having it. Basically, that is the
current state of the law by the U.S. Supreme Court. That is the right.
It is not a right to have it paid for by the American citizens, many
of whom deeply believe it is wrong. Overwhelmingly, a majority--
apparently all physicians in the military--do not want to do this. Why
are we forcing it? It is not good for military morale. It is not going
to improve the self-image of the patriots who defend us every day. I
feel strongly about that. I wish the Secretary of Defense had not come
forward in that way.

What is the policy? What are we saying to our women in uniform today?
The policy says: Join the service and you may be deployed. Most people
may serve their whole career and never be deployed outside the United
States but some are. So you may be deployed. We say to them: You have a
full right to have an abortion, as any other American citizen. You have
that right. We have regulations, implemented by the Clinton-Gore
administration, to guarantee those rights. We say: But you must pay for
that procedure. The taxpayers are not going to pay for it. If you are
on foreign soil and there is not an American hospital nearby or an
abortion clinic nearby, you will be given leave. You will be given free
travel on military aircraft to come back to a place you think is
appropriate to have your abortion. We are just not going to pay for it.
We are not going to convert our hospitals, and we are not going to have
our physicians who don't approve of this procedure be required to take
training in and undertake that procedure.
That is the way it is. That is not a denial of constitutional rights.
If it were, why don't we have a lawsuit and have the U.S. Supreme Court
declare that is an unconstitutional policy? There is zero chance of
having the Supreme Court declare the policy, as I have just stated it,
unconstitutional. It is an absolutely bogus argument to say the current
state of the law concerning abortions in military hospitals is
unconstitutional. It is not so. It is inaccurate and wrong. It ought
not to be said. If it is so, it will be reversed by the Supreme Court.
But it will not be because it is not unconstitutional.
Someone suggested that this is oppressive to women. That is a very
patronizing approach to women in the military. The women I know in the
military are quite capable. They know how to make decisions. They are
trained to make decisions. They are strong and capable. They are not
going to be intimidated from taking a medical course they choose to
take. It is not a question of asking permission of their commanding
officer. They can have the abortion as they choose. If they want to be
transported back to the United States on free travel, they have to ask
for the free travel. They have to ask their commander, someone to give
them the travel back on the aircraft. It is not begging the commanding
officer for permission to have the abortion, which is a right protected
by the Constitution.
It has been argued that we are here to place barriers in the way. No.
The regulations guarantee the right of a woman in the military to have
an abortion and guarantee the right to be transported back to a place
where the abortion can be provided. It does not bar an abortion. How
can daylight be turned to darkness in that way?
There are many deep beliefs on both sides of this issue. We need to
be clear in how we think about it. If we think about it fairly, we will
understand that the U.S. military guarantees and protects and will
assist a woman to achieve an abortion. What we are saying is, we shall
not be required to provide a hospital, doctors, and nurses to do so. I
think that is a reasonable policy in this diverse world in which we
live. We do not need to jeopardize the entire Defense bill by
challenging the deeply held and honorable position of many Americans.

[[Page S5417]]

We need to reject this amendment. I think it is basically an attempt
to shove, once again, the abortion barriers even further, to attempt to
get around the Hyde amendment which flatly prohibits expenditure of
Federal dollars to carry out abortions. The Hyde amendment is quite
sane, quite reasonable, quite fair in light of the deeply held opinions
of Americans.
Let us not go further. Let us reject the Murray amendment.
Ms. MIKULSKI. Mr. President, I rise today in strong support of the
amendment offered by Senators Murray and Snowe. I am proud to be a
cosponsor of this amendment.
This amendment would repeal the current ban on privately funded
abortions at U.S. military facilities overseas.
I strongly support this amendment for three reasons. First of all,
safe and legal access to abortion is the law. Second, women serving
overseas should have access to the same range of medical services they
would have if they were stationed here at home. Third, this amendment
would protect the health and well-being of military women. It would
ensure that they are not forced to seek alternative medical care in
foreign countries without regard to the quality and safety of those
health care services. We should not treat U.S. servicewomen as second-
class citizens when it comes to receiving safe and legal medical care.
It is a matter of simple fairness that our servicewomen, as well as
the spouses and dependents of servicemen, be able to exercise their
right to make health care decisions when they are stationed abroad.
Women who are stationed overseas are often totally dependent on their
base hospitals for medical care. Most of the time, the only access to
safe, quality medical care is in a military facility. We should not
discriminate against female military personnel by denying safe abortion
services just because they are stationed overseas. They should be able
exercise the same freedoms they would enjoy at home. It is
reprehensible to suggest that a woman should not be able use her own
funds to pay for access to safe and quality medical care. Without this
amendment, military women will continue to be treated like second-class
citizens.
The current ban on access to reproductive services is yet another
attempt to cut away at the constitutionally protected right of women to
choose. It strips military women of the very rights they were recruited
to protect. Abortion is a fundamental right for women in this country.
It has been upheld repeatedly by the Supreme Court.
Let's be very clear. What we're talking about here today is the right
of women to obtain a safe and legal abortion paid for with their own
funds. We are not talking about using any taxpayer or federal money--we
are talking about privately funded medical care. We are not talking
about reversing the conscience clause--no military medical personnel
would be compelled to perform an abortion against their wishes.
This is an issue of fairness and equality for the women who sacrifice
every day to serve our nation. They deserve access to the same quality
care that servicewomen stationed here at home--and every woman in
America--has each day. I urge my colleagues to support this important
amendment to the Fiscal Year 2001 Department of Defense Authorization
Bill.
Mr. ROBB. Mr. President, the amendment offered by Senator Murray and
Senator Snowe renews our debate, once again about women's reproductive
choice and access to safe, affordable, and legal reproductive health
care services. I commend the sponsors of this amendment for their
eloquent advocacy on behalf of women in uniform.
Mr. President, the Murray-Snowe amendment repeals the ban on
privately funded abortions at overseas military medical facilities.
Simply stated, this legislation would ensure that women service members
and military dependents stationed overseas have access to the
reproductive health care services guaranteed to all American women.
Under the current policy, women who volunteer to serve their country
and are stationed outside the United States have to surrender the
protection of these rights. They can't use their own funds to obtain
abortion services in our safe military medical facilities. It is ironic
that active-duty service members who are sent abroad to protect and
defend our rights are unnecessarily denied their own in the process.
Mr. President, the Supreme Court has, time and time again, affirmed
that reproductive rights are constitutionally protected rights. Roe v.
Wade is still the law of our land. Congress has even passed legislation
making it illegal to prevent or hinder a woman's access to clinics that
provide abortion services. And yet we are here again trying to protect
the constitutional rights of a group of women who are willing to die to
protect the constitutional rights of all Americans. This is a fight we
shouldn't have to wage in this chamber, Mr. President.
I'd like to respond to some of the arguments that have been made
against this amendment. This amendment does not advocate Federal
funding of abortions. Women service members, not the American taxpayer,
are entirely responsible for the cost of these services. Furthermore,
as per current policy, this amendment would not force any individual
service member to perform a procedure to which he or she objects.
I urge my colleagues to support this amendment and give military
service members and their dependents the same protections whether
stationed in this country or abroad. The women of our Armed Forces
should not be forced to risk their health, safety, and well-being via
back-alley abortions or substandard foreign health care services. The
Murray-Snowe amendment provides the women who have volunteered to serve
this Nation and are assigned to duty outside the United States with the
range of constitutional rights that they have when they are on American
soil. We owe this to our American soldiers, sailors, airmen, and
marines. I urge my colleagues to support this amendment.
Mr. KENNEDY. Mr. President, I strongly support this amendment, and I
commend my colleagues, Senator Murray and Senator Snowe, for
introducing it again this year. This is an issue of basic fairness for
all of the women who have voluntarily dedicated their lives to
protecting our country or who are dependents of military service
members.
The current ban on abortions at U.S. military facilities overseas
discriminates against women who are serving abroad in our armed forces.
This ban is not fair to our servicewomen, and it is unacceptable. They
are willing to risk their lives for our country, and it is wrong for
our country to ask them to risk their lives to obtain the health care
that is their constitutional right as American citizens.
Abortion is illegal in many of the countries where our servicewomen
are based. The current ban on abortions endangers their health by
limiting their access to reproductive care. Without proper care,
abortion can be a life-threatening or permanently disabling procedure.
It is unacceptable to expose our dedicated servicewomen to risks of
infection, illness, infertility, and even death, when appropriate care
can easily be made available to them.
Over 100,000 American women live on military bases overseas and rely
on military hospitals for their health care. They should be able to
depend on military base hospitals for all of their medical needs. They
should not be forced to choose between lower quality medical care in a
foreign country, or travelling back to the United States for the care
they need. Forcing women to travel to another country or return to the
United States to obtain an abortion imposes an unfair burden on them
and can lead to excessive delays and increased risk.
Servicewomen in the United States do not face these burdens, since
quality health care in non-military hospital facilities is readily
available. It is unfair to ask those serving abroad to suffer a
financial penalty and expose themselves to health risks that could be
life-threatening.
Congress has an obligation to provide safe medical care for those
serving our country both at home and abroad. This amendment does not
ask that these procedures be paid for with federal funds. It simply
asks that servicewomen overseas have the same access to all medical
services as their counterparts at home.
Every woman in the United States has a constitutionally-guaranteed

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right to choose whether or not to terminate her pregnancy. A woman's
decision to have an abortion is a very difficult and extremely personal
one, and it is wrong to impose an even heavier burden on women who
serve our country overseas. It is time for Congress to end this double-
standard for women serving abroad. I urge the Senate to support the
Murray-Snowe amendment and correct this grave injustice.
Mrs. FEINSTEIN. Mr. President, as the Senate debates the FY 2001
Department of Defense authorization bill, I want to add my support for
the amendment offered by Senators Murray and Snowe to repeal the
provision of current law that prohibits the use of DOD facilities for
abortion services. This prohibition is particularly harsh for women who
serve their country overseas.
Current law has two bans: (1) a ban on the use of any DOD funds to
perform abortions, except if the life of the mother is endangered; and
(2) a ban on using DOD facilities to perform an abortion except if the
life of the mother were endangered or in the case of rape or incest.
The Murray-Snowe amendment would repeal the second ban, on using a DOD
facility to perform an abortion except where the life of the mother
would be endangered or in the case of rape or incest.
This amendment does not force DOD to pay for abortions. It simply
repeals the current ban on using DOD medical facilities. This ban works
a particular hardship on military women stationed overseas because if
they cannot use DOD facilities, they are forced to find private
facilities, which may be unfamiliar, substandard, or far away.
I support this amendment for several reasons.
First, under several Supreme Court decisions, a woman clearly has a
right to choose. A woman does not give up that right because she serves
in the U.S. military or is married to someone serving in the military.
Barring the use of U.S. military facilities creates a particular
difficult barrier to exercising that constitutionally protected right
when serving in another country.
Second, this prohibition in current law can endanger a woman's
health, if she has to travel a long distance or wait to find an
appropriate facility or physician. Women may not have ready access to
private facilities in other countries. A woman stationed in that
country or the wife of a service member might need to fly to the U.S.
or to another country--at her own expense--to obtain an abortion
because some countries have very restrictive laws on abortion. Most
service members cannot easily bear the expense of jetting off across
the globe for medical treatment.

If women do not have access to military facilities or to private
facilities in the country where they are stationed, they could endanger
their own health because of delay and the time it takes to get to a
facility in another country or by being forced to get treatment by
someone other than a licensed physician.
We know from personal experience in this country that when abortion
is illegal, some women--especially desperate young women--resort to
unsafe and life-threatening methods. If it were your wife, or your
daughter, would you want her in the hands of an untrained, unknown
person on the back streets of Seoul, South Korea? Or would you prefer
that she be treated by a trained physician in a U.S. military facility?
Under the current prohibition, women could put themselves at great risk
by the hurdles required, by the possibility of using an untrained,
unlicensed person and sometimes by a lack of knowledge of the
seriousness of their condition.
People who serve our country agree to put their lives at risk to
defend their country. They do not agree to put their health at risk
with unknown medical facilities that may not meet U.S. standards. With
this ban, we are asking these women to risk their lives doublefold.
Current law does not force any military physician to perform an
abortion against his or her will. All branches have a ``conscience
clause'' that permits medical personnel to choose not to perform the
procedure. What we are talking about today is providing equal access to
U.S. military medical facilities, wherever they are located, for a
legal procedure paid for with one's own money.
The Department of Defense supports this amendment. A May 7 letter
from Dr. Sue Bailey, the Assistant Secretary of Defense says the
following:

The Department believes it is unfair for female service
members, particularly those members assigned to overseas
locations, to be denied their Constitutional right to the
full range of reproductive health care, to include abortions.
The availability of quality reproductive health care ought to
be available to all female members of the military.

Abortion is legal for American women. To deny American military women
access to medical treatment they can trust is wrong. I urge my
colleagues to vote the Murray-Snowe amendment.
Mr. HUTCHINSON. Mr. President, may I inquire as to how much remains
on each side?
The PRESIDING OFFICER. The sponsor of the amendment has 10 minutes
remaining; the opposition has 15 minutes remaining.
The Senator from Washington.
Mrs. MURRAY. Mr. President, I will address a few of the issues that
have been raised.
First, the Department of Defense stand on this: We have it confirmed
that Secretary Cohen, the Secretary of Defense, does support this
amendment. Several people have questioned Dr. Sue Bailey, who is
Assistant Secretary of Defense, and wrote a very eloquent letter in
support of this position. She did recently leave the Department.
However, the Department's policy still is intact. Despite her being
gone, the Department policy remains strongly the same.
Second, I keep hearing the question of taxpayer funds. Let me lay
this out for everyone one more time. Current policy requires a woman
who serves in the military overseas to go to her commanding officer and
request permission for leave of absence. She cannot get free transport
without giving them a reason why. She has to go to her commanding
officer, most likely a male, explain to him that she needs abortion
services, and then we provide her transportation back to the United
States. Her transportation is usually on a C-17 or a military transport
jet that I assume costs a lot more than an abortion procedure would in
a military hospital.
What we are saying with this amendment is not to use taxpayer
dollars, despite what the opponents keep asserting. We are simply
asking that a woman who serves in the military overseas be allowed to
pay for her own health care services in a military hospital so she can
have access to a safe and legal abortion, just as women in this country
do every day.
This is an issue of fairness. We are asking the women who serve in
our military be allowed the services that every woman has a right to in
this country. They are overseas fighting to protect our rights.
Certainly, the least we can do is provide them rights as well.
I yield what time he needs to the Senator from Michigan, Mr. Levin.
The PRESIDING OFFICER. The Senator from Michigan is recognized.
Mr. LEVIN. I thank the Senator from Washington and Senator Snowe.
They have been doing an important job for the Nation.
We require an awful lot from the service men and women who serve us
here and abroad. We ask them to volunteer to serve in the military.
Then we send them all over the world to serve our Nation's interests.
When we ask them to serve in foreign countries, the least we can do is
to ensure they receive medical care equal to what they would receive in
the United States. Servicewomen and their dependents who are fortunate
enough to be stationed in the United States and who make the difficult
decision to have an abortion can, at their own expense, get a legal
abortion performed by a doctor in a modern, safe, American medical
facility with people who speak English. Military women stationed
overseas do not have that opportunity under current law.
That is what the Snowe-Murray amendment would change. The alternative
of seeking an abortion from a host nation doctor who may or may not be
trained to U.S. standards in a foreign facility where the staff may not
even speak English is an unacceptable alternative. Our servicewomen
deserve better.

This amendment is not about conferring a fringe benefit on military

[[Page S5419]]

women. It is, rather, a vote to remove a barrier to fair treatment of
women in the military. This amendment does not require the Department
of Defense to pay for abortions. As the Senator from Washington very
clearly explained again, all the expenses would be paid for by those
who seek the abortion.
The Defense Department calculates the cost of medical procedures in
military health care facilities all the time. They routinely compute
the cost of health care provided to military members and their families
when seeking reimbursement, for instance, from insurance companies.
Medical care, for instance, provided to a beneficiary who is injured in
an automobile accident is routinely reimbursed by the insurance company
of the driver at fault.
To say that we cannot calculate the indirect costs of medical care to
the Government is simply not an accurate statement of what takes place
already. The Defense Department calculates costs--direct and indirect--
to the Government right now when it charges a third party for
reimbursement.
There is no requirement in this bill--quite the opposite--that the
Government pay for the abortion. It makes it very clear that the person
who seeks the abortion must pay for the abortion.
Finally, we have heard about military doctors who have said in the
past that they did not want to perform abortions. We heard one of our
colleagues say that doctor after doctor said they did not want to
perform an abortion.
That is why this amendment provides that abortions could only be
performed by American military doctors who volunteer to perform
abortions.
This amendment is about whether or not women who serve in the
military are going to be treated as second-class citizens. That is what
this amendment is about--whether it is going to be made more difficult
for them when serving us abroad to exercise a constitutional right
which the Supreme Court has conferred.
It is very intriguing to me that the opponents of this amendment
speak about a woman being able to receive transportation back to this
country. They don't seem to object to that; quite the opposite. They
say: Look, we are making Government-provided transportation available
to the woman. Why isn't the same objection being made to that?
The answer is because denial of access to a military hospital abroad
for an American woman who chooses to have an abortion does not
facilitate that procedure. And the opponents of this amendment, as a
matter of fact, oppose this procedure. They want to make it more
difficult. And forcing a woman to ask a commander to have leave and
then, if transportation is going to be made available, provide
transportation back to the United States to have an abortion, and then
back across the ocean overseas, clearly makes it more difficult and in
many cases more dangerous for that woman to have the procedure.
That is what this debate is all about. It is not about whether the
Government is going to pay for the abortion or whether this is a fringe
benefit. It is not. The woman must pay for it in that hospital by a
doctor who voluntarily agrees to perform it.
This amendment is about whether or not we wish to remove a barrier
which has been placed in front of a woman who chooses to exercise, at
her own expense, that constitutional right.

I hope the votes will be here this time to remove this badge of
second-class citizenship which now exists in the law which unduly,
unfairly, and sometimes dangerously restricts the right of a woman who
is serving us in our military to exercise her constitutional right.
I again thank my friend from Washington for her leadership.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arkansas.
Mr. HUTCHINSON. Mr. President, I yield myself all but the remaining 2
minutes of the time allotted to my side.
Let me clarify a couple of things from my perspective.
It has been alleged that if you have a servicewoman who is seeking an
abortion under current policy, you put her on an aircraft, fly her back
to the U.S. at taxpayers' expense, and therefore what is the
difference? And the only reason we want to maintain the current policy
is we want to put an impediment up to a woman having an abortion.
The current DOD policy for servicewomen seeking to obtain abortions
is that they may fly on a space-available basis, if the aircraft are
already making the trip for operational reasons--not for the purpose of
facilitating abortions. Space-available transportation is available for
any service member on leave regardless of what their motivation is.
These aircraft have been referred to repeatedly during the debate as
``cargo aircraft.'' In fact, these aircraft have passenger seats just
as on civilian airlines.
I wish to propound a series of questions to the distinguished Senator
from Washington, Mrs. Murray, on my time.
I ask the Senator exactly how she would calculate the cost of
reimbursing DOD for the expense of an abortion procedure. Does she
count only things consumed such as blood, bandages, and surgical tools,
or would she compute the cost of using the facility, the salaries of
the support staff, and the other medical equipment used to perform such
a procedure?
Mrs. MURRAY. Mr. President, any hospital today has to calculate
costs. Certainly I give a lot of credence to our military hospitals and
to the military officials who run them to be able to do the same thing
just as they have done prior to the time when women could have access
to these abortions.

Mr. HUTCHINSON. Mr. President, I ask Senator Murray, if her proposal
allows, as she argues, for a true calculation of the expenses, how much
does she calculate the Government would be reimbursed for performing an
abortion?
Mrs. MURRAY. Mr. President, that question goes directly to what the
military is able to do, which is to themselves figure out what the cost
is and bill it. It is an easy thing to do. They have done it before. It
is not up to me to calculate the cost. Our military officials who run
our hospitals are highly qualified individuals who have the ability to
figure out what their costs are.
Mr. HUTCHINSON. After 1993, when the President, by Executive
memorandum, ordered that military hospitals provide abortions overseas,
there was, as the Senator from Washington knows, no physician who
volunteered to do that. Where there would be no current doctors
volunteering to perform abortions, does it envision the possibility of
contracting civilian doctors to perform abortions in military
facilities?
Mrs. MURRAY. Mr. President, we have the ability within our military
hospitals right now to contract procurements of what our military
personnel need. It would frighten me a great deal as a woman serving in
the military if none of our military hospitals overseas knew how to
perform an abortion in an emergency in case a woman's life is at risk,
which we now need to know is available. If we are saying there are no
doctors available anywhere in the entire world where we have service
people available to perform that service, I would be frightened as a
woman in the military service today if my life was at stake and there
would not be a doctor available to help me.
Mr. HUTCHINSON. I take it that the answer is, yes, that the Senator
envisions contracting doctors to perform.
Mrs. MURRAY. Just as we do with any other requirement in the
military.
Mr. HUTCHINSON. In such an instance, would DOD then identify the
contract physician?
Mrs. MURRAY. I would assume so. But, again, I would like to point out
that we will bill the woman for the costs, whether it is contracted or
not. She will be liable to pay.
Mr. HUTCHINSON. Is the Senator proposing that the Department of
Defense perform elective abortion procedures in countries where
abortions are prohibited by law?
Mrs. MURRAY. Our military hospitals overseas are on military
facilities and go by American law. They would be performed in those
facilities overseas on our property.
Mr. HUTCHINSON. I thank the Senator. I appreciate very much her
candor in answering the questions. I think it has been illuminating.

[[Page S5420]]

I would like to go back on some of these questions. Frankly, it has
been made very clear by the Department of Defense, as I stated earlier,
that they do not currently have the ability to make these calculations
on a case-by-case basis.
I quote once again that ``procedures performed in military hospitals
are assigned a diagnostic-related group code, but these are assigned or
allocated costs that do not necessarily reflect resources devoted to a
specific case.''
That is very plain.
They further go on and say that military infrastructure and overhead
costs cannot at the present time be allocated on a case-by-case basis.
As much as we would like to say and as much as I believe the
proponents of this amendment are sincere, it is not currently possible
for the Department of Defense to calculate what portion of the
infrastructure, the equipment and facilities, should be allocated to an
individual servicewoman seeking an abortion. That simply means we will,
in fact, be subsidizing abortion procedures, and in doing so violate
existing law.
I raise another issue as we think about Senator Murray's response to
my questions. She said: Yes, in the case that you contract for a
physician, it would be assumed that the proper defense would indemnify
the contract physician. That means that the U.S. Department of Defense
becomes the malpractice insurer for that abortion provider, that
contract physician. It means that should there be a botched abortion,
that doctor doesn't have to worry about malpractice because it is the
U.S. Government that will, in fact, indemnify those costs. The Senator
is correct; it is a terrible liability we would be assuming.
Senator Murray, in her response to my questions, also said it was her
understanding that her amendment would allow elective abortion
procedures to be performed in countries where abortion is prohibited by
law. That is a very candid confession because that would dramatically
change current DOD policy. This amendment would, in fact, allow
abortions to be performed in countries where it is against the law.
That includes South Korea, where we have 5,958 women serving. It
includes Germany, where there are 3,013 women serving. Over 9,000 women
serve overseas.
We are not just changing one Department of Defense policy. We are
changing current policy that honors the laws of the countries in which
these men and women are serving, a dramatic change from current policy
and one of which my colleagues certainly need to be aware.
Much of this debate has been about providing abortions to military
personnel overseas. The amendment would remove the restrictions on
performing abortions at all military hospitals, even in the United
States.
I urge my colleagues to look closely at the Murray amendment and
exactly what it seeks to amend. I want my colleagues to be aware this
amendment permits abortions at any military facility overseas or in the
United States. This is not a simple refinement of current policy. This
is not something dealing with the quality and fairness.
It can be argued that if it does not overturn current DOD policy
regarding countries where abortion is illegal, you are only going to
exacerbate any disparity that exists by saying some women overseas
would be able to go to an American military facility and receive an
abortion and others in countries where it was illegal would not. This
is a dramatic change that would not only permit abortions in military
facilities overseas but would also make a dramatic change in military
facilities in the United States.
The arguments are clear and the arguments are persuasive. It is a
mistake for this Congress to intervene and change current DOD policy, a
policy that has worked well, a policy that accommodates women in
uniform who desire to have an abortion, but without turning the
American taxpayer into subsidizers of a practice that they find deeply,
deeply offensive.

In Senator Murray's response to my question regarding what this
amendment would do to our current policy regarding abortions in
countries where it is illegal, we could have a dramatic and detrimental
effect on our diplomatic relationships with our allies. Would Saudi
Arabia continue to permit U.S. forces to remain if we permitted
abortions at our facilities? How would the South Korean Government
react to having abortions, which are illegal in South Korea, performed
at the U.S. military facilities? These are serious issues. This is not
something to be trifled about in a 2-hour debate on the floor of the
Senate, as if we are trying to provide equity and to be fair to our
women and military overseas.
The evidence is clear. The Murray amendment violates the Hyde
provision in current law. The Hyde provision says we are not going to
subsidize abortions; we are not going to spend public funds for
abortions. It is a provision that has wide, broad, bipartisan support
across this country. In fact, it is supported by both those who are
pro-choice and those who are pro-life, who believe, even if a woman has
this constitutional right, those who are offended by that, those who
believe it is wrong, should not be required to subsidize it.
The Murray amendment chips away at that basic provision supported by
the American people. It says she may have to pay something, but we are
going to use taxpayer-funded facilities, taxpayer supported and paid
for salaries, support staff, and equipment. If that is not subsidizing
it, I am not sure what is. The Department of Defense has made it clear
that trying to calculate the infrastructure, support staff, salaries,
and everything else that goes into a military health care facility
simply cannot currently, understandably, be computed on a case-by-case
basis.
The issue about indemnification of contracted doctors is a serious
issue that bears very serious consideration by this Senate. It is an
issue that has not been previously raised. Senator Murray said, yes,
if, as in 1993 when not one physician in the military volunteered to
perform abortions when the President said we were going to offer these
services in military facilities around the world, not one volunteered
to do that, Senator Murray says in that circumstance, should that
recur, under her amendment we will go out and contract. If we go out
and contract physicians, it is a very clear and explicit violation of
the Hyde amendment and, in addition, subjects the U.S. Government to
untold liability.
I believe men and women of good will differ and do sincerely differ
on the abortion issue. I do believe that men and women of good will,
respecting the sincere convictions of others, do not believe those who
are offended by the practice of abortion should be required to
subsidize it. That is what is at issue. There can be no serious
question. There can be no real debate that, in fact, by taking the step
the Murray amendment suggests, we are going to put the U.S. military in
the business of performing abortions. I don't believe that is supported
by the American people. I don't believe that is in the spirit of the
Hyde law. I don't believe that meets the criteria of the letter of that
law.
It would be a terrible mistake down the slippery slope of providing
abortion in this country to pass the Murray amendment and, in so doing,
make millions and millions and millions of Americans who feel very
deeply about this issue involuntary contributors to the practice of
abortion by having this procedure done in military facilities not only
overseas but here in the United States.
I yield the floor.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. Mr. President, I only have 33 seconds. I find it
incredible that the argument has been made that if we allow women to
pay for their own abortions in military facilities overseas, it will
undermine our relationships with our host countries. We have sovereign
law that covers our military facilities. If we were to flip that
argument, we could simply say that in a country that provides
abortions, if we don't provide them in our hospitals, it may also
seriously undermine our credibility.
This amendment is about allowing the women overseas who serve our
country and fight for us every day the same rights as the women in this
country. I urge my colleagues to support this amendment and to send a
message to the women who serve us overseas that we, too, will fight for
their rights.
The PRESIDING OFFICER. The Senator from Arkansas.

[[Page S5421]]

Mr. HUTCHINSON. Mr. President, I ask unanimous consent that when all
debate time on the Murray amendment expires, there be an additional 20
minutes of debate relating to the hate crimes amendment, equally
divided between Senators Hatch and Kennedy. I further ask unanimous
consent that following that debate, there be 4 minutes equally divided
for closing remarks relative to the Murray amendment prior to the
scheduled series of rollcall votes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HUTCHINSON. I yield any remaining time on our side.

Amendment No. 3474

The PRESIDING OFFICER. All time has expired on the Murray amendment.
Who yields time? The Senators from Massachusetts and Utah control time
on the debate on the Hatch amendment.
Mr. KENNEDY. Mr. President, as I understand it, Senator Hatch will
control 10 minutes; am I correct?
The PRESIDING OFFICER. The Senator is correct. Senator Hatch controls
10 minutes and Senator Kennedy controls 10 minutes.
The Senator from Utah.
Mr. HATCH. Mr. President, I rise to speak in favor of the amendment
that I have offered concerning the horrible crimes that are being
committed in our country that have come to be known as hate crimes.
They are violent crimes that are committed against a victim because of
that victim's membership in a particular class or group. These crimes
are abhorrent to me, and I believe to all Americans who think about it.
They should be stopped. That is why I have offered this amendment.
My amendment does two things. First, it requires that a comprehensive
analysis be conducted to determine whether State and local
jurisdictions are failing or refusing to prosecute hate-motivated
crimes to the fullest extent possible. Second, it provides assistance
to State and local jurisdictions who lack the resources to carry out
their duties of combating hate crimes.
Let me talk about the comprehensive study first. Under the Hate
Crimes Statistics Act, data has been collected regarding the number of
hate-motivated crimes that have been committed throughout the country.
This data, however, has never been properly analyzed to determine
whether States are abdicating their responsibility to investigate and
prosecute hate crimes. My amendment calls for a comprehensive analysis
of this raw data that would include a comparison of the records of
different jurisdictions--some with hate crimes laws, others without--to
determine whether there, in fact, is a problem with the way certain
States are investigating and prosecuting these crimes.
Supporters of broad hate crimes legislation, like that proposed in
the Kennedy amendment, claim that there are States and localities that
are unwilling to investigate and prosecute hate crimes. It is unclear
whether this claim is true. There is precious little evidence showing
that there is a widespread problem with State and local police and
prosecutors refusing to enforce the law when the victim is black, or a
woman, or gay, or disabled.
At the hearing on hate crimes legislation that we held in the
Judiciary Committee, Deputy Attorney General Eric Holder came to
testify and explain the reasons why the Justice Department supports the
expansive legislation proposed by Senator Kennedy. I asked Mr. Holder
the rather basic and straightforward question of whether 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.'' After he gave a somewhat non-responsive
answer, I asked him again: ``Can you give me specific instances where
the States have failed in their duty to investigate and prosecute hate
crimes?'' Mr. Holder could not. He then indicated that he would go back
to the Justice Department, conduct some research, and then provide the
Judiciary Committee with the specific instances for which I asked.
In a subsequent response to written questions, the Justice Department
identified three cases in which the Justice Department ``filed charges
against defendants . . . after determining that the state response was
inadequate to vindicate the federal interest.'' In addition, the
Department identified two cases where the Justice Department determined
that the State could not ``respond as effectively as the Federal
Government because, for example, State penalties are less severe.''
These five cases hardly show wholesale abdication of prosecutorial
responsibilities by State and local prosecutors. To the contrary, these
cases show that State and local authorities are vigorously combating
hate crimes and, where necessary, cooperating with Federal officials
who may assist them in investigating, charging, and trying these
defendants.

During the debate yesterday, Senator Kennedy indicated that the
Justice Department had produced additional examples of cases where
State and local prosecutors have failed or refused to prosecute hate
crimes. There are three of these additional cases. I have to say,
however, that the three additional cases produced by the Justice
Department and cited by Senator Kennedy do not establish that State and
local authorities are unwilling to combat hate crimes.
So where does that leave us? We are being asked to enact a broad
federalization of all hate-motivated crimes that historically have been
handled at the State and local level because, it is argued, States and
local authorities are either unable or unwilling to prosecute them. My
amendment's grant program addresses the first concern--that States and
localities, because of a lack of resources, are unable to prosecute
these crimes. If there is not enough money there, let's put enough
money into the bill. I am not against increasing the sums. As for the
second concern, we are being asked to conclude that States and
localities are unwilling to prosecute hate-motivated crimes on the
basis of eight cases--eight cases out of the thousands and thousands of
criminal cases that are brought each year. Eight cases, I might add,
that at the very least are equivocal on the issue of whether States and
localities are failing or refusing to prosecute hate crimes.
Supporters of the Kennedy amendment also cite to the horrible beating
death of Matthew Shepard in Laramie, WY, and the dragging death of
James Byrd, Jr. in Jasper, TX, as evidence that there is a problem that
Congress should address. But the Shepard and Byrd cases prove my point.
Both were fully prosecuted by local authorities who sought and obtained
convictions. In the Byrd case, the defendants were given the death
penalty--something that would not be permitted under the Kennedy
amendment.
This is not a case where my mind is made up; where no matter what
evidence I am shown of dereliction by State and local authorities in
the area of hate crimes, I would say that it is not enough, or is not
sufficient for me to believe that there is a problem. I am open to the
possibility that State and local authorities are not doing their part.
I hope that is not true, but my mind is not made up. That is why my
amendment calls for a comprehensive study that would carefully and
thoroughly and objectively study the data we have collected to see if
there is a disparity in the investigation and prosecution of hate
crimes. If there is a problem with prosecution at the State level, then
I am on record calling for an effective and responsible Federal
response.
To summarize: My amendment calls for a comprehensive analysis of hate
crimes statistics to determine whether, in fact, any State and local
law enforcement authorities are unwilling, for whatever reason, to
combat these horrific crimes. Even if the eight cases identified by the
Justice Department did show that State and local authorities were
unwilling to investigate and prosecute hate-motivated crimes, they
still would only be eight cases out of the thousands and thousands of
cases that are brought each year. They simply do not show a widespread
problem regarding State and local prosecution of hate-motivated crime.

In fact, if you look at them it show that the system is working and
the two bodies, the State and local prosecutors and the Federal
prosecutors generally work together and they simply do not show a
widespread problem regarding State and local prosecutions of hate-
motivated crime.

[[Page S5422]]

Reasonable people should agree that an analysis of the hate crimes
statistics that have been collected ought to be conducted to determine
whether there is anything to the argument that State and local
authorities are failing to combat hate crimes. If the study shows that
State and local authorities are derelict in their duties when it comes
to hate crimes, I will be the first to support legislation targeted at
such government conduct.
The second main thing that my amendment does is create a grant
program to help provide resources to States and local jurisdictions to
investigate and prosecute hate-motivated crimes. Supporters of the
Kennedy amendment claim that some State and local jurisdictions do not
have adequate resources to combat hate crimes. They say that these
jurisdictions, while willing to combat hate crimes, are unable to do so
because they lack the resources. My amendment answers this very real
concern. My amendment would equip States and localities with the
resources necessary so that they can combat such crimes. And my
Amendment would do so without federalizing every hate-motivated crime.
Now, I should make clear what my amendment does not do. It does not
create a new federal crime. It does not federalize crimes motivated
because of a person's membership in a particular class or group. Such
federalization would, in my estimation, be unconstitutional and would
unduly burden federal law enforcement, federal prosecutors and federal
courts.
I must say that the serious constitutional questions that are raised
by the Kennedy amendment's broad federalization of what are now State
crimes is its greatest drawback. The intention of Senator Kennedy's
amendment--to combat hate-motivated crimes--is certainly praiseworthy.
But the Kennedy amendment's method for achieving this laudable aim--by
making a federal case out of every hate-motivated crime--is not. If
enacted, the Kennedy amendment likely will be struck down as
unconstitutional. As I discussed at length yesterday, Congress simply
does not have the authority to enact such broad legislation under
either Section 5 of the Fourteenth Amendment or the Commerce Clause.
This is clear in light of the Supreme Court's decision last month in
United States v. Morrison.

During the debate yesterday it was argued that the Thirteenth
Amendment provides Congress with the authority to enact the Kennedy
amendment. I respectfully disagree. The Thirteenth Amendment provides:

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

Under this amendment, Congress is authorized to prohibit private
action that constitutes a badge, incident or relic of slavery. An
argument could perhaps be made that the failure or refusal by State
authorities to investigate and prosecute crimes committed because the
victim is an African-American constitutes a badge or incident or relic
of slavery. But while this creative, Thirteenth Amendment argument
possibly may work for federal regulation of hate crimes committed
against African-Americans, it simply does not work for federal
regulation of hate crimes against women, or gays, or the disabled, as
the Thirteenth Amendment applies only to the badges or incidents or
relics of slavery. At no time in our nation's history, thank goodness,
have our laws sanctioned the enslavement of women, homosexuals or the
disabled.
Supporters of the Kennedy amendment argued yesterday that the Justice
Department has placed its stamp of approval on this creative,
Thirteenth Amendment argument. I am fairly confident, however,
notwithstanding the Justice Department's opinion, that the Supreme
Court will not interpret the Thirteenth Amendment so expansively.
In conclusion, it is my hope that my colleagues who intend to vote
for the Kennedy amendment will also support my amendment. While I
strongly disagree with the approach taken by the Kennedy amendment, the
two amendments are not inconsistent. My amendment provides for a strong
and workable assistance program for State and local law enforcement.
Indeed, it has the support of the National District Attorneys
Association. Further, my amendment requires a comprehensive study so
that we can really learn what, if any, problems and difficulties exist
at the State and local level.
With that, I reserve the remainder of my time.
Mr. KENNEDY. Mr. President, I yield 2 minutes to the Senator from
Virginia.
The PRESIDING OFFICER. The Senator from Virginia is recognized for 2
minutes.
Mr. ROBB. Mr. President, I rise to support the Smith-Kennedy
legislation. This legislation will simply strengthen existing hate
crime laws by enhancing the Federal Government's ability to assist
State and local prosecutions. It is a little bit like Project Exile,
which is so much in vogue and which has been practiced so successfully
in Richmond, VA. This will allow the resources of the Department of
Justice to be made available where appropriate to investigate and
prosecute those in our society who commit acts of brutality based on
hate. The dragging death of James Byrd, Jr., an African American man in
Jasper, TX, the torture and death of Matthew Shepard, a homosexual male
in Laramie, WY, shocked the national conscience. Hate crimes have
occurred in the Commonwealth of Virginia as well.
In 1999, a man was sentenced to life in prison and fined $100,000 for
his role in the death of an African American man who was beheaded and
burned in Independence, VA. And a homosexual man was murdered and his
severed head was left atop a footbridge near the James River in
Richmond, VA. It is hard to imagine the pain and suffering of the
victims and their families.
This legislation does not allow individuals to be prosecuted for
their hateful thoughts; rather it allows them to be punished for their
hateful acts. Willfully inflicting harm on another human being based on
hate is not protected free speech. I urge my colleagues to support this
amendment and demonstrate our commitment to eradicate the hate.
I reserve any time remaining to the Senator from Massachusetts.
The PRESIDING OFFICER. Who yields time?
Mr. KENNEDY. I yield 5 minutes to the Senator from Oregon.
The PRESIDING OFFICER. The Senator from Oregon is recognized for 5
minutes.
Mr. SMITH of Oregon. Mr. President, I rise today as a cosponsor of
the Kennedy-Smith amendment. I also rise to announce my support for the
amendment offered by Senator Hatch. I ask my colleagues, in voting for
Senator Hatch's amendment, to vote for Senator Kennedy's as well. It is
fine to study, but I think we know enough. We know that hate crimes are
already committed in our society.
When I, as a human being, wake up to read headlines of a black man
dragged to death and a gay man beaten to death, I want to do something.
I believe in the separation of State governments and the Federal
Government. I understand all of that. But doggone it, it is OK for the
Federal Government to show up to work. It is time for us to say as
Republicans and Democrats that we want to make a difference. We want
our police officers to help not primarily but secondarily and to be
there to teach, to prosecute, and to pursue those who commit the most
malignant of crimes.
I say to my colleagues, there are two critical words, in my view,
missing in Senator Hatch's amendment. The words are ``sexual
orientation,'' as it applies to making it a Federal crime. I never
thought I would be on the Senate floor saying this until I saw the
report of Matthew Shepard's death. I began to ask myself what I could
do.
Many in the Senate are reflexively inclined to vote no on the Kennedy
amendment because of feelings of religious reluctance. I understand
that because I shared those feelings for a long time. Then I happened
upon a story in a book that I regard as Scripture. It is in the eighth
chapter of John when the Founder of the Christian faith was confronted
by the Pharisees and the Sadducees of His day with a hate crime. A
woman who was caught in the very act was to be stoned to death. What
did He do? His response was to speak in such a way to shame the self-
righteous and

[[Page S5423]]

the sanctimonious to drop their stones, and He saved her life. We
should do the same.

I do not believe on that day He endorsed her lifestyle anymore than I
believe anyone here will be endorsing any lifestyle if they vote for
the Kennedy-Smith amendment. I believe what my colleagues will be doing
is following an example that says when it comes to violence and hatred,
we can stand up for one another. No matter our distinctions, no matter
our uniqueness, no matter our peculiarities, no matter how we pray or
how we sin, we can stand up for each other, and we can stand up against
hate.
I say to my colleagues: Vote for Senator Hatch's amendment. It is
fine, but it does not go far enough, in my view, and it is time to go
far enough to include this group of Americans who are not now included
in a current Federal law.
The PRESIDING OFFICER. The time allocated to the Senator has expired.
Mr. SMITH of Oregon. Mr. President, I conclude with this plea: Put
down the stone and cast a vote based on love, cast a vote against
hatred and vote for the Kennedy-Smith amendment.
The PRESIDING OFFICER. Who yields time?
Mr. HATCH. Mr. President, how much time does the Senator from Utah
have?
The PRESIDING OFFICER. The Senator has 2 minutes 52 seconds
remaining.
Mr. HATCH. Mr. President, the distinguished Senator from Oregon made
my case. I decry what happened in the Matthew Shepard case. I decry
what happened in the James Byrd case. Those horrific crimes, however,
were investigated by local authorities and prosecuted by local
prosecutors. In both instances, the local prosecutors obtained
appropriate sentences--life terms in the case of the Shepard defendants
and death sentences in the case of the Byrd defendants. Local law
enforcement and local prosecutors did their jobs and investigated and
prosecuted truly awful hate crimes.
All of these horrible examples of hate crimes were handled properly
by State and local authorities. That is why my amendment is strongly
supported by the National District Attorneys Association, the major
organization that represents State and local prosecutors throughout the
country.
The National District Attorneys Association has endorsed my amendment
because State and local prosecutors believe that the assistance offered
in my amendment would be very helpful to them as they seek to fight
hate-motivated crime.
In a letter of support, the National District Attorneys Association
also states that it strongly endorses my amendment because my amendment
``appropriately recognizes that local law enforcement has the primary
responsibility to safeguard their citizens while working as a team with
the Federal Government.''
I have at least a couple of problems with the Kennedy amendment.
First, it is unconstitutional. The Morrison case, decided only a month
ago, is directly on point and leads to the inexorable conclusion that
the Kennedy amendment, if adopted, will be struck down as
unconstitutional. Second, the Kennedy amendment is overbroad. It would
make a federal case out of every single hate-motivated crime that
occurs in this country--including all rapes and sexual assaults, which
currently are prosecuted under State law. Can you imagine what will
happen if our Federal courts are clogged with all the rape cases in
this country that are currently being handled very well by State and
local prosecutors? That is why the National District Attorneys
Association is strongly supportive of what I am trying to do here
today.
My amendment takes action with regard to the horrible crimes that are
being committed in our country that have come to be known as hate
crimes. They are violent crimes that are committed against a victim
because of that victim's membership in a particular class or group.
These crimes are abhorrent to me, and to all Americans. They should be
stopped. That is why I have offered this amendment.
My amendment does two things. First, it requires that a comprehensive
analysis be conducted to determine whether State and local
jurisdictions are failing or refusing to prosecute hate-motivated
crimes to the fullest extent possible. Second, it provides assistance
to State and local jurisdictions who lack the resources to carry out
their duties of combating hate crimes.
Let me talk about the comprehensive study first. Under the Hate
Crimes Statistics Act, which I worked to get enacted in 1990, data has
been collected regarding the number of hate-motivated crimes that have
been committed throughout the country. This data, however, has never
been properly analyzed to determine whether States are abdicating their
responsibility to investigate and prosecute hate crimes. My amendment
calls for a comprehensive analysis of this raw data that would include
a comparison of the records of different jurisdictions--some with hate
crimes laws, others without--to determine whether there, in fact, is a
problem with the way certain States are investigating and prosecuting
these crimes.
Supporters of broad hate crimes legislation, like that proposed in
the Kennedy amendment, claim that there are States and localities that
are unwilling to investigate and prosecute hate crimes. It is unclear
whether this claim is true. There is little or no evidence showing that
there is a widespread problem with State and local police and
prosecutors refusing to enforce the law when the victim is black, or a
woman, or gay, or disabled. Of the thousands--perhaps hundreds of
thousands--of criminal cases that are brought every year, the Justice
Department could identify only five cases where it believed that it
could have done a better job than the States in prosecuting a
particular hate crime. In each of these five cases, however, the States
either investigated and prosecuted the hate crime themselves, or worked
with the federal government to investigate and prosecute the hate
crime. In none of these cases did the perpetrator of the hate crime
escape the heavy hand of the law.
In United States v. Lee and Jarrad, a 1994 case from Georgia, the
State obtained a guilty plea from one of the defendants and, after
investigating the matter for several months, determined that there was
insufficient evidence to prosecute the other defendant.
In United States v. Black and Clark, a 1991 case from California, the
county sheriff--who lacked resources--ceded investigatory authority to
the FBI after the federal government indicated its desire to
investigate and prosecute the case. Because the defendants were charged
federally, State prosecutors declined to bring State charges. My
amendment would provide grants for similarly situated Sheriffs who
operate on a tight budget.
In United States v. Bledsoe, a 1983 case from Kansas, the State
prosecuted the defendant for homicide and, after a trial, the defendant
was acquitted. The Justice Department then brought federal charges and
obtained a life sentence.
In United States v. Mungia, Mungia and Martin, a Texas case, state
prosecutors worked with federal prosecutors and agreed that federal
charges were preferable because (1) the defendants could be tried
jointly in federal court and (2) overcrowding in State prisons might
have led to the defendants serving less than their full sentences.
And, in United States v. Lane and Pierce, a 1987 case from Colorado,
State prosecutors worked with federal prosecutors and agreed that
federal charges were preferable because most of the witnesses were in
federal custody in several different States.
These five cases hardly show wholesale abdication of prosecutorial
responsibility by State and local prosecutors. To the contrary, these
cases show that State and local authorities are vigorously combating
hate crimes and, where necessary, cooperating with federal officials
who may assist them in investigating, charging, and trying these
defendants.
During the debate yesterday, Senator Kennedy indicated that the
Justice Department had produced to the Judiciary Committee additional
examples of cases where State and local prosecutors have failed or
refused to prosecute hate crimes.
In fact, the Justice Department did identify three additional cases
to Senator Kennedy. However of these three additional cases produced by
the Justice Department and cited by Senator

[[Page S5424]]

Kennedy, none establishes that State and local authorities are
unwilling to combat hate crimes.
In the 1984 case of United States v. Kila, the State authorities who
were investigating the case requested that the Justice Department
become involved in the case and bring federal charges. A federal jury
then acquitted the defendants of the federal charges.
In a 1982 case that the Justice Department does not name, the
defendant was acquitted of federal charges; the Justice Department does
not state whether State charges were brought or whether the local
prosecutors simply deferred to the federal prosecutors.
And, in United States v. Franklin, a 1980 case from Indiana, the
defendant was acquitted of federal charges; again, the Justice
Department does not state whether State charges were brought or whether
local prosecutors deferred to federal prosecutors.
In summary, my amendment calls for a comprehensive analysis of hate
crimes statistics to determine whether, in fact, any State and local
law enforcement authorities are unwilling, for whatever reason, to
combat these horrific crimes.
Even if the eight cases I have just discussed did show that State and
local authorities were unwilling to investigate and prosecute hate-
motivated crimes, they still would only be eight cases out of the
thousands and thousands of cases that are brought each year. In no way
do they show a widespread problem regarding State and local prosecution
of hate-motivated crime. Reasonable people should agree that an
analysis of the hate crimes statistics that have been collected ought
to be conducted to determine whether there is anything to the argument
that State and local authorities are failing to combat hate rimes. If
the study shows that State and local authorities are derelict in their
duties when it comes to hate crimes, I will be the first to support
legislation targeted at such government conduct.

The second main thing that my amendment does is create a grant
program to help provide resources to States and local jurisdictions to
investigate and prosecute hate-motivated crimes. Supporters of the
Kennedy amendment claim that some State and local jurisdictions do not
have adequate resources to combat hate crimes. They say that these
jurisdictions, while willing to combat hate crimes, are unable to do so
because they lack the resources. My amendment seeks to answer this very
real concern. My amendment would equip States and localities with the
resources necessary so that they can combat such crimes. And my
amendment would do so without federalizing every hate-motivated crime.
Now, I should make clear what my amendment does not do. It does not
create a new federal crime. It does not federalize crimes motivated
because of a persons's membership in a particular class or group. Such
federalization would, in my estimation, be unconstitutional and would
unduly burden federal law enforcement, federal prosecutors and federal
courts.
I must say that the serious constitutional questions that are raised
by the Kennedy amendment's broad federalization of what now are State
crimes is its greatest drawback. The intention of Senator Kenndy's
amendment--to combat hate-motivated crimes--is certainly praiseworthy.
But the Kennedy amendment's method for achieving this laudable aim--by
making a federal case out of every hate-motivated crime--is not. If
enacted, the Kennedy amendment likely will be struck down as
unconstitutional. As I discussed at length yesterday, Congress simply
does not have the authority to enact such broad legislation under
either Section 5 of the 14th amendment or the commerce clause. This is
clear in light of the Supreme Court's decision last month in United
States v. Morrison.
During the debate yesterday it was argued that the 13th amendment
provides Congress with the authority to enact the legislation proposed
in the Kennedy amendment. I respectfully disagree. The 13th amendment
provides: ``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. Congress shall have the power to enforce this article by
appropriate legislation.'' An argument could perhaps be made that the
failure or refusal by State authorities to investigate and prosecute
crimes committed because the victim is an African-American constitutes
at badge or incident of slavery. But while this creative 13th amendment
argument possibly may work for federal regulation of hate crimes
committed against African-Americans, it simply does not work for
federal regulation of hate crimes against women, or gays, or the
disabled, as the 13th amendment applies only to the badges or incidents
or relics of slavery. At no time in our nation's history, thank
goodness, have our laws sanctioned the enslavement of women,
homosexuals, or the disabled.
Supporters of the Kennedy amendment argued yesterday that the Justice
Department has placed its stamp of approval on this creative 13th
amendment argument. I am fairly confident, however, notwithstanding the
Justice Department's opinion, that the Supreme Court will not interpret
the 13th amendment so expansively.
In conclusion, I urge my colleagues to vote against the Kennedy
amendment. It almost certainly is unconstitutional, given the current
state of constitutional law. In addition, it is bad policy to enact a
broad federalization of what traditionally have been State crimes--
crimes that are, by all accounts, being vigorously investigated and
prosecuted at the State and local level.
I also would urge my colleagues to vote in favor of the amendment
that I have offered. It calls for a study of the way States are dealing
with the problem of hate crimes and provides grants to States so they
will have the resources to continue their efforts. And, my amendment
has the added benefit of being constitutional. For the reasons that I
have stated, I urge my colleagues to vote in favor of my amendment.
I commend Senator Kennedy and those who are supporting his amendment
in the sense that all of us should be against this type of tyranny,
this type of criminal activity that is motivated by hate, this type of
mean, venal, vile conduct that lessens our society. But nobody should
make the mistake of not understanding that I do not think the case has
been made that States and localities are unwilling to combat hate
crimes. In the cases I have seen, the evidence is to the contrary:
States and localities are leading the fight against hate-motivated
crimes. The only way to resolve this issue regarding the willingness of
the States to engage in the fight against hate crimes is to do what I
suggest: conduct a thoroughgoing study of the hate crimes statistics
that we do have to see if, in fact, States and local jurisdictions are
not doing their jobs. I, for one, do not believe that the case has been
made against local prosecutors.
The PRESIDING OFFICER (Mr. Gorton). The Senator's time has expired.
The Senator from Massachusetts has 3 minutes.
Mr. KENNEDY. I yield to the Senator from New York.
Mr. SCHUMER. Mr. President, I thank the Senator from Massachusetts
for yielding, and I thank the Senator from Oregon for his leadership.
Right above the Presiding Officer's chair it says: E Pluribus Unum,
the motto of the United States, Out of Many One. Every hate crime puts
a dagger into the heart of America, puts a dagger into our national
motto, Out of Many One.
We have federalized so many crimes--gun crimes, drug crimes, car
jacking, capital crimes. Why, we might ask, is the only crime we do not
want to federalize that of hate?
Ask yourself that question, my colleagues. Why? They are every bit as
troubling to America as other crimes, perhaps more so because they
strike at the very fabric of what this country is about: E Pluribus
Unum.
I urge my colleagues to support the Kennedy-Smith amendment.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I yield myself the remaining time.
Mr. President, hate crimes are a national disgrace, and they attack
everything for which this country stands. We, as a Congress, must take
a clear and unequivocal stand. We have the opportunity to do so this
afternoon. It ought to be bipartisan, and it ought to be an
overwhelming statement of law.

[[Page S5425]]

As a country and as a people, we are committed to equal protection
under the law. We all take pride in that. We do not say we have equal
protection under the law only if you are a white male. We do not say we
have equal protection under the law if you have no disability. We are
not going to say we have equal protection under the law only if you are
``straight.''
We say equal protection under the law must apply to all Americans.
That is what this is about. The Hatch amendment is a study. We are
beyond studying. The American people want action on hate crimes. That
is what our amendment does, very simply.
We ought to have the support of the overwhelming majority of the
Members of this body. Hate crimes are rooted in hatred and bigotry. If
America is ever going to be America, we should root out hatred and
bigotry. We do not have all of the answers, but we ought to be able to
use the full force of our power to make sure we are going to do
everything we can--that we are not going to stand alongside but are
going to be involved in freeing this country from hate crimes. Our
amendment will do so.
The PRESIDING OFFICER. All time of the amendment has expired.

Amendment No. 3252

The PRESIDING OFFICER. Under the previous order, we will revert to
the Murray amendment, on which there are 4 minutes equally divided.
The Senator from Washington.
Mrs. MURRAY. Mr. President, we are about to vote on an amendment that
will simply allow a woman who serves us overseas in the military to go
to a military facility, if she so chooses, to have an abortion that is
safe and legal.
Current law requires that a woman who serves us overseas go to her
commanding officer and ask for permission to fly home on a military
transport, at taxpayer expense--as I say, at taxpayer expense--to fly
home on a military jet to have access to what is legally given to every
woman in this country today.
I heard our opponents say that this is an issue of taxpayer-funded
abortions. I disagree. The amendment disagrees. This will say that
women will pay for their own abortions in the military facilities.
We ask women to serve us, to fight for our rights, to go overseas in
conditions that are often intolerable, to fight for this country. In
return, we tell them that a decision that should be theirs, and their
families, along with their physician and their own religion, is no
longer a private issue for them.
From women who serve us, we take away a right that has been
established in this country for many years, and we tell them, if you
serve in the military, that right is taken away from you. We are asking
them to fight for our rights, but we are essentially taking away their
rights.
This restores that right to women who serve us overseas, to have an
abortion, if they so choose. This applies to military families--to
wives and daughters, as well.
I ask my colleagues to simply say to the women who serve us overseas
that we support you as much as we ask you to support us.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Arkansas.
Mr. HUTCHINSON. Mr. President, I hope everybody will read the Murray
amendment. In fact, there is nowhere in this amendment that it says a
woman who is seeking an abortion overseas has to pay for it. There is
nowhere that it says that. But the current policy in fact is that
servicewomen serving overseas do not forfeit their right to obtain an
abortion. They may request leave. They fly to the United States, or
another country, on a military aircraft, on a space-available basis.
The flights are for $10.
This amendment should be tabled for a number of reasons. It violates
the Hyde amendment. The Department of Defense has said you cannot
calculate reimbursement on a case-by-case basis, even if it did say a
woman was going to pay.
As Senator Murray said, you would have to contract with physicians.
That puts us in the position of violating the Hyde amendment by paying
these physicians to come into military hospitals to perform abortions.
It is going to create untold diplomatic dilemmas because, as Senator
Murray said, her amendment will require abortions to be performed in
countries that prohibit abortions, such as Saudi Arabia and South
Korea. It is going to be a thumb in the eye of our allies. It is going
to create untold diplomatic problems.
Finally, it turns military hospitals into abortion providers. That is
not what we want. That is not what the American people want. It is
going to make millions and millions of Americans, pro-life Americans,
who have deeply held beliefs about this issue, subsidizers of a
practice they find offensive and morally wrong.
I ask my colleagues to join me in tabling the Murray amendment. I
move to table the amendment, Mr. President, and I ask for the yeas and
nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is on agreeing to table Murray amendment No. 3252. The
clerk will call the roll.
The legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from Oklahoma (Mr. Inhofe)
is necessarily absent.
The result was announced--yeas 50, nays 49, as follows:

[Rollcall Vote No. 134 Leg.]

YEAS--50

Abraham
Allard
Ashcroft
Bennett
Bond
Breaux
Brownback
Bunning
Burns
Campbell
Cochran
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Fitzgerald
Frist
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Reid
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner

NAYS--49

Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Bryan
Byrd
Chafee
Cleland
Collins
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Gorton
Graham
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Moynihan
Murray
Reed
Robb
Rockefeller
Sarbanes
Schumer
Snowe
Specter
Torricelli
Wellstone
Wyden

NOT VOTING--1

Inhofe

The motion was agreed to.
Mr. HUTCHINSON. I move to reconsider the vote.
Mr. BROWNBACK. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 3474

The PRESIDING OFFICER. Under the previous order, there are 4 minutes
of debate equally divided before a vote on an amendment by the Senator
from Utah, Mr. Hatch.
The Senator from Utah.
Mr. HATCH. Mr. President, what happened to James Byrd and Matthew
Shepard should not happen in a great nation such as ours. Hate crimes
are abysmal. They are horrible. We should all be against them.
My amendment does two things. First, it requires that a comprehensive
analysis be conducted to determine whether or not State and local
jurisdictions are failing or refusing to prosecute hate-motivated
crimes to the fullest extent of the law. Second, it provides monetary
assistance to State and local jurisdictions who lack the resources to
combat hate crimes.
My amendment is strongly supported by the National District Attorneys
Association, the major organization that represents State and local
prosecutors throughout the country. The National District Attorneys
Association endorsed my amendment because State and local prosecutors
believe that the assistance offered in my amendment would be helpful to
them as they seek to fight hate-motivated crime.
In a letter, the National District Attorneys Association also states
that it strongly endorses my amendment because my amendment
``appropriately recognizes that local law enforcement has the primary
responsibility to safeguard their citizens while working as a team with
the Federal Government.''
I ask unanimous consent to have that letter printed in the Record.

[[Page S5426]]

There being no objection, the letter was ordered to be printed in the
Record, as follows:

National District Attorneys

Association,

Alexandria, VA, June 20, 2000.
Hon. Orrin G. Hatch,
Chairman, Senate Committee on the Judiciary, Washington, DC.
Dear Chairman Hatch: As President of the National District
Attorneys Association I want to offer our strong support for
your Hate Crimes amendment to the Department of Defense
Authorization bill.
I am aware that several hate crimes proposals are under
consideration by the Senate and want to take this opportunity
to particularly emphasize the necessity for your concept to
be adopted. What you would provide to local law enforcement
is the ability to respond more effectively, and more
efficiently, in the face of a crime, that in addition to the
physical wounds and injuries of the victims', could very well
pose a serious threat to the tranquility and safety of our
community as well.
As you well know the majority of hate crime cases, despite
any federal interest or efforts, have been, and will remain,
the providence of local law enforcement efforts. The
emergency grants provisions and access to federal technical
assistance that you are proposing would provide invaluable
assistance to us. When faced with tragedies such as those in
Texas or Wyoming the ability to call upon extra resources
could make all the difference, particularly in our smaller
jurisdictions.
Moreover, your recognition of the necessity to provide this
help under sometimes more expansive state hate crimes
statutes, appropriately recognizes that local law enforcement
has the primary responsibility to safeguard their citizens
while working as a team with the federal government.
Sincerely,
Stuart VanMeveren,

District Attorney, 8th Judicial District, Fort Collins, Colorado,
President.

Mr. HATCH. Supporters of the Kennedy amendment want to enact a broad
federalization of all hate-motivated crimes because, they argue, some
State and local authorities are unable to investigate and prosecute
hate crimes because of the lack of resources.
My amendment will solve this problem by establishing a grant program
to provide financial assistance to State and local jurisdictions for
the investigation and prosecution of hate crimes.
Supporters of the Kennedy amendment also argue that we should make a
Federal case out of every hate-motivated crime because some States and
locales are unwilling to engage in the fight against hate crimes. There
is little or no evidence, however, that shows that States and
localities are being derelict in their duties to enforce the law.
Supporters of the Kennedy amendment cite the horrible beating death
of Matthew Shepard in Laramie, WY, and the dragging death of James
Byrd, Jr. in Jasper, TX, as evidence that there is a problem that
Congress should address. The Shepard and Byrd cases, however, both were
fully prosecuted by local authorities who sought and obtained
convictions. In the Byrd case, local prosecutors obtained the death
penalty--something that would not be permitted under the Kennedy
amendment.
Moreover, the Justice Department has identified only eight cases in
which, in the Justice Department's view, States or localities were
unwilling to investigate and prosecute a hate-motivated crime. Of the
thousands and thousands of criminal cases that are brought each year,
the Justice Department could identify only eight cases. These eight
cases, I might add, are at the very least equivocal on the issue of
whether States and localities are failing or refusing to prosecute hate
crimes.
Because the evidence is so scarce on the issue of whether States and
localities are unwilling to combat hate crimes, my amendment provides
for a comprehensive study to see if there really is a problem with
State and local prosecution of hate crimes. Studying this issue to see
if there really is a problem seems to me to be a reasonable course of
action.
Even if it could be clearly shown that States and localities were
failing or refusing to investigate and prosecute hate crimes, the
approach taken by the Kennedy amendment raises serious constitutional
questions, especially in light of the Supreme Court's recent decision
last month in United States v. Morrison. As written, the Kennedy
amendment likely would be held to be unconstitutional under the
commerce clause, the 13th amendment, the 14th amendment, and quite
possibly, the 1st amendment.
In conclusion, it is my hope that those of my colleagues who intend
to vote for the Kennedy amendment also will support my amendment. While
I disagree with the approach taken by Senator Kennedy, our two
amendments are not inconsistent. My amendment provides for an effective
and workable assistance program for State and local law enforcement, a
program that enjoys the strong support of the National District
Attorneys Association. And, it requires a comprehensive study so that
we can really learn what, if any, problems and difficulties exist at
the State and local level.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. I yield 1 minute to the Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I support the amendment which will give
jurisdiction to the Federal Government over hate crimes. Ordinarily, I
support jurisdiction for the district attorney. Senator Hatch points
out the National District Attorneys Association has taken on a
position. I was a long-term member of that association as district
attorney of Philadelphia. The fact is, prosecutors are county officials
of the State system. There are great pressures against prosecutions
where there is a matter of sexual orientation, or where there may be a
matter of race, or where there may be a matter of religion or other
hate-related crimes.
That is why I believe this is a unique field where the Federal
Government ought to be involved. Ordinarily, it should be up to the
local prosecutor. That is a principle to which I subscribe. But here it
ought to be a matter for the Federal Government.
The PRESIDING OFFICER. The Senator from Indiana.
Mr. BAYH. Mr. President, I rise in opposition to the Hatch amendment
and in support of the approach taken by Senator Kennedy. I do so
because I believe that an 18-month study is no adequate substitute for
the prompt, vigorous, assurance of civil rights for every American.
The crimes described in Senator Kennedy's approach are not ordinary
offenses. They strike at the heart of a pluralistic society. They
strike at all of us, not just the individual victims. We need to look
no further, colleagues, than to the Balkans to see what happens when
the genie of intolerance and hate is unleashed upon an unhappy land.
We must not let that happen. We must not. We fought a civil war in
our country to establish the basic principle that certain rights should
be guaranteed to every American, regardless of their State of
residency. We fight to reestablish that principle once again today.
Mr. President, if a study is in order, let it be in addition to
establishing these basic rights, not as a replacement therefore.
Now is the time for action. I urge my colleagues to oppose the Hatch
amendment and to support Senator Kennedy in his approach.
Mr. BYRD. Mr. President, I oppose the amendment offered by Senator
Kennedy to expand the definitions of federally protected hate crimes.
I am concerned that this amendment would be challenged on
Constitutional grounds and would not stand up to the scrutiny. I
believe that categorizing hate crimes based on race, religion, or
ethnicity as ``badges and incidents'' of slavery and relying on the
Thirteenth Amendment is a tenuous argument. Furthermore, recent Supreme
Court decisions finding that legislation federalizing what are
traditionally State crimes exceeded Congress' powers under the
Fourteenth Amendment, raise Constitutional concerns about the Kennedy
amendment. The Kennedy amendment seeks to criminalize private conduct
under the Fourteenth Amendment. In United States v. Morrison, the
United States Supreme Court reaffirmed that legislation enacted by
Congress under the Fourteenth Amendment may only criminalize State
action, not individual action. I fear the Kennedy amendment will not
survive a court challenge.
I further oppose the Kennedy amendment because I feel it did not go
far enough in providing penalties for hate crimes. It did not include
the death penalty for the newly created federal hate crimes.

[[Page S5427]]

I support Senator Hatch's amendment that will allow for study and
analysis of this important issue and provide additional resources for
state and local entities in investigating and prosecuting existing hate
crime statutes.
Mr. WARNER. Mr. President, I rise today to discuss two amendments to
S. 2549, the Department of Defense Authorization bill. Specifically, I
wish to discuss Senator Kennedy's amendment and Senator Hatch's
amendment, both of which deal with hate crimes.
Typically defined, a hate crime is a crime in which the perpetrator
intentionally selects a victim because of the victim's actual or
perceived race, color, religion, national origin, ethnicity, gender,
disability, or sexual orientation.
Mr. President, I deplore all acts of violence. But, I must say, that
I personally find hate crimes to be particularly horrific. Crimes
committed against someone simply because of that person's race, color,
religion, national origin, ethnicity, gender, disability, or sexual
orientation are, in fact, different types of crimes.
In 1998, James Byrd, Jr. was beaten, tied to the back of a pickup
truck, and dragged to death along a Texas road. Why? for one reason and
one reason only: Mr. Byrd was black.
Later in 1998, Matthew Shepard was beaten, tied to a fence in
Wyoming, and left to die. Why? For one reason and on reason only: Mr.
Shepard was homosexual.
These brutal murders shocked me and shocked our Nation. James Byrd
and Matthew Shepard were killed not for what they did, but simply
because who they were.
Our country's greatest strength is its diversity. While it is true
that certain people might not approve or might not agree with another
person's religion or sexual orientation, or might not like someone's
color, we must not, I repeat, we must not tolerate acts of violence
that spur from one individual's intolerance of a particular group.
Hate crimes do tear at the fiber of who we are in this country. The
United States is a country of inclusion, not exclusion. Hate crimes,
unlike other acts of violence, are meant to not just torture and punish
the victim, such crimes are meant to send a resounding message to the
community that differences are not acceptable.
In 1990, I was pleased to vote in support of the Hate Crimes
Statistic Act. This act required the Attorney General of the United
States to gather and publish data about crimes ``that manifest evidence
of prejudice based on race, religion, sexual orientation, or
ethnicity.'' In addition, in 1994, I was pleased to support the
Violence Against Women's Act. This important legislation provides
funding for many important programs, including funding to prosecute
offenders, funding to help victims of violence, grants for training of
victim advocates and counselors and grants for battered women's
shelters, to name but a few.
Presently before the United States Senate is an amendment offered by
Senator Kennedy, entitled the Local Law Enforcement Enhancement Act of
2000. This legislation, essentially, would amend current law to make it
a federal crime to willfully cause bodily injury to any person because
of the victim's actual or perceived race, color, national origin,
religion, gender, sexual orientation or disability. This is a great
expansion of federal jurisdiction. Current federal hate crimes law
covers race, religion, and national origin so long as the victim is
engaged in one of six federally protected activities. The Kennedy
amendment would expand federal jurisdiction into certain murder,
assault and battery cases and possibly all rape cases.
As a United States Senator, I believe that before the Congress passes
legislation that would vastly expand federal criminal jurisdiction, we
must take into consideration two important factors: the need for the
legislation and the constitutionality of the legislation.
The horrific murders of James Byrd and Matthew Shepard certainly
cause strong emotional feelings that would lead me to believe that the
expansion of federal hate crimes law is necessary. However, once the
emotional feelings somewhat subside, we are left with the facts. In
this case, the facts are not yet present to indicate a need for federal
legislation.
All states have laws that prohibit murder, battery, assault, and
other willful injuries. Most states, 43 I believe, have hate crimes
statutes, although these states differ in what groups are covered.
Since 1990, with the passage of the Hate Crimes Statistics Act, we have
learned about the number of hate crimes that are occurring. These
statistics, however, do not show whether states are, in fact, not
prosecuting crimes under their hate crimes statutes or are not
prosecuting crimes being committed against certain groups of people. If
states are prosecuting such crimes, a vast expansion of federal
jurisdiction is unnecessary.
Moreover, it is also interesting to point out that in some
circumstances the Kennedy amendment, if it became law, would in fact
result in a weaker punishment for a hate crimes perpetrator than state
law. For example, the Kennedy amendment states that where the crime is
murder, the convicted defendant shall be imprisoned for any term of
years or for life. It does not authorize the death penalty for the most
heinous crimes. Two of the three murderers of James Byrd were
prosecuted, convicted and sentenced to death in Texas. The third was
sentenced to life in prison.
In addition to analyzing the need for the expansion of federal
criminal jurisdiction, I believe that members of Congress have a duty
to evaluate the constitutionality of particular legislation before
passing such legislation. I have some grave concerns about the
constitutionality of the Kennedy amendment.
Congress must have constitutional authority to enact legislation.
Article I, section 8 of the Constitution provides a laundry list of
Congress' power to enact legislation. One such power in that list is
the power to regulate interstate commerce.
From the New Deal era to the mid 1990s, the United States Supreme
Court broadly interpreted Congress' authority for enacting legislation
pursuant to the commerce clause. In fact, for approximately 60 years
following the passage of New Deal legislation, the Supreme Court did
not overturn one piece of congressionally passed legislation on the
grounds that Congress exceeded its authority to enact legislation under
the commerce clause.
In the past few years, however, the Supreme Court, in the cases of
United States v. Lopez and United States v. Morrison, issued opinions
that places some serious boundaries on Congress' authority to enact
legislation under the commerce clause. Just this year, in the Morrison
case, the Supreme Court struck down a provision of the Violence Against
Women's Act--a bill that I supported in 1994.
The plaintiff in the Morrison case was allegedly raped by three
students at a major university in my home state. She brought a civil
suit in federal court under a provision in the Violence Against Women's
Act that provides federal civil remedies for victims of gender
motivated violence. The Supreme Court stated that this provision of
VAWA was unconstitutional, holding that the Congress exceeded its
authority under the commerce clause in enacting this legislation.

Now, I am not going to get intimately involved in a legal analysis of
the Morrison case and its application to the Kennedy amendment. It is
important, however, to point out one particular quotation in the
majority opinion. Writing for the majority, Chief Justice Rehnquist
stated ``if Congress may regulate gender-motivated violence, it would
be able to regulate murder or any other type of violence since gender-
motivated violence, as a subset of all violent crime, is certain to
have lesser economic impacts than the larger class of which it is a
part.'' 20000 U.S. Lexis 3422, *31 (2000). Based on the Morrison case,
I have serious concerns about the constitutionality of Senator
Kennedy's amendment.
I believe that a federal role in combating hate crimes is
appropriate. I support Senator Hatch's amendment to study the success
of States in investigating and prosecuting hate crimes. I also support
provisions in Senator Hatch's amendment that will provide assistance
and federal grants to States and localities to help assist them in
their investigation and prosecution of hate crimes.
Let me be clear, if a federal study indicates that states and
localities have

[[Page S5428]]

not been successful in investigating and prosecuting hate crimes, I
will be the first person to join Senator Kennedy in trying to find a
constitutional federal hate crimes solution. At this time, however, I
must reluctantly vote against Senator Kennedy's amendment in light of
my concerns about the necessity and constitutionality of this
legislation.
Mr. DeWINE. Mr. President, I began my public career prosecuting
individuals who committed violent crimes against our fellow citizens.
And, that's why I believe that people who commit violent crimes should
be punished.
The debate about hate crimes legislation is about fighting crime. It
is about fighting violence. It is about taking a stand against crime
and violence.
The amendments that we're debating here today would permit states to
take full advantage of the investigative resources of the federal
government in prosecuting these cases. And, should a state be unwilling
or unable to prosecute a case itself, the federal government is there
to make sure that these kinds of violent criminals are brought to the
bar of justice.
A country that so righteously protects free speech, even when such
speech is abhorrent, must vigorously act as a nation, so that when
vicious speech is turned into despicable acts--acts that lead to
violence and to death--such acts do not go unpunished.
Mr. HATCH. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is on agreeing to the amendment No. 3474. The clerk will
call the roll.
The assistant legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from Oklahoma (Mr. Inhofe)
is necessarily absent.
The result was announced--yeas 50, nays 49, as follows:

[Rollcall Vote No. 135 Leg.]

YEAS--50

Abraham
Allard
Ashcroft
Bennett
Bond
Brownback
Bunning
Burns
Byrd
Campbell
Cochran
Collins
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Kyl
Lott
Lugar
Mack
McCain
McConnell
Moynihan
Murkowski
Nickles
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Stevens
Thomas
Thompson
Thurmond
Warner

NAYS--49

Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Bryan
Chafee, L.
Cleland
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Fitzgerald
Graham
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Murray
Reed
Reid
Robb
Rockefeller
Sarbanes
Schumer
Snowe
Specter
Torricelli
Voinovich
Wellstone
Wyden

NOT VOTING--1

Inhofe

The amendment (No. 3474) was agreed to.
Mr. BYRD. Mr. President, I hope the Chair is watching for Senators
who are trying to get order. I have asked for order here six or eight
times, and it has not been noticed. I hope they will be more alert.
Second, I hope the Chair will clear the well.
The PRESIDING OFFICER. The Senate will be in order.
Mr. BYRD. I urge there be order in the Senate.
The PRESIDING OFFICER. We will suspend until the well is cleared. The
well has not been cleared.
Mr. BYRD. Mr. President, Senators should show respect to the Chair.
When the Chair asks that the well be cleared, Senators should listen
and clear the well.
Mr. NICKLES. Mr. President, I move to reconsider the vote.
Mr. LOTT. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 3473

The PRESIDING OFFICER. There are now 4 minutes equally divided on the
Kennedy amendment. The Senator from Massachusetts is recognized.
Mr. KENNEDY. Mr. President, I believe we have 2 minutes.
The PRESIDING OFFICER. The Senator is correct.
Mr. KENNEDY. I yield 1 minute to the Senator from Oregon and 1 minute
to the Senator from California.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. SMITH of Oregon. I thank the Chair.
Mr. President, I say to my colleagues, we have a chance to make a
difference today, to vote for an amendment that will actually help a
category of Americans who need our help. I believe we have a duty to
stand up against hate. I believe the law is a teacher. I believe we can
teach all Americans that we will protect all Americans.
I also believe those who feel reluctant to support this amendment for
religious reasons, remember the example of the Founder of the Christian
faith who when a woman caught in adultery was brought to Him spoke in a
way that the sanctimonious dropped their stones. He spoke in a way that
saved her life. He did not endorse her lifestyle, but He saved her
life.
I believe the Federal Government ought to show up to work when it
comes to hate crimes, even if it includes the language of ``sexual
orientation.'' It is about time we include them. Even if one does not
agree with all that they ask for, help them with this.
The PRESIDING OFFICER. The time of the Senator from Oregon has
expired. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I rise to say I believe the time has
come to adopt the Kennedy legislation. In effect, the study has been
done. We know that since the early 1990s, there have been 60,000 hate
crimes in this country. We know that young men such as Matthew Shepard,
just because they are gay, can be beaten until they are killed. We know
that a U.S. postal worker can be shot and killed simply because he
happens to be a Filipino American. We see people targeted for specific
crimes.
I authored the original hate crimes legislation in 1993. It had two
loopholes: It excluded sex and sexual orientation. This legislation
corrects it, and it only applies in pursuance of a Federal right. This
legislation extends that. I urge its adoption. I thank the Chair.
Mr. LAUTENBERG. Mr. President, I rise today to express my strong
support for the Kennedy/Smith Hate Crimes Prevention Amendment.
Recent events in the news have unfortunately offered a number of
disturbing examples of why this legislation is so badly needed.
All of my colleagues remember that terrible day in August of last
year, when a hate-filled gunman, Buford Furrow, opened fire with a
semiautomatic rifle at a Jewish Community Center near Los Angeles. We
all remember that line of frightened children, holding hands as
policemen led them to safety. Furrow's rampage wounded three children,
a teenager and a 68-year-old receptionist.
And he later used a handgun to kill a Filipino postal worker. There
is every indication that Mr. Furrow, a white supremacist, was motivated
by racial hatred.
Then there was the brutal attack in August 1998 on Matthew Shepard, a
gay student at the University of Wyoming. Matthew was savagely beaten
to death by two homophobic thugs who tied him to a fence and tortured
him.
That assault came just a few months after the horrific attack on
James Byrd Jr., who was chained to a pickup truck, dragged along a
Texas road and killed by avowed racists motivated by prejudice.
Earlier this year, I had the privilege of meeting Matthew Shepard's
parents, and the family of James Byrd Jr. at a ceremony honoring
victims of crime. They are truly remarkable people, because they've
turned their loss into a source of strength for others. They have
devoted themselves to helping others--victims of crime everywhere--even
while coping with their own personal tragedies.
That's an example that this Congress should follow. Crimes that
target race, or sexual orientation, or gender, or religion are the
ugliest expressions of ignorance and hate. We need stronger

[[Page S5429]]

federal laws to deal with these crimes and the people who commit them.
Mr. President, current federal law is just too restrictive to allow
federal prosecutors to try hate-crimes cases effectively. In 1994, a
jury acquitted three white supremacists who had assaulted African-
Americans. After the trial, jurors said it was clear the defendants had
acted out of racial hatred.
But prosecutors had to prove more than that. They had to prove that
the defendants intended to prevent the African-American victims from
participating in a federally protected activity--a major roadblock for
the prosecution's case.
The Kennedy/Smith amendment would remove that element from federal
hate-crimes law. It would also allow federal prosecutors to prosecute
violent crimes based on a victim's sexual orientation, gender or
disability.
Mr. President, as all of us here know, no area of the country is free
from hate crimes. In my home state of New Jersey, there were at least
four incidents of hate-related violence between January 12 last year
and January 15 this year. One of the victims was a 16-year-old gay high
school student who was badly beaten.
The Kennedy/Smith amendment would bring the full force of this
country's legal system to bear on incidents like this. I hope my
colleagues will join me in supporting this legislation to protect
American citizens from crime motivated by bigotry and intolerance.
Mr. KERRY. Mr. President, in October 1998, I stood on the steps of
the U.S. Capitol Building at a candlelight vigil for Matthew Shepard,
the young gay man who was beaten and left for dead on a lonely Wyoming
roadway. Two thugs were arrested, charged and convicted of murdering
Matthew Shepard because of his sexual orientation. Tens of thousands of
people--gay and straight, black and white, young and old, Americans
all--came to the Capitol with only a few hours notice to encourage the
passage of a Federal hate crimes law.
The evening was memorable. We expressed our passionate conviction and
knowledge that there is no room in our country for the kind of vicious,
terrible, pathetic, ignorant hatred that took the life of Matthew
Shepard, or of James Byrd, or of Barry Winchell, or of Brandon Teena.
And the Congress responded. We came close to extending the federal hate
crimes law that year, but the provision was dropped in conference.
So, we came back again to guarantee that crimes will not be tolerated
when they are motivated by other people's limitations. We are here to
reaffirm that hate crimes are indeed an insult to our civilization. We
are here for once and for all to make certain that there will be no
period of indifference, as there was initially when the country ignored
the burning of black churches or overlooked the spray-painted swastikas
in synagogues; or suggested that the undiluted lethal hatred is someone
else's problem, some other community's responsibility.
We must accept the national responsibility for fighting hate crimes
and commit--each of us in our words, in our hearts and in our actions--
to insure that the lesson of Matthew Shepard and scores of others is
not forgotten. Mr. President, I understand that we cannot legislate
racism and hatred out of existence, but we can empower our local law
enforcement officials to prosecute hate crimes. And we can empower our
local communities to be free of violence and fear brought about by hate
crimes.
Look to the 58 high schools in my own beautiful, progressive state of
Massachusetts where 22 percent of gay students say they skip school
because they feel unsafe there and fully 31 percent of gay students had
been threatened or actually physically attacked for being gay. Matthew
Shepard is not the exception to the rule--his tragic death is rather
the extreme example of what happens on a daily basis in our schools, on
our streets and in our communities. That is why we have an obligation
to pass laws that make clear our determination to root out this hatred.
And today we will have carried the day in passing the Kennedy-Smith
amendment.
It is my belief that Americans always act when confronted by an
inherently unethical wrong. They stare down those who want us to live
in fear and declare boldly that we will not live in a country where
private prejudice undermines public law.
American heroes such as Martin Luther King did this when he preached
in Birmingham and Memphis, when he thundered his protest and assuaged
those who feared his dreams. He taught us to look hatred in the face
and overcome it. Harvey Milk did this in San Francisco, when he brushed
aside hatred, suspicion, fear and death threats to serve his city. Even
as he foretold his own assassination, Harvey Milk prayed that ``if a
bullet should enter my brain, let that bullet destroy every closet
door.'' He knew that true citizenship belongs only to an enlightened
people, unwavered by passion or prejudice--and it exists in a country
which recognizes no one particular aspect of humanity before another.
Mr. President, we must root out hatred wherever we find it, whether
on Laramie Road in Wyoming, or on a back road in Jasper, Texas, or in
the Shenandoah National Park. That kind of hatred is the real enemy of
our civilization. The day is here, Mr. President, when we can rightly
celebrate our passage of this amendment to the hate crime prevention
act to treat all Americans equally and with dignity, to allow all
Americans to enjoy the inalienable rights framed in the Declaration of
Independence--the rights of life, liberty and the pursuit of happiness.
This indeed will be a happy day.
Mr. KERRY. Mr. President, today's vote on hate crimes legislation
marks a monumental day in our history. The U.S. Senate definitively
voted in support of expanded hate crimes legislation because standing
law has proven inadequate in the protection of many victimized groups.
The 30-year-old Federal statute currently used to prosecute hate
violence does not cover hate violence based on sexual orientation,
gender or disability and requires that the victim be participating in a
federally protected activity. The Kennedy-Smith amendment addresses and
corrects these gaps in the law. Not only is this bill the right thing
to do, but Americans overwhelmingly support it. Law enforcement groups,
as well as 80 civil rights and religious organizations support this
bill, in addition to a 1998 poll showing that this Hate Crimes
Prevention Act is favored 2 to 1 by a majority of voters. This bill
protects all Americans and ensures equal justice for all victims of
hate violence, regardless of their race, religion, sexual orientation,
national origin, gender, or disability--and regardless of where they
live.
Mr. DODD. Mr. President, I was back in Connecticut yesterday and was
unable to participate in the debate on the Kennedy-Smith amendment
pertaining to hate crimes prevention. I want to take this opportunity
to share my views on this most crucial issue.
The Federal Bureau of Investigation recently released its latest
statistics documenting hate crimes in our country. This report
establishes that over 7,500 hate crimes occurred during 1998. The FBI
found that 4,321 crimes were motivated by racial bias, 1,390 because of
religion, 1,260 because of sexual orientation, and 754 by ethnicity or
national origin. But hate crime statistics do not tell the whole story.
Behind each and every one of these numbers is a person, a family and a
community targeted and forever changed by these willful acts of
violence.
We as a nation know of some of these hate crimes. We know of the
brutal dragging death in 1998 of James Byrd Jr., in Jasper, Texas. We
know about the senseless beating of Matthew Shepard in Laramie, Wyoming
in 1998. And we cannot forget the vicious acts of an armed assailant
who fatally shot five people in a Jewish Community Center in Los
Angeles earlier this year.
Joseph Healy, a 71-year-old Roman Catholic priest who was in
Pittsburgh counseling victims of crime was gunned down in March at a
fast food restaurant. Father Healy was a native of Bridgeport,
Connecticut. He was killed in a racially motivated shooting. Father
Healy and four other white men were shot; three of the five men died.
Court documents revealed that the gunman shot the victims with
``malicious intent towards white males.''
Then there's the case of Heather Washington, a young, well respected
African-American kindergarten teacher from Hartford, who along with her

[[Page S5430]]

boyfriend was chased at high speeds on a Connecticut highway last
month. The couple was pursued by a white male who yelled epithets such
as ``white power,'' shot at the vehicle's tires, and rear-ended the
couple's car with his own vehicle. The couple was able to escape the
assailant. However, they were not able to escape the constant fear that
a similar incident could happen at any time.
These are examples of the bias crimes that are committed every day in
America. Every day people across the nation continue to be victims of
crimes motivated by bigotry. We owe it to these victims to ensure that
the perpetrators of these crimes are brought to justice.
We should not wait until these brutal and shocking crimes make
national headlines. Congress has the ability, the opportunity, and the
duty to do something about this epidemic now. This problem cannot and
should not be ignored.
In response to these disturbing acts, I am pleased to be an original
cosponsor of S. 622, the Federal Hate Crimes Prevention Act of 1999,
introduced by my longtime friend and colleague Senator Kennedy.
I believe that all people, regardless of background or belief,
deserve to be protected from discrimination. We must unite now to send
an unequivocal message that hate will not be tolerated in our
communities. Hate crimes deserve separate and strong penalties because
they injure all of us. The perpetrator of a hate crime may wield a bat
against a single person, but that perpetrator strikes at the morals
that hold our society together. Hate destroys what's good, what's great
about America. It is just and fitting for Congress to impose sanctions
against criminals who are motivated by blind bigotry. These incidences
tear the very fabric of our society and they cannot be tolerated. I
admit that laws have little power to change the hearts and minds of
people, but Congress can ensure that those who harbor hateful thoughts
are punished when they act on those thoughts. I urge my colleagues to
vote in favor of the Kennedy-Smith amendment.
Mr. LEAHY. Mr. President, violent crime motivated by prejudice is a
tragedy that demands attention from all of us. It is not a new problem,
but recent incidents of violent crimes motivated by hate and bigotry
have shocked the American conscience and made it painfully clear that
we as a nation still have serious work to do in protecting all
Americans from these crimes and in ensuring equal rights for all our
citizens. The answer to hate and bigotry must ultimately be found in
increased respect and tolerance. But strengthening our federal hate
crimes legislation is a step in the right direction.
Bigotry and hatred are corrosive elements in any society, but
especially in a country as diverse and open as ours. We need to make
clear that a bigoted attack on one or some of us diminishes each of us,
and it diminishes our nation. As a nation, we must say loudly and
clearly that we will defend ourselves against such violence. All
Americans have the right to live, travel and gather where they choose.
In the past we have responded as a nation to deter and to punish
violent denials of civil rights. We have enacted federal laws to
protect the civil rights of all of our citizens for more than 100
years. The Local Law Enforcement Enhancement Act of 2000 continues that
great and honorable tradition.
This legislation strengthens current law by making it easier for
federal authorities to investigate and prosecute crimes based on race,
color, religion, and national origin. It also focuses the attention and
resources of the federal government on the problem of hate crimes
committed against people because of their sexual orientation, gender,
or disability. This bill will strengthen Federal jurisdiction over hate
crimes as a backup, but not a substitute, for state and local law
enforcement. In a sign that this legislation respects the proper
balance between Federal and local authority, the bill has received
strong bipartisan support from state and local law enforcement
organizations across the country. This support from law enforcement is
particularly significant to me as a former prosecutor. Indeed, it has
convinced me that we should pass this powerful law enforcement tool
without further delay.
This bill accomplishes a critically important goal--protecting all of
our citizens--without compromising our constitutional responsibilities.
It is a tool for combating acts of violence and threats of violence
motivated by hatred and bigotry. But it does not target pure speech,
however offensive or disagreeable. The Constitution does not permit us
in Congress to prohibit the expression of an idea simply because we
disagree with it. As Justice Holmes wrote, the Constitution protects
not just freedom for the thought and expression we agree with, but
freedom for the thought that we hate. I am devoted to that principle,
and I am confident that this bill does not contradict it.
I commend Senator Kennedy and Senator Smith for their leadership on
this bill, and I am proud to have been an original cosponsor. Senator
Kennedy has been a leader on civil rights for the better part of four
decades and has worked hard to tailor this needed remedy to the
narrowing restrictions of the current activist Supreme Court. Senator
Smith is someone I am getting to know better through our work on the
Innocence Protection Act. He is becoming a worthy successor in the
great tradition of Senators of conscience like Senator Mark Hatfield.
Now is the time to pass this important legislation. I had hoped that
this legislation would become law last year, when it passed the Senate
as part of the Commerce-Justice-State appropriations bill. But despite
the best efforts of the President, and us all, the majority declined to
allow it to become law.

Since that failure, the need for this bill has become even more
clear. Just two months ago, a white man named Richard Scott Baumhammers
apparently went on a racially and ethnically motivated rampage that
left his suburban Pittsburgh community in shock. First, he allegedly
shot his next-door neighbor, a Jewish woman, six times and then set her
house on fire. He then traveled throughout the Pittsburgh suburbs,
shooting and killing two Asian-Americans in a Chinese restaurant, an
African-American at a karate school, and an Indian man at an Indian-
owned grocery. He also shot at two synagogues during his awful journey.
This incident followed only a month after Ronald Taylor, an African-
American man in the Pittsburgh area, apparently shot and killed three
white people during a shooting spree in which he appears to have
targeted whites. Policy investigators who searched Taylor's apartment
after the shooting found writings showing anti-Semitic and anti-white
bias.
These ugly incidents join the numerous other recent examples of
violent crimes motivated by hate and bigotry that have motivated us to
strengthen our hate crimes laws. None of us can forget the story of
James Byrd, Jr., who was so brutally murdered in Texas for no reason
other than his race. Nor can we erase last summer's images of small
children at a Jewish community center in Los Angeles fleeing a gunman
who sprayed the building with 70 bullets from a submachine gun. When he
surrendered, the gunman said that his rampage had been motivated by his
hatred of Jews.
And of course, we are still deeply affected and saddened by the
terrible fate of Matthew Shepard, killed two years ago in Wyoming as a
result of his sexual orientation. Last year, Judy Shepard, Matthew
Shepard's mother, called upon Congress to pass this legislation without
delay. Let me close by quoting her eloquent words:

Today, we have it within our power to send a very different
message than the one received by the people who killed my
son. It is time to stop living in denial and to address a
real problem that is destroying families like mine, James
Byrd, Jr.'s . . . and many others across America. . . . We
need to decide what kind of nation we want to be. One that
treats all people with dignity and respect, or one that
allows some people and their family members to be
marginalized.

Mr. HARKIN. Mr. President, I want to express my strong support for
this amendment. I am a cosponsor because I believe that our society
must enforce a message of tolerance--not hate. State and local law
enforcement should not have to shoulder the burden of investigating and
prosecuting hate crimes alone. This amendment allows the Federal
Government to stand behind them in their effort to put a stop to hate-
motivated violence.
This amendment would authorize the Department of Justice to assist
law enforcement officers across the country in addressing acts of hate
violence by

[[Page S5431]]

removing unnecessary obstacles to federal involvement and, where
appropriate, by providing authority for federal involvement in crimes
directed at individuals because of their race, color religion, national
origin, gender, sexual orientation or disability.
Because of my long involvement in the area of disability rights and
the fact that this year marks the Tenth Anniversary of the Americans
with Disabilities Act, I want to focus my remarks on hate crimes'
impact on Americans with disabilities. Prejudice against people with
disabilities takes many forms. Such bias often results in
discriminatory actions in employment, housing, and public
accommodations. Laws like the Fair Housing Amendments Act, the ADA, and
the Rehabilitation Act are designed to protect people with disabilities
from such prejudice
Sadly, disability bias can also manifest itself in the form of
violence. It is imperative that the Federal Government send a message
that these expressions of hatred are not acceptable in our society.
For example, a man with mental disabilities from New Jersey was
kidnaped by a group of nine men and women and was tortured for three
hours, then dumped somewhere with a pillowcase over his head. While
captive, he was taped to a chair, his head was shaved, his clothing was
cut to shreds, and he was punched, whipped with a string of beads,
beaten with a toilet brush, and, possibly, sexually assaulted.
Prosecutors believe the attack was motivated by disability bias.
In the state of Maine, a husband and wife were both living openly
with AIDS, struggling to raise their children. Their youngest daughter
was also infected with HIV. The family had broken their silence to
participate in HIV/AIDS education programs that would inform their
community about the tragic reality of HIV infection in their lives. As
a result of the publicity, the windows of their home were shot out and
the husband was forcibly removed from his car at a traffic light and
severely beaten.
Twenty-one states and the District of Columbia have included people
with disabilities as a protected class under their hate crimes
statutes. However, state protection is neither uniform nor
comprehensive. The Federal Government must send the message that hate
crimes committed on the basis of disability are as intolerable as those
committed because of a person's race, national origin, or religion.
And, federal resources and comprehensive coverage would give this
message meaning and substance. Thus, it is critical that people with
disabilities share in the protection of the federal hate crimes
statute.
This legislation will also provide local and state law enforcement
officials with the resources necessary to investigate and prosecute
hate crimes. In consultation with victim services organizations,
including nonprofit organizations that provide services to victims with
disabilities, local law enforcement officials can apply for grants when
they lack the necessary resources to investigate and prosecute hate
crimes. The amendment also includes grants for the training of law
enforcement officials in identifying and preventing hate crimes
committed by juveniles. Again, so often hate crimes on the basis of
disability go unrecognized. These grants will help police identify
crimes committed because of disability bias in the first place.
Mr. President, for this reason and others, this amendment is vitally
important. Millions of Americans would benefit from its passage. And
the public clearly recognizes this.
This amendment is a constructive and sensible response to a serious
problem that continues to plague our Nation--violence motivated by
prejudice. It deserves full support, and I am hopeful that the
President will have an opportunity to sign this legislation into law
this year.
Ms. SNOWE. Mr. President, I rise today to support Senator Kennedy's
amendment to the fiscal year 2001 Department of Defense Authorization
Act. This amendment, the Local Law Enforcement Enhancement Act, is a
new version of the Hate Crimes Prevention Act, of which I am a
cosponsor.
Mr. President, there is nothing so ugly as hate. It saddens me that
at the brink of a new century, when our country is in a time of almost
unprecedented prosperity--when more people than ever before are
educated, when major medical breakthroughs seem to occur almost on a
daily basis--that we are still faced with racism and prejudice in our
society.
Current law permits Federal prosecution of a hate crime only if the
crime was motivated by bias based on religion, national origin, or
color, and the assailant intended to prevent the victim from exercising
a ``federally protected right'' such as voting, jury duty, attending
school, or conducting interstate commerce. These tandem requirements
substantially limit the potential for federal prosecution of hate
crimes.
Most crimes against victims based on their gender, disability, or
sexual orientation are now only covered under State law, unless such
crimes are committed within a Federal jurisdiction such as an assault
on a Federal official, on an Indian reservation, or in a national park.
While more than 40 States have hate crimes statutes in effect, only 22
States have hate crimes legislation that addresses gender, and only 21
States have hate crimes legislation that address sexual orientation or
disability.
The amendment before us today would expand Federal jurisdiction and
increase the Federal role in the investigation and prosecution of hate
crimes.
Under this legislation, hate crimes that cause death or bodily injury
because of prejudice can be investigated and prosecuted by the Federal
Government, regardless of whether the victim was exercising a federally
protected right. The bill defines a hate crime as a violent act causing
death or bodily injury ``because of the actual or perceived race,
color, religion, national origin, ethnicity, gender, disability, or
sexual orientation of any person.''
I believe that one of our country's greatest strengths is Congress's
ability to balance strong State's rights against a Federal Government
that unites these separate States. I also believe that the Federal
Government has a duty to provide leadership on issues of great moral
imperative, especially in the area of civil rights.
Hate crimes go beyond the standard criminal motivation. We are all
familiar with the horrible stories of James Byrd, Jr., who was chained
to a truck and dragged to his death because of his race, of Matthew
Shepard, who was beaten and tied to a wooden fence and died in freezing
temperatures because of his sexual orientation, and of the attack last
August at a Jewish community center because of religion.
There is no doubt that crime is morally and legally wrong and there
is no one in this chamber who could possible argue otherwise. And I
understand the argument that opponents of the amendment have: How can
the law punish a crime for more than what it actually and literally is?
But hate crimes are not just about the crime itself, they are about
the motivation. And there is something especially pernicious about a
crime that occurs because of who somebody is. There is something all
the more horrific when a crime happens because of the victim's race, or
color, or religion. Hate crimes are meant to send a message to a group:
``you had better be careful because you are not accepted here.''
The Federal Bureau of Investigation reports that in 1998--the latest
data available--almost 8,000 crimes were motivated by hate or
prejudice. Over half of these crimes were motivated by racial bias;
nearly 20 percent of these crimes were because of religious bias; and
16 percent of these crimes were a result of sexual-orientation bias.
Twenty-five of these crimes happened simply because the victim was
disabled, and 754 because of the ethnicity or national origin of the
victim.
The amendment before us today is not about creating a special class
of crime. It is not about policing our ideas or beliefs; it is about
the criminal action that some people take on the basis of these
beliefs. We cannot make it a crime to hate someone. But we can make it
a crime to attack because a person specifically hates who the victim is
or what the victim represents.
One of my favorite sayings is ``As Maine goes . . . so goes the
Nation.'' This adage proves true again with the Hate Crimes Prevention
Act and with Senator Kennedy's amendment. I am proud that the Hate
Crimes Prevention

[[Page S5432]]

Act, and today's amendment, are largely based on Maine's 1992 Civil
Rights Law, which was enacted while my husband, John R. McKernan, was
Governor of the State. And I am proud that the Hate Crimes Prevention
Act is supported by our current Attorney General, Andrew Ketterer.
Mr. President, our laws are a direct reflection of our priorities as
a nation. And I, along with the vast majority of Americans I would
venture to say, fundamentally believe that crimes of hate and prejudice
should not be tolerated in our society.
That is why I support prosecuting hate crimes to the fullest possible
extent. The amendment before us today will expand the ability of the
Federal Government to prosecute these immoral and pernicious crimes. I
urge my colleagues to support it.
Mrs. FEINSTEIN. Mr. President, no one should be victimized because of
his or her skin color, national origin, religious beliefs, gender,
sexual orientation, or disability.
In furtherance of this belief, I sponsored in 1993 the Hate Crimes
Sentencing Enhancement Act, which required the U.S. Sentencing
Commission to provide sentencing enhancements of no less than three
offense levels for crimes determined beyond a reasonable doubt to be
hate crimes. The Act increased the penalties for hate crimes directed
at individuals not only because of their perceived race, color,
religion, and national origin, but also on account of their gender,
disability or sexual orientation.
Today, I am proud to be the cosponsor of the Kennedy hate crimes
amendment, which would build on this effort by expanding the Justice
Department's authority to prosecute defendants for violent crimes based
on the victim's race, color, religion or national origin.
This important amendment would also allow the Federal government to
provide assistance in state investigations of crimes against another
based on the victim's gender, disability, or sexual orientation.
Sadly, hate crimes occur more often than we might think. According to
the U.S. Department of Justice, there have been nearly 60,000 hate
crime incidents reported since 1991. In 1998 alone, the last year for
which we have statistics, nearly 8,000 hate crime incidents were
reported in the United States. That is almost one such crime per hour.
In the same year, more than 2,100 Californians fell victim to a hate
crime. That's a shocking number when one considers the motivation
behind a hate crime. These are truly among the ugliest of crimes, in
which the perpetrator thinks the victim is less of a human being
because of his or her gender, skin color, religion, sexual orientation
or disability.
Even more disturbing is that nearly two-thirds of these crimes are
committed by our nation's youth and young adults. The need to send a
strong message of mutual tolerance and respect to our youngsters has
become all too clear in recent years.
One of the most high profile hate crime cases in California involved
two young Northern California men, Benjamin Matthew Williams, age 31,
and his younger brother James Tyler Williams, age 29. The two brothers
became poster boys for our Nation's summer of hate last year. Both men
were charged with the double slaying of a prominent gay couple who
lived about 180 miles north of Sacramento.
The men are also prime suspects in the wave of arson that hit three
Sacramento-area synagogues two weeks before the killings, causing more
than $1 million in damage. When investigators searched the Williams
brothers' home, they found a treasure trove of white-supremacist, anti-
gay, anti-Semitic literature. They also found a ``hit list'' of 32
prominent Jewish and civic leaders in the Sacramento area, apparently
compiled after the synagogue fires.
Hate crimes not only affect the victim who is targeted, but also
shakes the foundation of an entire community that identifies with the
victim. I grow increasingly concerned when I hear reports about the
proliferation of hate in our nation, because California, the state I
represent, has one of the most diverse communities in the world.
Our state has greatly benefitted from the contributions of persons
from countries as nearby as Mexico and El Salvador, and as far away as
India and Ethiopia. It is only through our willingness to live among
each other and to respect our individual differences and gifts, that we
can continue to build from the strength of our diversity.
That is why Senator Kennedy's amendment is so important. Not only
would it broaden the protection offered by Federal law to people not
covered by hate crime legislation, but it will provide vital Federal
assistance and training grants to states investigating these crimes.
Specifically, this legislation would compensate for two limitations
in the current law: First, even in the most blatant cases of racial,
ethnic, or religious violence, no Federal jurisdiction exists unless
the victim was targeted while exercising one of a limited number of
federally protected activities. Second, current law provides no
coverage for violent hate crimes based on the victim's sexual
orientation, gender or disability.
Unfortunately, there are those who would stop short of supporting
this legislation because it extends protections to those targeted on
account of their sexual orientation. This is especially disturbing
given the fact that crimes against gays, lesbians and bisexuals ranked
third in reported hate crimes in 1998, registering 1,260 or 15.6
percent of all reported incidents. Even in light of the growing number
and severity of these horrific events, Congress has not seen fit to
enact important Federal hate crime measures to ensure that justice is
served.
I wonder, how many cases go unsolved because of the Federal
government's inability to participate in the investigation and
prosecution of a hate crime?
How many people have chosen not to report a serious hate crime out of
fear of retribution because there is no state or federal protection?
How many more people, and families, and communities, need to be
victimized by these most horrendous acts before our colleagues realize
that now is time to act?
Since those who commit hate crimes seek out a category of people,
rather than a particular individual, anyone of us at anytime can become
a victim of a hate crime. I believe the Kennedy hate crimes amendment
would send the right message: that those who commit violent acts
because the victim is of a certain gender, religion, race, sexual
orientation, or disability will be prosecuted because everyone--I
repeat--everyone has a right to be free from violence and fear when
they are going to school, work, travel, or doing something as simple as
going to a movie.
While I rise in strong support for the Kennedy amendment, I must also
express my opposition to the amendment offered by my friend from Utah,
Mr. Hatch. While well-intentioned, the Hatch amendment would not extend
protection to people targeted because of their sexual orientation,
gender or disability in states that have not enacted hate crime laws or
have limited their laws to crimes motivated by race, national origin or
religion.
Moreover, the Hatch amendment would permit the Federal government to
address hate crimes only in those very limited circumstances in which
the offender crosses a state line to commit an act of hate violence.
This amendment would, therefore, fail to address the majority of cases
we confront today in which a hate crime results in death or serious
bodily harm.
As elected leaders, it is incumbent upon us to set an example--not
just by expressing outrage about these crimes--but by strengthening
legislation and bolstering the ability of law enforcement--whether
state or Federal--to combat hate crimes.
How many more people will become victims of hate before we act? I
believe the time has come to affirm our support for the diversity that
makes our nation so great. The time has come to enact a sensible hate
crime measure to address this problem of violent bigotry and hate. The
time has come to enact the Local Law Enforcement Enhancement Act of
2000.
Mr. SARBANES. Mr. President, I rise today to express my strong
support for the Local Law Enforcement Enhancement Act of 2000, Senator
Kennedy's amendment to the Department of Defense authorization bill. As
a cosponsor of Senator Kennedy's Hate Crimes Prevention Act, I believe
that it is past time for Congress to act to prevent future tragedies.

[[Page S5433]]

While as a Nation we have made significant progress in reducing
discrimination and increasing opportunities for all Americans,
regrettably the impact of past discrimination continues to be felt. Far
too often, we hear reports of violent hate-related incidents in this
country. It seems inconceivable that, in the year 2000, such crimes can
still be so pervasive. Statistics from my own State of Maryland
unfortunately indicate that the incidence of bias-motivated violence
may be on the rise. The number of reported incidents of hate or bias-
motivated violence in Maryland rose by 11.6 percent in 1999. Of the 457
verified incidents of bias-motivated violence that year, 335 were
committed against individuals on the basis of their race (approximately
73%), 63 on the basis of religion (14%), 38 on the basis of sexual
orientation (8%), 17 on the basis of ethnicity (4%), and 4 on the basis
of the victim's disability (1%).
Data gathered under the Federal Hate Crime Statistics Act is also
sobering. Beginning in 1991, the Act requires the Justice Department to
collect information from law enforcement agencies across the country on
crimes motivated by a victim's race, religion, sexual orientation, or
ethnicity. Congress expanded the Act in 1994 to also require the
collection of data for crimes based upon the victim's disability. The
Department of Justice has reported that, for 1998, 7,755 bias-motivated
crimes were committed against 9,722 victims by 7,489 known offenders.
Beyond these stark statistics, stories of heinous crimes continue to
make headlines across the country. In 1998, James Byrd, Jr., an
African-American man, was walking home along a rural Texas road when he
was beaten and then dragged behind a pickup truck to his death. Later
than same year, Matthew Shephard, a gay University of Wyoming Student,
was beaten, tied to a fence, and left to die in a rural part of the
state. And just last year, a gunman entered a Jewish community center
in California, opened fire on workers and children attending a day care
center, and later killed a Filipino-American postal worker.
It is nearly impossible to imagine such crimes occurring in a country
that is said to lead the world in equal opportunity for its citizens.
Franklin Delano Roosevelt once described America as a ``nation of many
nationalities, many religions--bound together by a single unity, the
unity of freedom and equality.'' But, as the stories of James Byrd,
Matthew Shephard, and the California Jewish community center all too
clearly show, we are not living up to President Roosevelt's vision of
America. The Federal government cannot ignore the thousands of hate
crimes that are committed in the United States each and every year as
long as people are afraid to walk down our streets because of their
religion, or the color of their skin, or their sexual orientation.
I had the great honor of serving, during my time in the House of
Representatives, with Shirley Chisholm, the first African-American
woman elected to Congress, who said: ``Laws will not eliminate
prejudice from the hearts of human beings. But that is no reason to
allow prejudice to continue to be enshrined in our laws to perpetuate
injustice through inaction.''
Senator Kennedy's amendment includes crucial provisions designed to
help the Federal government stop bias-motivated crimes. This amendment
would extend Federal law to prohibit crimes committed against victims
because of their gender, sexual orientation, or disability. Moreover,
the amendment would also remove requirements of existing law that
prohibit Federal government action unless the crime victim is engaged
in certain ``federally protected activities.''
It is true that this legislation will not drastically increase the
number of crimes subject to Federal prosecution. Criminal law is a
matter largely enforced by the states, and the sponsors of this
amendment have been careful to ensure that the Federal government will
only step in and prosecute a crime if a state cannot adequately do so
itself. And certainly, as Congresswoman Chisholm eloquently stated, we
cannot erase the hatred and bigotry in people's hearts by passing this
amendment today. But the balanced approach of Senator Kennedy's
amendment will allow the Federal government to intervene in the small
number of hate crimes cases where a Federal prosecution is necessary to
insure that justice is served.
Mr. President, I urge my Senate colleagues to join me in supporting
the Kennedy hate crimes amendment. We have an invaluable opportunity to
make a statement that the United States government will not tolerate
crimes motivated by bigotry and prejudice, and that the ``the unity of
freedom and equality'' binds together all Americans--regardless of
their race, religion, nationality, gender, sexual orientation, or
disability.
Mrs. BOXER. Mr. President, one year ago, three synagogues in the
Sacramento, California area were attacked by arsonists. Two weeks
later, a gay couple was killed at their home in nearby Redding,
California. Two nights after these brutal murders, a Sacramento women's
health care clinic was firebombed.
These vicious crimes shocked the people of Sacramento. At the same
time, it moved many members of the community to speak out and take
action. Led by the late mayor Joe Serna, thousands of residents joined
a Unity Rally at the Sacramento Convention Center and pledged to work
together to prevent future hate crimes.
Out of this rally grew the ``United We Build'' project, which is
bearing fruit this week. In the name of tolerance and unity, hundreds
of volunteers are gathering and setting to work on community projects:
planting gardens, cleaning up schools and parks, and refurbishing
churches and senior centers. The week's events will culminate on Sunday
with a Jewish Food Faire at one of the targeted synagogues and an
afternoon rally at the State Capitol.
Mr. President, every community in America should take inspiration
from the people of Sacramento. They have turned their shock, anger, and
fear into positive actions. From the ashes of hatred and intolerance,
they have emerged stronger and more unified than ever before.
Hate crimes seek to stigmatize persecuted groups and isolate them
from the larger society. We must turn the tables to isolate those who
preach hatred and commit hate crimes. This will not be easy: Today hate
groups flood the Internet with venom, and hateful individuals flood the
talk shows with vitriol.
To stop hate crimes, we must of course catch and prosecute the
perpetrators. But we must do more than that. We must each act to root
hatred and intolerance out of our daily lives. We must have zero
tolerance for intolerance. If a friend or family member uses hateful
speech, we must have the courage to say that this is unacceptable. If a
neighbor or co-worker takes an action designed to hurt another because
of that person's race or religion or sexual orientation, we must stand
with the victim, not the aggressor.
Congress can pass laws to prevent and prosecute hate crimes. I voted
to pass such legislation today, and I will do so again. But laws alone
cannot wipe the stain of hatred off the American landscape. To do
this--to truly secure the blessings of liberty for all Americans--we
must each take every opportunity to teach tolerance and act against
hatred.
Mr. ROCKEFELLER. Mr. President, I believe it is vital to make a clear
statement against all violent hate crimes against individuals because
of race, color, religion, national origin, gender, sexual orientation,
or disability. This is a basic point, and the number of hate crimes in
our country is truly disturbing. When such a case claims headlines and
dominates national news for a few days or a few weeks, people are
troubled and sad. But we can and we should do more to oppose hate
crimes.
My hope is that having leaders at all levels, including the U.S.
Senate, speak against such hate crimes will send a powerful message
that such violent behavior should not be tolerated. No one in our
country should be afraid of violence because of their race, religion,
color, national origin, gender, sexual orientation, or disability. When
such crimes occur, families are devastated and entire communities are
stunned and hurt.
In addition to sending a strong message, the Kennedy amendment would
offer federal help to combat violent hate crimes, including up to
$100,000 in

[[Page S5434]]

federal grants to state and local law enforcement officials to cover
the expenses of investigating and prosecuting such crimes. Federal
grants would also encourage cooperation and coordination with the
community groups and schools that could be affected. The bipartisan
Kennedy amendment is a balanced attempt to combat hate crimes by
helping state and local officials.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Alaska.
Mr. STEVENS. Mr. President, I ask unanimous consent that the next
series of votes be limited to 10 minutes each.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Utah.
Mr. HATCH. Mr. President, I admire my colleagues. I feel very much
the same as they do about these heinous crimes, but I have absolute
confidence that our State and local governments are taking care of
them.
The problem with the Kennedy amendment is that it is unconstitutional
and it is bad policy.
First, the Kennedy amendment is unconstitutional because it seeks to
make a Federal crime of purely private conduct committed by an
individual against a person because of that person's race, color,
religion, national origin, gender, disability, or sexual orientation.
This broad federalization of what are now State crimes would be
unconstitutional under the commerce clause, the 13th amendment, the
14th amendment, and, possibly, the 1st amendment. This is clear in
light of the Supreme Court's recent decision just last month in United
States v. Morrison.
As Senators, we have a real duty to consider whether the legislation
we enact is constitutional, and not just try to get away with all we
can and hope the Supreme Court will fix it for us.
Secondly, the Kennedy amendment is bad policy. It would make a
Federal crime out of every rape and sexual assault--crimes committed
because of the victim's gender--and, as such, would seriously burden
Federal law enforcement agencies, Federal prosecutors, and Federal
courts.
In addition, the Kennedy amendment would not permit the death penalty
to be imposed, even in cases of the most heinous hate crimes, such as
the Byrd case, where State law permits prosecutors to seek the death
penalty.
Finally, the Kennedy amendment, by broadly federalizing what now are
State crimes, would allow the Justice Department to unnecessarily
intrude in the work of State and local police and prosecutors without
any real justification for doing so right now. That is why we need to
do this study while at the same time providing monies to help the State
and local prosecutors to do a better job.
The Kennedy amendment is unconstitutional, and it is bad policy. I
urge my colleagues to vote against it.
Mr. KENNEDY. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is on agreeing to amendment No. 3473. The clerk will
call the roll.
The legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from Oklahoma (Mr. Inhofe)
is necessarily absent.
The VICE PRESIDENT. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 57, nays 42, as follows:

[Rollcall Vote No. 136 Leg.]

YEAS--57

Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Bryan
Burns
Chafee, L.
Cleland
Collins
Conrad
Daschle
DeWine
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Graham
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
Mack
Mikulski
Moynihan
Murray
Reed
Reid
Robb
Rockefeller
Roth
Sarbanes
Schumer
Smith (OR)
Snowe
Specter
Stevens
Torricelli
Voinovich
Wellstone
Wyden

NAYS--42

Abraham
Allard
Ashcroft
Bennett
Bond
Brownback
Bunning
Byrd
Campbell
Cochran
Coverdell
Craig
Crapo
Domenici
Enzi
Fitzgerald
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Kyl
Lott
McCain
McConnell
Murkowski
Nickles
Roberts
Santorum
Sessions
Shelby
Smith (NH)
Thomas
Thompson
Thurmond
Warner

NOT VOTING--1

Inhofe

The amendment (No. 3473) was agreed to.
Mr. KENNEDY. Mr. President, I move to reconsider the vote.
Mr. DURBIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 3475

The VICE PRESIDENT. Under the previous order, the Senate will now
debate for 4 minutes evenly divided the Dodd amendment relating to
Cuba. The Senator from Connecticut is recognized.
Mr. DODD. Mr. President, this amendment establishes a 12-member
bipartisan commission to review Cuba policy and make recommendations
with respect to how that policy might be altered to best serve the
interests of the United States.
Mr. President, I will not read the documents, but I will leave them
for my colleagues' consideration: A letter signed by Howard Baker,
Frank Carlucci, Henry Kissinger, Malcolm Wallop, along with 26
colleagues, 16 from the floor, a letter from George Shultz, and one
from the leading dissident groups inside Cuba calling for the
commission to try to take a look at U.S.-Cuban policy.
It is time to stop, in my view, the absurd fixation we have on one
individual and to remove an important foreign policy issue from the
small but powerful group that doesn't allow us to think what is in our
best interest as a nation. We ought to listen to foreign policy
experts. This commission is not predetermined; it is not shackled. It
may very well come back and recommend a continuation of the embargo.
But it seems to me we ought to at least listen.
We are watching the Koreans come together. We are watching advances
in the Middle East. Today, we are watching efforts around the world to
bring people together to resolve historic differences.
Today, Pete Peterson, former POW, represents U.S. interests as our
Ambassador in Vietnam. Does that mean we agree with the policies of the
Vietnamese Government? No. We recognize, by trying to tear down the
walls that have historically divided us, we can try to build a better
relationship between the two countries. We will soon be voting on
whether or not to have a trading relationship with China. We are
watching improvements in the Middle East. Northern Ireland brings hope
for resolving differences.
All I am asking with this amendment--it has been recommended by
Secretaries of Defense, Secretaries of State, 26 of our colleagues, in
a bipartisan letter to the President only a few months ago--is to
establish a commission to examine U.S.-Cuban policies to see if we
can't come up with some better answers than the historic debate which
has divided us on this issue.
I urge adoption of the amendment.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. SMITH of New Hampshire. I yield myself 1 minute.
It is not our fault that Cuba is repressive. It is Castro who is to
blame. Appeasing Castro by instituting the commission whose stealth
objective is to lift the embargo without Castro having undertaken any
reforms is nothing more than a unilateral and unwarranted concession to
a regime which refuses to concede even the smallest effort to reform
human rights.
This is not the appropriate vehicle for this bill, the Armed Services
Committee. There are other important things with which we need to deal.
Cuba should first change its policy toward its own people, and after
that, the United States can change its policy toward Cuba.
I yield to Senator Mack.
Mr. MACK. Mr. President, I ask my colleagues on both sides of the
aisle to vote to table this amendment. It is blatantly political in its
nature. Of the 12 positions, 8 will be determined by the Democratic
Party and 4 by the Republicans; 6 by the President, 2 by the majority
in each of the Houses, 1 by the

[[Page S5435]]

minority in each. That is 8 of 12--two-thirds.
We should not, today, be telling the next President of the United
States what his policy should be with respect to Cuba. This Congress
and this President should not be doing that.
Third, I only had the opportunity to speak with Frank Carlucci and
Howard Baker. While they accept the concept of a commission, they don't
support one that is so blatantly political, and they don't support one
being established at this time.
I ask my colleagues to vote against this amendment, and I move to
table the amendment.
The PRESIDING OFFICER. All time is yielded back.
Mr. DODD. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is on agreeing to the motion to table the amendment No.
3475. The clerk will call the roll.
The assistant legislative clerk called the roll.
The PRESIDING OFFICER (Mr. Bunning). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 59, nays 41, as follows:

[Rollcall Vote No. 137 Leg.]

YEAS--59

Abraham
Allard
Ashcroft
Bennett
Bond
Brownback
Bryan
Bunning
Burns
Campbell
Chafee, L.
Cochran
Collins
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Frist
Gorton
Graham
Gramm
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Kohl
Kyl
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Reid
Robb
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Torricelli
Voinovich
Warner

NAYS--41

Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Byrd
Cleland
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Fitzgerald
Grams
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kerrey
Kerry
Landrieu
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Leahy
Levin
Lincoln
Mikulski
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The motion to table was agreed to.
Mr. GRAHAM. Mr. President, I move to reconsider the vote.
Mr. SANTORUM. I move to lay that motion on the table.
The PRESIDING OFFICER. The Senator from California.

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