Congressional Record publishes “SUNSHINE FOR REGULATIONS AND REGULATORY DECREES AND SETTLEMENTS ACT OF 2017” on Oct. 25, 2017

Volume 163, No. 172 covering the 1st Session of the 115th Congress (2017 - 2018) was published by the Congressional Record.

The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.

“SUNSHINE FOR REGULATIONS AND REGULATORY DECREES AND SETTLEMENTS ACT OF 2017” mentioning the Environmental Protection Agency was published in the House of Representatives section on pages H8194-H8204 on Oct. 25, 2017.

More than half of the Agency's employees are engineers, scientists and protection specialists. The Climate Reality Project, a global climate activist organization, accused Agency leadership in the last five years of undermining its main mission.

The publication is reproduced in full below:

SUNSHINE FOR REGULATIONS AND REGULATORY DECREES AND SETTLEMENTS ACT OF

2017

General Leave

Mr. COLLINS of Georgia. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days to revise and extend their remarks and to include extraneous material on H.R. 469.

The SPEAKER pro tempore (Mr. Norman). Is there objection to the request of the gentleman from Georgia?

There was no objection.

The SPEAKER pro tempore. Pursuant to House Resolution 577 and rule XVIII, the Chair declares the House in the Committee of the Whole House on the state of the Union for the consideration of the bill, H.R. 469.

The Chair appoints the gentleman from Tennessee (Mr. Duncan) to preside over the Committee of the Whole.

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In the Committee of the Whole

Accordingly, the House resolved itself into the Committee of the Whole House on the state of the Union for the consideration of the bill

(H.R. 469) to impose certain limitations on consent decrees and settlement agreements by agencies that require the agencies to take regulatory action in accordance with the terms thereof, and for other purposes, with Mr. Duncan from Tennessee in the chair.

The Clerk read the title of the bill.

The CHAIR. Pursuant to the rule, the bill is considered read the first time.

The gentleman from Georgia (Mr. Collins) and the gentleman from Rhode Island (Mr. Cicilline) each will control 30 minutes.

The Chair recognizes the gentleman from Georgia.

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

Mr. Chairman, I am glad to be here on H.R. 469. We have had the opportunity, through rule debate yesterday, to discuss this.

What we are coming forward with today is a bill that I have introduced that basically breaks down to what we know is a sue and settlement ban on this part of my bill. There are other parts that we are going to get to as we go forward in this.

But I think I want to start off this debate today by simply stating some of the foundational issues--things that we come here and talk about many times on the floor of the House have to do with bills and discussions. But one of the things I think that has been very disturbing for me--and I know many of our colleagues as we have come up here--is the disturbing trend of moving away from Congress relieving its powers and taking ownership of its Article I authority, and doing the oversight, doing the planning, doing the budgeting, and then sort of moving that more toward the executive branch or letting the judicial system take responsibility.

And I think one of the things that we are starting out with today in these bills, that we have taken up over the past 2 days, is a general discussion to move back toward Article I authority, which Congress is doing the legislating and the oversight that it is supposed to be, and the executive branch is following through in their role of actually executing the laws that are made, judicial, of course, being the interpretive branch.

What we are seeing in this bill--and one of the reasons for our sue and settlement legislation, which is my part of this bill, and I want to start here, and we will continue as we go through this through the other parts as we go--is really a fairness issue. And this is not specific to one party in the executive branch. I stated this yesterday. Sometimes it gets mixed up. But hear me clearly: I don't care the party of the resident at 1600 Pennsylvania Avenue. I do not care who they may be in the sense of what they do in that job. What I want to know is: Are they fulfilling the executive branch role and not overstepping Congress' role?

What we have seen over previous administrations, including the last one and the previous administration, especially under this area of sue and settlement that increased greatly during the last administration, was this idea of taking a law that we have passed, having the regulatory agency's job to execute that law; but, at the same point in time, being sued by a friendly party, or another party, on a deadline of the bill, or something that they want to, they go into, say, with EPA or another agency, and they discuss this lawsuit. They come to an agreement, and they file the suit. Many times the suit and the consent were filed on the same day.

The consent decree--now, look, consent decrees are good judicial tools. They have been used, and will continue to be used, even under this bill. But what we don't want to have happen is when the consent decree basically comes at the time of the suit, or just shortly thereafter, where the party that wants to see a specific agenda pushed, along with a willing agency, goes to a judge, is able to get that consent decree, and then turn around and give it to somebody else and say: You now have to live under this without any emphasis or any input from the other party.

So we are simply saying: Let's make this a little fair. You are going to have to publicize notice, you are going to have to actually include others who may have a problem with this consent decree, and you are going to have to do it a little more transparently.

So we are going to start here today, Mr. Chairman. We are going to talk about these issues and coming forward. We can talk about many other things as the day progresses, but, at the end of the day, it is about Congress itself taking control of its Article I authority and saying, ``We are going to be the legislative branch that we are called to be,'' and the executive taking their role and judiciary taking theirs.

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

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

Mr. Chairman, I rise in opposition to H.R. 469, an unwarranted and costly intrusion into Congress' powers under Article I of the Constitution that will undermine the enforcement of statutory deadlines.

When passing laws, Congress routinely establishes mandatory deadlines for agency action. These statutory deadlines serve several purposes. They establish congressional priorities, attempt to reduce undue delay in an agency's compliance with the law, and communicate the importance of a legal requirement to the public. But because agency resources are limited, there is widespread noncompliance with statutory deadlines, as the Administrative Conference of the United States has long observed.

Accordingly, a plaintiff with standing may file a lawsuit to complete a schedule for an agency to complete an action required by Congress, often referred to as a ``deadline suit.'' As the nonpartisan Government Accountability Office, the GAO, reported earlier this year, ``Most deadline suits are resolved through a negotiated settlement agreement because, in the majority of them, it is undisputed that a statutory deadline was missed,'' and there was no legal defense to the lawsuit.

But proponents of H.R. 469 assert that these settlements undercut applicable administrative law and short-circuit review of new regulations. This premise is based on a report by the Chamber of Commerce that the so-called sue and settle process is increasingly being used as a technique to shape agencies' regulatory agendas. This concern, however, is unsupported by any independent evidence and has been debunked by the GAO.

In two reports on deadline suits, the GAO has found that, ``the settlement agreements did not affect the substantive basis or procedural rulemaking requirements,'' of the agencies it studied.

In its December 2014 report on deadline lawsuits involving the Environmental Protection Agency, the GAO determined that none of the settlements finalized under the Obama administration ``included terms that finalized the substantive outcome of a rule.'' The GAO underscored this point in the title of its report: ``Impact of Deadline Suits on EPA's Rulemaking is Limited.''

In its February 2017 report on deadline suits involving the Endangered Species Act, the GAO found that ``the settlement agreements did not affect the substantive basis or procedural rulemaking requirements the agencies were to follow in completing the actions, such as providing opportunities for public notice and comment on proposed listing rules.''

Leading experts have also debunked the Chamber's sue and settle narrative. John Cruden, a senior career official at the Justice Department for more than two decades during two Republican and two Democratic administrations, testified on a substantially identical bill that he was ``not aware of any instance of a settlement that could remotely be described as collusive, but that the Justice Department vigorously represented the Federal agency, defending the agency's legal position, and obtaining in any settlement the best possible terms that were consistent with the controlling law.''

Other administrative law experts, such as Robert Weissman, the president of Public Citizen, have similarly testified that sue and settlement allegations are patently false.

This bill is also unnecessary because current law and agency practice already restrict the use of settlement policy to shape regulatory priorities. During its exhaustive review of deadline litigation, the GAO found that the Justice Department is guided by the Meese memo of 1986, when litigating deadline suits. This policy, as the GAO noted earlier this year, limits the settlement of a deadline suit to ``only include a commitment to perform a mandatory action by an agreed upon schedule and would not otherwise predetermine or prescribe a specific substantive outcome for the actions to be completed by the agencies.''

The Meese memo was codified in 1991, in the Code of Federal Regulations, and applies to settlement policy today. The Meese policy primarily restricts agencies from using settlement policy to contravene the law or congressional intent.

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As the majority noted in its report on a substantially identical version of the bill considered last Congress, this policy is grounded in separation of powers concerns. There is no evidence that agencies do not follow this policy, and the majority's witnesses in prior hearings on this proposal have been unable to provide examples of settlements that violate the Meese policies.

H.R. 469 is also wasteful and undermines Congress' powers under Article I of the Constitution. Congress, not agencies, establish regulatory priorities through statutes. Agencies do not have discretion to pick and choose regulatory priorities where Congress has expressly instructed that certain actions be undertaken by a specific date. By imposing a series of onerous procedures that will constrain the use of settlements to resolve a Federal agency's noncompliance with the law, H.R. 469 erodes the constitutional function of the legislative branch.

Finally, the bill is also costly. The Congressional Budget Office notes that this bill greatly lengthens the settlement process, costing millions of dollars and straining the Treasury's Judgment Fund through increased attorney's fees.

In closing, I strongly oppose this measure.

I now yield the balance of my time to the gentleman from Michigan

(Mr. Conyers), our ranking member, to control.

Mr. CONYERS. Mr. Chair, I reserve the balance of my time.

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

Mr. Chairman, our system of government is a tripartite one, with each branch having certain defined functions delegated to it. The Congress is charged with writing the laws, the President with executing the laws, and the judiciary with interpreting them.

The Constitution divides powers between the branches in this manner in order to guard against the abuse of power by any one branch. The separation of powers is at the core of the fundamental premise of our constitutional design that a limited government, divided into three branches exercising enumerated powers, is necessary to protect individual liberty and the rule of law.

Unfortunately, over the last several decades, Congress has allowed its powers to gradually be chipped away at by the other branches. By allowing its powers to be diminished, Congress, especially this House, effectively is permitting the people to be deprived of their most responsive voice in the Federal Government. Through the legislation before us today and other legislation that the House has actively pursued in recent years, we can begin to reestablish and enforce the limits on the authority of the other two branches.

Although no package of bills by itself can rebuild Congress' institutional strength and restore the Constitution's integrity, it is absolutely necessary that Congress begin reasserting the powers that it has ceded to the other branches. This package of bills promotes the restoration of Congress' Article I powers.

The first bill in the package addresses executive branch negotiated regulatory decrees and settlements. Over the past several decades, consent decrees and settlement agreements increasingly have been used in Federal litigation to allow the executive branch to write new law in ways that give short shrift to the requirements of the Administrative Procedure Act, Regulatory Flexibility Act, and other laws by which Congress has prescribed how agencies must conduct rulemaking.

While the executive does have some regulatory authority, these settlements and consent decrees have been used to aggrandize that authority and shift regulatory priorities under the cloak of judicial authority. This subverts the boundaries both the Constitution and Congress have placed on administrative authority.

The Sunshine for Regulations and Regulatory Decrees and Settlements Act limits the ability of the executive branch to collude with plaintiffs to abuse consent decrees and settlement agreements in a manner that allows the executive to thwart laws written by Congress and increases the power of the judiciary beyond its constitutional limits.

The second bill in the package, the Judgment Fund Transparency Act, increases transparency over Federal spending by requiring the Treasury Department to publish data on settlements and court-offered judgments entered against the Federal Government.

One of Congress' core powers is the authority to authorize and appropriate money from the Treasury. In order to properly exercise this power, Congress needs to know how the bill it has appropriated is being spent.

This bill will allow Congress to better scrutinize and understand where Federal taxpayer dollars are going. Only through the transparency this bill provides can Congress make the executive and the judiciary more accountable for the money that comes out of the Judgment Fund.

The final bill in the package, the Article I Amicus and Intervention Act, makes clear Congress' ability to defend and assert its institutional interests in litigation that puts the powers and responsibilities of Congress into question.

Currently, when the executive branch declines to pursue litigation in defense of an act of Congress, it is not required to give Congress notice sufficient to allow the House or Senate to defend the lawsuit before court filing deadlines have expired. In addition, the House of Representatives, unlike the Senate, does not have a statutory right to intervene or file amicus briefs in cases questioning congressional authority. This legislation ensures that both Houses of Congress have adequate time and a right to intervene in litigation that questions congressional authority.

We cannot continue to abdicate our powers and responsibilities to the other branches of government, weakening the separation of powers enshrined in our Constitution and threatening the very liberty divide powers were designed to protect.

Mr. Chair, I ask my colleagues to support this legislation, and I reserve the balance of my time.

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

Mr. Chairman, I am very pleased to be here to support--well, I don't think it is going to be support. It is really more in opposition to this so-called Sunshine for Regulations and Regulatory Decrees and Settlements Act.

Well, why? Well, because it is anticonsumer.

Well, why? Because it is antienvironment.

Well, why? Because it is antiprivacy.

Not surprisingly, a broad consortium of more than 150 organizations strenuously oppose this bill, including some of our best nonprofits: the National Resources Defense Council, for example; the Sierra Club, for another example; Public Citizen; and a lot of labor organizations and other groups.

Title I of this bill, for example, has one goal: it is to discourage the use of settlement agreements and consent decrees that compel agencies to follow the law.

When enacting new statutes, Congress routinely establishes deadlines for agency action, particularly when it involves urgent public health and safety concerns. When agencies fail to meet these deadlines, a party with standing may file a lawsuit under section 7 of the Administrative Procedure Act to ensure that the agency performs this mandatory, nondiscretionary duty. By delaying the enforcement of statutory deadlines, the bill, however, jeopardizes public health and safety, which explains why the previous Obama administration issued a veto threat to similar legislation considered only last Congress.

Title I imposes nearly impossible hurdles for agencies seeking to resolve the deadline lawsuits and gives opponents of regulation multiple opportunities to stifle agency regulatory actions.

With respect to consent decrees concerning a rulemaking, an agency would be forced to go through two public comment periods--one for the consent decree, and one for the rulemaking that results from the consent decree--doubling the agency's effort. In addition, it would allow any affected party to intervene in opposition to a proposed settlement agreement or consent decree.

Contrary to the claims of those who support this measure, the Government Accountability Office has found no evidence that these deadline lawsuits are collusive. As the Justice Department, which represents most Federal agencies, acknowledged earlier this year, these agencies are left with few defenses, if any, to these lawsuits.

I am also concerned that H.R. 469 will inevitably generate more litigation that will result in millions of dollars of additional transactional costs, all of which will be borne by you know who--the American taxpayer.

For example, the nonpartisan Congressional Budget Office, in its analysis of the bill's predecessor from the last Congress, concluded:

The measure would impose millions of dollars in additional costs, most of which would be incurred because the litigation involving consent decrees and settlement agreements would probably take longer under the bill, and agencies would face additional administrative requirements.

That is a quotation. In other words, Title I of this bill is a costly solution, again, in search of a problem.

Now, Title II of the bill isn't much better. For instance, Title II overrides the Privacy Act to require publication of sensitive personal information of victims of government abuse or unlawful conduct, which raises serious privacy concerns.

Although proponents of this measure argue it will increase government transparency, its real effect will be to force the Treasury Department to publish, on the Internet, the names of individual victims of government misconduct compensated for their claims by the Judgment Fund, including victims of race and sex discrimination, and so, in effect, revictimizing victims harmed by the Federal Government.

Finally, Title III would facilitate the ability of the House majority to intervene in pending cases where the Justice Department has already determined that it will not defend the constitutionality of a Federal law.

Not only do these provisions raise possible separation of powers concerns, it is unclear why they are even needed.

This measure has not ever been the subject of a single hearing or markup by the Judiciary Committee of the House of Representatives. As a result, there has not been any opportunity to consider these critical issues and to analyze the ramifications presented by Title III.

For all of these reasons, I must, accordingly, urge my colleagues to oppose H.R. 469.

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

Mr. COLLINS of Georgia. Mr. Chairman, I appreciate the comments, especially of my friend from Rhode Island. I would agree in principle with the Meese amendment as well. The problem is that, through the Clinton administration and through preceding administrations, it has been watered down. I would actually go back to that. The problem is lack of transparency and the lack of a coherent voice here as we go further, but I do appreciate the comments.

Mr. Chair, I yield 2 minutes to the gentleman from South Carolina

(Mr. Norman).

Mr. NORMAN. Mr. Chair, I rise today in overwhelming and adamant support of H.R. 469, the Sunshine for Regulations and Regulatory Decrees and Settlements Act, which will strengthen Article I powers for Congress.

Let me begin by briefly quoting Article I, Section 8 of our Constitution, the Necessary and Proper Clause: ``The Congress shall have the power . . . to make all laws which shall be necessary and proper for carrying into execution the foregoing powers . . . in the government,'' meaning, Congress must continue to respect and reinforce the idea of the separation of powers in our government, but, at the same time, Congress can ultimately decide when, whether, and how to legislate the powers and authority of another branch of government.

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Mr. Chairman, this piece of legislation will go a long way in fortifying the balance of powers and reestablishing Congress' authority set forth by James Madison and our Founding Fathers and Article I of the United States Constitution.

Furthermore, we must be sure to use our constitutional authority to effectively guarantee and ensure that government is more efficient, transparent, and accountable to all American citizens of our great Nation, and this bill will do just that.

It is time for Congress to establish procedures for honest regulations, transparency within the Treasury Department, and judicial intervention in unconstitutional court cases.

Mr. Chairman, again, I rise in full support of H.R. 469, and I urge all of my colleagues on both sides of the aisle and in both Chambers to make sure this is a government not only of the people, but for the people.

Mr. CICILLINE. Mr. Chairman, I yield 4 minutes to the distinguished gentleman from New York (Mr. Nadler).

Mr. NADLER. Mr. Chairman, I rise in strong opposition to H.R. 469, the newly renamed Congressional Article I Power Strengthening Act.

This bill stitches together three unrelated bills, each one problematic in its own way.

Title III of the bill, the Article I Amicus and Intervention Act, would permit as a right the House to intervene as a party where an amicus in a lawsuit with the Department of Justice declines to defend the constitutionality of a law or regulation.

While this proposal may have some merit, it was introduced only last week. It was the subject of no hearing. It has had no markup. We simply do not know the full implications of the measure. If it is a worthy proposal, we should take the time to consider it in committee before moving forward.

Title II of the legislation, the Judgment Fund Transparency Act, would require additional reporting about the funds paid out of the Treasury Department's Judgment Fund by the United States Government to resolve legal claims against it. This legislation raises significant privacy concerns. It would require publishing sensitive, personally identifying information about individual claimants who are the victims of government misconduct, such as medical malpractice, racial discrimination, or sexual harassment.

Our laws should carefully balance the need for public disclosure of government spending with the need to protect the personal privacy of individual citizens. This bill upsets that balance.

By far, the most concerning aspect of this legislation is Title I, the Sunshine for Regulations and Regulatory Decrees and Settlements Act.

This provision also poses as a transparency measure, but its real aim is to disrupt and delay the process for issuing rules that protect public health and safety.

Congress frequently sets a statutory deadline for an agency to complete a rulemaking, but the agency sometimes misses that deadline. Under current law, private parties can sue the agency to meet its statutory obligations. Since there is little dispute that the agency has failed to do its duty, these lawsuits often end up settling, with the agency agreeing to a new schedule in which to complete the required rulemaking. That is perfectly reasonable.

However, the Republican majority and the businesses that are the subject of such regulation believe these lawsuits have some nefarious purpose. They have concocted an imagined vast conspiracy by which private parties collude with the government to file a lawsuit, and the government happily either settles or enters into a consent decree, supposedly allowing it to impose obligations or rules beyond what it could otherwise do.

Unfortunately for supporters of this bill, there is no evidence of such a conspiracy and no evidence, in fact, of any problem. To solve this nonexistent problem, this bill adds numerous procedural requirements before a settlement or consent degree can be entered into.

The effect of these requirements would be to make any settlements or consent decrees more difficult and more time-consuming to enter into, with the predictable result that agencies will not even bother to enter into them at all.

Most troubling, the bill would create a special and more permissive rule for virtually any party to involve itself in the case as an intervener. These interveners would do their best to ruin, block, or delay any settlement, including during what should be private negotiations.

That, of course, is the true purpose of this bill. They seek to tie government agencies up in years of litigation so that they are unable to issue rules protecting public health and safety. The real conspiracy here is the Republican plot to destroy the regulatory state. With one hand, we defund the agencies; and with the other hand, we build all sorts of hurdles in the regulatory process so that the agencies have no ability to complete their work.

It is a shameful effort that may save big businesses some money and regulatory compliance, but it will cost our citizens their health, their safety, and possibly their lives.

Mr. Chairman, I urge my colleagues to oppose this terrible legislation.

Mr. COLLINS of Georgia. Mr. Chairman, I don't believe, as was just stated, that there is a nefarious plot here. It is to get government doing the regulation it should with transparency--and that is what needs to be done--and have Congress do what it should be doing, and that is writing laws and having the regulatory process start from here. That is simply what we are looking at. If that is too much, I understand.

Mr. Chairman, I yield 5 minutes to the gentleman from Utah (Mr. Stewart).

Mr. STEWART. Mr. Chairman, I would like to thank Mr. Collins and Chairman Goodlatte for their work.

Mr. Chairman, I have to say, in listening to this debate, I can't imagine why anyone would oppose this legislation that is entirely designed to create transparency. This is good work that Chairman Goodlatte and Mr. Collins have worked on.

Last week we heard a number of shocking stories about government malfeasance, such as Chairman Goodlatte's investigation that the government had settled and revealed that the Obama Justice Department had funneled money to politically allied groups. We are grateful for that.

Today we are taking up H.R. 469, and I am thrilled that this legislation includes the text of my bill, the Judgment Fund Transparency Act.

As I said, the purpose of this act is really very simple. Actually, contrary to what has been said, it is to bring simplicity, it is to bring transparency. This bill would go a long way to providing our constituents and taxpayers a better idea of how their tax dollars are spent.

Heaven knows, and for heaven's sake, those of us here certainly know that sometimes the Federal Government makes mistakes. It is not perfect. It is prone to errors and it can cause harm to individuals. And when that happens, especially when these errors are particularly egregious, the government is sued and damages can be awarded.

Early on, in fact, this Congress spent a lot of its time doing nothing but that, sorting through claims and making appropriations to pay those claims. In fact, not even 100 years ago, much of this body's work was consumed only by this topic. It wasn't until 1956 that Congress established the Judgment Fund and gave authority to the Treasury Department to resolve these claims in ``a permanent and indefinite appropriation.'' That has simply been abused.

In keeping with the law, the Treasury Department files a yearly report with Congress and maintains a web page that supposedly can be searched. That sounds good, but it doesn't work that way. It is cryptic and has otherwise limited information related to each payout that has made the data almost entirely worthless. There is no information on what the government did. There is no information on the claimant. We are all familiar with, for example, when the previous administration took $1.3 billion out of the fund and converted it to cash and delivered it to Iran.

Four years ago, The New York Times reported what was likely an illegal billion-dollar payout to farmers who had never even sued the government. This isn't just unacceptable, it is crazy. It is horrible government. It is what leads people to distrust the Federal Government.

It would require the Treasury to make payment out of this fund public, and it would include very simple things that common sense would simply demand.

This bill would name the agency. It would name the name of the plaintiff and the amount that they were paid, then a brief description of the facts around that claim.

Mr. Chairman, I will conclude by just saying the Judgment Fund Transparency Act may not prevent bad decisions by all government employees, but it will shine a light on decisions to the American people. It is about helping to increase trust between the American people and government, a government that we have given them reason not to trust. Let's bring in accountability and transparency to that.

Mr. Chairman, I urge my colleagues to support this bill and the language found within this bill.

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

I just want to again remind folks that, during the course of this argument, we have heard this narrative about the problems with the sue and settle, as Mr. Nadler described it, an imagined, concocted vast conspiracy, but without any evidence that it actually exists, a solution in search of a problem.

Just to remind folks, there were two reports done by the GAO--I have them in my hand; they are thick--that, in fact, undermine the suggestion that there is any such problem.

In response to requests from the Republican committee chairs, the Government Accountability Office has twice concluded that agencies cannot and do not circumvent the rulemaking system through settlements relating to statutory deadlines.

Finally, we received testimony earlier this year from Attorney General Jeff Sessions' Justice Department that current agency policy, which was codified in 1991, prohibits circumventing the rulemaking process through deadline lawsuits. We have heard similar testimony from career Justice Department officials in prior administrations.

I ask the question: How is H.R. 469 necessary in light of this complete lack of support for this so-called sue and settle phenomenon and the presence of controls against this from happening in the first instance?

Mr. Chair, again, there is just no evidence to support the necessity for this. I think it has been articulated very well by my colleagues what the dangers are of moving forward with this legislation.

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

Mr. COLLINS of Georgia. Mr. Chairman, I yield 4 minutes to the gentleman from Louisiana (Mr. Johnson), a member of the Judiciary Committee.

Mr. JOHNSON of Louisiana. Mr. Chairman, I rise today to speak in favor of H.R. 469, the Sunshine for Regulations and Regulatory Decrees and Settlements Act.

This is an important piece of legislation because, as has been noted here, it seeks to increase accountability on the regulatory process by providing greater scrutiny of sue and settle cases. Yes, they do exist.

It requires the Department of Justice to release details of payments made through the Judgment Fund, and it strengthens Congress' ability to intervene on litigation regarding the constitutionality of congressional statutes.

This legislation also includes H.R. 1096, the Judgment Fund Transparency Act, which I am proud to cosponsor. That piece of legislation includes an amendment I offered, which would require the Secretary of the Treasury to clearly display the total expenditures, including the attorney's fees, interest, and all other payments made from the Judgment Fund on an annual basis.

Hardworking taxpayers deserve to know where their tax dollars are being spent, and Congress must ensure that programs like the Judgment Fund are following the law. The American people must be allowed every available tool to keep their government accountable, and this will be an important tool.

Also, it would ensure a terrorist organization is prohibited from receiving any taxpayer funds from the Judgment Fund by prohibiting any foreign terrorist organization, as defined in section 219 of the Immigration and Nationality Act.

That statute clearly classifies a terrorist organization as those who

``engage in terrorist activity or terrorism, and the organization threatens the security of the United States nationals or the national security of the United States.''

These terrorist organizations only seek to commit serious harm or potential targets, of course, including Americans, and I believe this prohibition is warranted to be included in this important legislation.

Let me be clear. We should all agree that not a cent of taxpayer dollars should ever go to a state sponsor of terrorism or foreign terrorist organizations. A recent illustration of the need for this ban on funding to state sponsors of terrorism is what we now know about the previous administration. They paid $1.3 billion from the Judgment Fund to the nation of Iran in a settlement dating back over 30 years. Although all the information surrounding this payment was never made clear to the public, Iran still remains a state sponsor of terrorism, the most notorious one.

Mr. Chair, again, I strongly support H.R. 469. We must never allow taxpayer dollars to be given to violent rogue nations that support terrorists or, obviously, terrorist organizations, and this will ensure a constitutional check on the Judgment Fund. This is about Article I, the authority of this body. For that reason, Mr. Chairman, I strongly support it, and I encourage our colleagues to do the same.

Mr. CICILLINE. Mr. Chairman, I yield myself the balance of my time.

Mr. Chairman, I just want to say I am baffled by the gentleman from Louisiana's assertion that this legislation improves accountability. It is very hard to imagine how undermining the enforcement of duly enacted legislation by Congress of the United States improves accountability.

This is like the upsidedown world. How does that improve accountability, making it more difficult to enforce the laws passed by Congress of the United States?

Mr. Chairman, I just want to say in closing that it is very important to note that my opposition to H.R. 469 is joined by a very broad spectrum of organizations, including the American Federation of Labor and Congress of Industrial Organizations, or AFL-CIO; the American Federation of State, County, and Municipal Employees; Public Citizen; Consumer Federation of America; the National Consumer Law Center; the Natural Resources Defense Council; the Sierra Club; Earthjustice; and People for the American Way; among many others.

Mr. Chairman, I think that is company, which should suggest to my colleagues that this legislation does not benefit the American people, it will undermine the actions of Congress.

Mr. Chairman, I urge everyone to vote ``no,'' and I yield back the balance of my time.

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

In closing, I just want to say that this is not just something that has been dreamed up, as far as from a bill perspective. And they can point to studies that say this may or may not be a part, but even the outside organization, the Environmental Council of the States, sent a letter and basically did a resolution that said there is a need to reform State participation in EPA consent decrees which settled through citizen lawsuits. I mean, this is an issue because there is not the transparency that is needed. That is why these bills are here.

I would just like to remind everyone why we are considering this bill today, going back to where we first started, and why the House passed the Stop Settlement Slush Funds Act and the Congressional Subpoena Compliance and Enforcement Act earlier this week: to help restore and reinforce the powers the people gave Congress in Article I of the Constitution.

Restoring and reinforcing these powers is not some academic issue; this is something that we practice every day. It goes back to as early as our elementary school days dealing with our simple civics, saying this is the way our government is set up.

I have said this before, Mr. Chairman, from this podium, and I will say it again. If the people in agencies down the street would like to make law, then I encourage them to leave their job, run for Congress, and come up here and make law. This is not their job to do it from a cubicle down the street through a lawsuit. We need to do it up here, as it should be properly done.

So, for far too long, Congress has been giving away its power. We want to see that change. We are going to see that. That is why this bill is here. And although this bill alone is certainly not a silver bullet for restoring the power the Congress has ceded, just as powers are gradually lost over time, they will be regained by Congress gradually reasserting itself.

I ask my colleagues to join me in support of this legislation to reassert congressional authority and to ensure that individual liberty protected by the powers of separation of powers between the branches is maintained.

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

Ms. JACKSON LEE. Mr. Speaker, I rise to express my strong opposition to H.R. 469 the ``Sunshine for Regulatory Decrees and Settlements Act'' of 2017.

H.R. 469 is yet another attempt to undermine the ability of Federal regulators to protect the health and safety of Americans.

This ill-conceived bill imposes numerous new procedural burdens on agencies and courts intended to dissuade them from using consent decrees and settlement agreements to resolve enforcement actions filed to address agency noncompliance with the law.

H.R. 469 targets consent decrees and settlement agreements involving congressionally mandated federal agency actions.

These agency actions in many instances have the purpose of protecting civil rights, health, safety, and the environment.

H.R. 469 prescribes a host of burdensome--and, in some cases, ambiguous--steps for courts and parties relating to such consent decrees and settlements that would favor continued litigation over settlement.

H.R. 469 establishes a prolonged process of publication, intervention, and court-supervised mediation for these types of settlements.

This prolonged process would waste judicial, individuals, and local governments' resources, while wealthy corporations are empowered to perpetuate violations of federal rules.

Such hurdles to settlements conflict directly with the expressly stated and longstanding policy of the federal judiciary system to favor compromise and the settlement of disputes in order to make the best use of limited resources.

Proponents of this legislation argue that agencies and interest groups collude to ``sue and settle'' to avoid compliance with the procedures set forth in the Administrative Procedure Act.

These allegations are unfounded in fact.

The consent decrees and settlement agreements at issue do not determine the substance of agency rules.

Rather, such agreements simply seek to enforce mandatory statutory and procedural duties (such as deadlines enacted by Congress).

In fact, a December 2014 Government Accountability Office report surveyed settlements over deadlines for major U.S. Environmental Protection Act rulemakings and found that the settlements did not influence the substantive results.

Furthermore, all public notice and comment requirements of the Administrative Procedure Act and the individual laws at issue still apply when an agency undertakes the substantive action for which a deadline was missed.

Parties and non-parties alike are provided with numerous opportunities to provide input in advance of the rules being finalized.

H.R. 469 undermines protections for the American people, masqueraded as a measure to prevent undocumented and unfounded allegations of ``sue and settle'' collusion between public interest plaintiffs and sympathetic federal agencies entering into consent decrees and settlements.

In fact, H.R. 469 favors industry interests at taxpayer expense and promotes regulatory uncertainty by making it virtually impossible to actually enter into consent decrees and settlements that avoid the costly and time consuming alternative of litigation.

But its most serious flaw is that H.R. 469 is really a back door way to derail the rulemaking process and undermine federal law, shifting limited agency resources away from the implementation of health and safety protections for the very people that we are supposed to be representing.

What this bill truly targets are the legal rights of citizens to hold government accountable by enforcing laws designed to protect health, safety, and the environment, obligations that the supporters of this bill would prefer to remain unenforced.

A broad coalition of more than 150 civil rights, environmental, consumer protection and other public interest groups opposed the bill in the last Congress.

On Monday, October 23, 2017, I received a letter signed by 86 environmental protection and civil rights groups urging me to oppose this bill.

A bill that attempts to give third parties the power to obstruct and delay the enforcement of federal law; which will harm plaintiff corporations, state and local governments, nonprofit groups, and individuals alike, when their interests have been harmed by illegal federal agency actions or inactions.

Consent decrees and settlement agreements are simple, streamlined ways to hold federal agencies accountable when they ignore Congress by failing to commit congressionally mandated actions by a date established in statute.

H.R. 469 is a sad attempt to eliminate vital and broadly supported protections that have improved and saved millions of American lives.

By providing opportunities for industry to subvert or delay the process of redressing injured groups, H.R. 469 effectively makes it more expensive for agencies to do what Congress has mandated, that is to protect the American people and redress any harm to their livelihood.

Some of the unwholesomeness of this bill could have been mitigated had the Jackson Lee amendment to H.R. 469 been made in order.

The Jackson Lee amendment would have excepted consent decrees or settlement agreements that pertain to a reduction in illness or death from exposure to toxic substances in communities that are protected by Executive Order 12898.

Executive Order 12898 directs federal agencies to identify and address the disproportionately high and adverse human health and environmental effects of agency action on minority and low-income populations.

It is impossible to understand why even conservative Republicans would back legislation that hinders enforcement of the law, requires agencies to waste money in court on cases they believe they cannot win, and would stymie industry and state settlements along with all others.

I urge all members to vote against H.R. 469 and reject this harmful legislation.

The Acting CHAIR (Mr. Mitchell). All time for general debate has expired.

Pursuant to the rule, the bill shall be considered for amendment under the 5-minute rule.

It shall be in order to consider as an original bill for the purpose of amendment under the 5-minute rule an amendment in the nature of a substitute consisting of the text of Rules Committee Print 115-34. That amendment in the nature of a substitute shall be considered as read.

The text of the amendment in the nature of a substitute is as follows:

H.R. 469

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the

``Congressional Article I Powers Strengthening Act''.

(b) Table of Contents.--The table of contents of this Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I--SUNSHINE FOR REGULATIONS AND REGULATORY DECREES AND

SETTLEMENTS

Sec. 101. Short title.

Sec. 102. Definitions.

Sec. 103. Consent decree and settlement reform.

Sec. 104. Motions to modify consent decrees.

Sec. 105. Effective date.

TITLE II--JUDGMENT FUND TRANSPARENCY

Sec. 201. Short title.

Sec. 202. Judgment fund transparency.

TITLE III--ARTICLE I AMICUS AND INTERVENTION

Sec. 301. Short title.

Sec. 302. Congressional intervention as of right.

Sec. 303. Intervention and amicus authority for house of representatives.

TITLE I--SUNSHINE FOR REGULATIONS AND REGULATORY DECREES AND

SETTLEMENTS

SEC. 101. SHORT TITLE.

This title may be cited as the ``Sunshine for Regulations and Regulatory Decrees and Settlements Act of 2017''.

SEC. 102. DEFINITIONS.

In this title--

(1) the terms ``agency'' and ``agency action'' have the meanings given those terms under section 551 of title 5, United States Code;

(2) the term ``covered civil action'' means a civil action--

(A) seeking to compel agency action;

(B) alleging that the agency is unlawfully withholding or unreasonably delaying an agency action relating to a regulatory action that would affect the rights of--

(i) private persons other than the person bringing the action; or

(ii) a State, local, or tribal government; and

(C) brought under--

(i) chapter 7 of title 5, United States Code; or

(ii) any other statute authorizing such an action;

(3) the term ``covered consent decree'' means--

(A) a consent decree entered into in a covered civil action; and

(B) any other consent decree that requires agency action relating to a regulatory action that affects the rights of--

(i) private persons other than the person bringing the action; or

(ii) a State, local, or tribal government;

(4) the term ``covered consent decree or settlement agreement'' means a covered consent decree and a covered settlement agreement; and

(5) the term ``covered settlement agreement'' means--

(A) a settlement agreement entered into in a covered civil action; and

(B) any other settlement agreement that requires agency action relating to a regulatory action that affects the rights of--

(i) private persons other than the person bringing the action; or

(ii) a State, local, or tribal government.

SEC. 103. CONSENT DECREE AND SETTLEMENT REFORM.

(a) Pleadings and Preliminary Matters.--

(1) In general.--In any covered civil action, the agency against which the covered civil action is brought shall publish the notice of intent to sue and the complaint in a readily accessible manner, including by making the notice of intent to sue and the complaint available online not later than 15 days after receiving service of the notice of intent to sue or complaint, respectively.

(2) Entry of a covered consent decree or settlement agreement.--A party may not make a motion for entry of a covered consent decree or to dismiss a civil action pursuant to a covered settlement agreement until after the end of proceedings in accordance with paragraph (1) and subparagraphs (A) and (B) of paragraph (2) of subsection (d) or subsection (d)(3)(A), whichever is later.

(b) Intervention.--

(1) Rebuttable presumption.--In considering a motion to intervene in a covered civil action or a civil action in which a covered consent decree or settlement agreement has been proposed that is filed by a person who alleges that the agency action in dispute would affect the person, the court shall presume, subject to rebuttal, that the interests of the person would not be represented adequately by the existing parties to the action.

(2) State, local, and tribal governments.--In considering a motion to intervene in a covered civil action or a civil action in which a covered consent decree or settlement agreement has been proposed that is filed by a State, local, or tribal government, the court shall take due account of whether the movant--

(A) administers jointly with an agency that is a defendant in the action the statutory provisions that give rise to the regulatory action to which the action relates; or

(B) administers an authority under State, local, or tribal law that would be preempted by the regulatory action to which the action relates.

(c) Settlement Negotiations.--Efforts to settle a covered civil action or otherwise reach an agreement on a covered consent decree or settlement agreement shall--

(1) be conducted pursuant to the mediation or alternative dispute resolution program of the court or by a district judge other than the presiding judge, magistrate judge, or special master, as determined appropriate by the presiding judge; and

(2) include any party that intervenes in the action.

(d) Publication of and Comment on Covered Consent Decrees or Settlement Agreements.--

(1) In general.--Not later than 60 days before the date on which a covered consent decree or settlement agreement is filed with a court, the agency seeking to enter the covered consent decree or settlement agreement shall publish in the Federal Register and online--

(A) the proposed covered consent decree or settlement agreement; and

(B) a statement providing--

(i) the statutory basis for the covered consent decree or settlement agreement; and

(ii) a description of the terms of the covered consent decree or settlement agreement, including whether it provides for the award of attorneys' fees or costs and, if so, the basis for including the award.

(2) Public comment.--

(A) In general.--An agency seeking to enter a covered consent decree or settlement agreement shall accept public comment during the period described in paragraph (1) on any issue relating to the matters alleged in the complaint in the applicable civil action or addressed or affected by the proposed covered consent decree or settlement agreement.

(B) Response to comments.--An agency shall respond to any comment received under subparagraph (A).

(C) Submissions to court.--When moving that the court enter a proposed covered consent decree or settlement agreement or for dismissal pursuant to a proposed covered consent decree or settlement agreement, an agency shall--

(i) inform the court of the statutory basis for the proposed covered consent decree or settlement agreement and its terms;

(ii) submit to the court a summary of the comments received under subparagraph (A) and the response of the agency to the comments;

(iii) submit to the court a certified index of the administrative record of the notice and comment proceeding; and

(iv) make the administrative record described in clause

(iii) fully accessible to the court.

(D) Inclusion in record.--The court shall include in the court record for a civil action the certified index of the administrative record submitted by an agency under subparagraph (C)(iii) and any documents listed in the index which any party or amicus curiae appearing before the court in the action submits to the court.

(3) Public hearings permitted.--

(A) In general.--After providing notice in the Federal Register and online, an agency may hold a public hearing regarding whether to enter into a proposed covered consent decree or settlement agreement.

(B) Record.--If an agency holds a public hearing under subparagraph (A)--

(i) the agency shall--

(I) submit to the court a summary of the proceedings;

(II) submit to the court a certified index of the hearing record; and

(III) provide access to the hearing record to the court; and

(ii) the full hearing record shall be included in the court record.

(4) Mandatory deadlines.--If a proposed covered consent decree or settlement agreement requires an agency action by a date certain, the agency shall, when moving for entry of the covered consent decree or settlement agreement or dismissal based on the covered consent decree or settlement agreement, inform the court of--

(A) any required regulatory action the agency has not taken that the covered consent decree or settlement agreement does not address;

(B) how the covered consent decree or settlement agreement, if approved, would affect the discharge of the duties described in subparagraph (A); and

(C) why the effects of the covered consent decree or settlement agreement on the manner in which the agency discharges its duties is in the public interest.

(e) Submission by the Government.--

(1) In general.--For any proposed covered consent decree or settlement agreement that contains a term described in paragraph (2), the Attorney General or, if the matter is being litigated independently by an agency, the head of the agency shall submit to the court a certification that the Attorney General or head of the agency approves the proposed covered consent decree or settlement agreement. The Attorney General or head of the agency shall personally sign any certification submitted under this paragraph.

(2) Terms.--A term described in this paragraph is--

(A) in the case of a covered consent decree, a term that--

(i) converts into a nondiscretionary duty a discretionary authority of an agency to propose, promulgate, revise, or amend regulations;

(ii) commits an agency to expend funds that have not been appropriated and that have not been budgeted for the regulatory action in question;

(iii) commits an agency to seek a particular appropriation or budget authorization;

(iv) divests an agency of discretion committed to the agency by statute or the Constitution of the United States, without regard to whether the discretion was granted to respond to changing circumstances, to make policy or managerial choices, or to protect the rights of third parties; or

(v) otherwise affords relief that the court could not enter under its own authority upon a final judgment in the civil action; or

(B) in the case of a covered settlement agreement, a term--

(i) that provides a remedy for a failure by the agency to comply with the terms of the covered settlement agreement other than the revival of the civil action resolved by the covered settlement agreement; and

(ii) that--

(I) interferes with the authority of an agency to revise, amend, or issue rules under the procedures set forth in chapter 5 of title 5, United States Code, or any other statute or Executive order prescribing rulemaking procedures for a rulemaking that is the subject of the covered settlement agreement;

(II) commits the agency to expend funds that have not been appropriated and that have not been budgeted for the regulatory action in question; or

(III) for such a covered settlement agreement that commits the agency to exercise in a particular way discretion which was committed to the agency by statute or the Constitution of the United States to respond to changing circumstances, to make policy or managerial choices, or to protect the rights of third parties.

(f) Review by Court.--

(1) Amicus.--A court considering a proposed covered consent decree or settlement agreement shall presume, subject to rebuttal, that it is proper to allow amicus participation relating to the covered consent decree or settlement agreement by any person who filed public comments or participated in a public hearing on the covered consent decree or settlement agreement under paragraph (2) or (3) of subsection (d).

(2) Review of deadlines.--

(A) Proposed covered consent decrees.--For a proposed covered consent decree, a court shall not approve the covered consent decree unless the proposed covered consent decree allows sufficient time and incorporates adequate procedures for the agency to comply with chapter 5 of title 5, United States Code, and other applicable statutes that govern rulemaking and, unless contrary to the public interest, the provisions of any Executive order that governs rulemaking.

(B) Proposed covered settlement agreements.--For a proposed covered settlement agreement, a court shall ensure that the covered settlement agreement allows sufficient time and incorporates adequate procedures for the agency to comply with chapter 5 of title 5, United States Code, and other applicable statutes that govern rulemaking and, unless contrary to the public interest, the provisions of any Executive order that governs rulemaking.

(g) Annual Reports.--Each agency shall submit to Congress an annual report that, for the year covered by the report, includes--

(1) the number, identity, and content of covered civil actions brought against and covered consent decrees or settlement agreements entered against or into by the agency; and

(2) a description of the statutory basis for--

(A) each covered consent decree or settlement agreement entered against or into by the agency; and

(B) any award of attorneys fees or costs in a civil action resolved by a covered consent decree or settlement agreement entered against or into by the agency.

SEC. 104. MOTIONS TO MODIFY CONSENT DECREES.

If an agency moves a court to modify a covered consent decree or settlement agreement and the basis of the motion is that the terms of the covered consent decree or settlement agreement are no longer fully in the public interest due to the obligations of the agency to fulfill other duties or due to changed facts and circumstances, the court shall review the motion and the covered consent decree or settlement agreement de novo.

SEC. 105. EFFECTIVE DATE.

This title shall apply to--

(1) any covered civil action filed on or after the date of enactment of this title; and

(2) any covered consent decree or settlement agreement proposed to a court on or after the date of enactment of this title.

TITLE II--JUDGMENT FUND TRANSPARENCY

SEC. 201. SHORT TITLE.

This title may be cited as the ``Judgment Fund Transparency Act of 2017''.

SEC. 202. JUDGMENT FUND TRANSPARENCY.

(a) Transparency Requirement.--Section 1304 of title 31, United States Code, is amended by adding at the end the following:

``(d)(1) Unless the disclosure of such information is otherwise prohibited by law or court order, the Secretary of the Treasury shall make available to the public on a website, as soon as practicable, but not later than 30 days after the date on which a payment under this section is tendered on or after January 1, 2016, the following information with regard to that payment:

``(A) The name of the specific agency or entity whose actions gave rise to the claim or judgment.

``(B) The name of the plaintiff or claimant.

``(C) The name of counsel for the plaintiff or claimant.

``(D) The amount paid representing principal liability, and any amounts paid representing any ancillary liability, including attorney fees, costs, and interest.

``(E) A brief description of the facts that gave rise to the claim.

``(F) The name of the agency that submitted the claim.

``(G) Any information available on reports generated by the Judgment Fund Payment Search administered by the Treasury Department.

``(2) In addition to the information described in paragraph

(1), if a payment under this section is made to a foreign state on or after January 1, 2016, the Secretary of the Treasury shall make available to the public in accordance with paragraph (1), the following information with regard to that payment:

``(A) A description of the method of payment.

``(B) A description of the currency denominations used for the payment.

``(C) The name and location of each financial institution owned or controlled, directly or indirectly, by a foreign state or an agent of a foreign state through which the payment passed or from which the payment was withdrawn, including any financial institution owned or controlled, directly or indirectly, by a foreign state or an agent of a foreign state that is holding the payment as of the date on which the information is made available.

``(3) Not later than January 1, 2018, and annually thereafter, the Secretary of the Treasury shall make available to the public on the website described in paragraph

(1)--

``(A) the total amount paid under this section during the year preceding the date of the report; and

``(B) the amount paid under this section during the year preceding the date of the report--

``(i) for attorney fees;

``(ii) for interest; and

``(iii) for all other payments.

``(4) In this subsection, the term `foreign state' has the meaning given the term in section 1603 of title 28.

``(e) Except with regard to children under eighteen, the disclosure of information required in this section shall not be considered a `clearly unwarranted invasion of personal privacy' for purposes of title 5, United States Code.

``(f) No payment may be made under this section to a state sponsor of terrorism, as defined in section 1605A(h) of title 28, or to an organization that has been designated as a foreign terrorist organization under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189).''.

(b) Implementation.--The Secretary of the Treasury shall carry out the amendment made by this section by not later than 60 days after the date of enactment of this title.

TITLE III--ARTICLE I AMICUS AND INTERVENTION

SEC. 301. SHORT TITLE.

This title may be cited as the ``Article I Amicus and Intervention Act of 2017''.

SEC. 302. CONGRESSIONAL INTERVENTION AS OF RIGHT.

(a) Deadline for Report on Limitation on Enforcement of Laws.--Paragraph (2) of section 530D(b) of title 28, United States Code, is amended to read as follows:

``(2) under subsection (a)(1)(B), within such time as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in a timely fashion in the proceeding, but in no event--

``(A) later than 30 days after the making of each determination; and

``(B) later than 21 days before any applicable deadline for filing any pleading necessary--

``(i) to defend or assert the constitutionality of the provision at issue; or

``(ii) to request review of any judicial, administrative, or other determination adversely affecting the constitutionality of such provision;''.

(b) Intervention as of Right.--Section 530D of title 28, United States Code, is amended by adding at the end the following:

``(f) Intervention as of Right.--The Senate or House of Representatives may intervene as of right in any proceeding referenced in subsection (a)(1)(B) in order to defend or assert the constitutionality of any provision of any Federal statute, rule, regulation, program, policy, or other law, or to appeal or request review of any judicial, administrative, or other determination adversely affecting the constitutionality of any such provision. Notwithstanding any otherwise applicable time limits or other provisions of law to the contrary, if such intervention is filed not later than 21 days after receipt of the notice required by this section the intervention shall be deemed timely and shall preserve the right of the Senate or House of Representatives to advance any applicable legal arguments in favor of the constitutionality of any such provision.''.

SEC. 303. INTERVENTION AND AMICUS AUTHORITY FOR HOUSE OF

REPRESENTATIVES.

Section 101 of the Legislative Branch Appropriations Act, 2000 (2 U.S.C. 5571), is amended--

(1) by striking subsection (d); and

(2) by inserting after subsection (b) the following (and redesignating succeeding subsections accordingly):

``(c) House of Representatives Intervention and Amicus Authority.--

``(1) Actions or proceedings.--When directed to do so in accordance with the Rules of the House of Representatives, the General Counsel of the House of Representatives shall intervene or appear as amicus curiae in the name of the House, or in the name of an officer, committee, subcommittee, or chair of a committee or subcommittee of the House, or other entity of the House, in any legal action or proceeding pending in any court of the United States or of a State or political subdivision thereof.

``(2) Intervention or appearance as of right.--Intervention as a party or appearance as amicus curiae shall be of right and may be denied by a court only upon an express finding that such intervention or appearance is untimely and would significantly delay the pending action or, in the case of intervention, that standing to intervene is required and has not been established under section 2 of article III of the Constitution of the United States.

``(3) Rule of construction.--Nothing in this section shall be construed to confer standing on any party seeking to bring, or jurisdiction on any court with respect to, any civil or criminal action against Congress, either House of Congress, a Member of Congress, a committee or subcommittee of a House of Congress, any office or agency of Congress, or any officer or employee of a House of Congress or any office or agency of Congress.''.

The Acting CHAIR. No amendment to that amendment in the nature of a substitute shall be in order except those printed in part A of House Report 115-363 and the amendment designated in the order of the House of October 24, 2017. Each such amendment may be offered only in the order printed in the report, by a Member designated in the report, shall be considered as read, shall be debatable for the time specified in the report equally divided and controlled by the proponent and an opponent, shall not be subject to amendment, and shall not be subject to a demand for division of the question.

Amendment No. 1 Offered by Mr. Collins of Georgia

The Acting CHAIR. It is now in order to consider amendment No. 1 printed in part A of House Report 115-363.

Mr. COLLINS of Georgia. Mr. Chairman, I rise as the designee of Chairman Goodlatte, and I have an amendment at the desk.

The Acting CHAIR. The Clerk will designate the amendment.

The text of the amendment is as follows:

Page 16, line 2, insert after ``otherwise prohibited by law'' the following: ``(other than section 552a of title 5, United States Code)''.

The Acting CHAIR. Pursuant to House Resolution 577, the gentleman from Georgia (Mr. Collins) and a Member opposed each will control 5 minutes.

The Chair recognizes the gentleman from Georgia.

Mr. COLLINS of Georgia. Mr. Chairman, the Department of the Treasury's interpretation of current law prohibits it from making public the names of plaintiffs. My amendment clarifies that these names, which this bill requires to be disclosed, will, in fact, be disclosed.

In January 2016, it was reported that the United States agreed to pay

$1.7 billion to Iran in a settlement arising from an agreement to sell military equipment to Iran prior to the 1979 Iranian Revolution. At the time, it was known that $400 million in cash had been transferred to Iran, but it was unclear, even after public inquiry, how the remaining

$1.3 billion had been paid.

On August 22, 2016, the New York Sun reported that, while conducting an ongoing but fruitless search of ``Iran'' as a claimant in the Treasury database, it found 13 payments totaling 13 cents less than

$1.3 billion, as well as an additional payment of just over $10 million. Without further context, however, the New York Sun could not confirm whether these payments were, in fact, part of the settlement.

It was only after months of increased public scrutiny, long after the money had been disbursed, that the previous administration acknowledges that these payments were indeed part of the Iran settlement.

My amendment will ensure that the public knows about the conduct of its government and the laws that are being faithfully executed and that justice is being served. The information that this bill requires to be disclosed, which, in many cases is already publicly available in court documents, informs Congress and the public in new ways, particularly with regard to systemic government abuse.

Furthermore, any concerns about the disclosure of the plaintiffs' names are mitigated by the fact that this amendment does not foreclose a court's ability to protect private information. Indeed, the information required to be made public in title II will not be disclosed if such disclosure is prohibited by a court order. Moreover, Federal judges have ample discretion to allow a plaintiff to proceed under the pseudonym as a ``Doe plaintiff'' or to seal and redact intimate records.

My amendment is necessary to prevent future government abuse by increasing the overall transparency of the Judgment Fund and, in turn, increasing government accountability.

I urge my colleagues to support this important clarification, and I reserve the balance of my time.

Mr. CICILLINE. Mr. Chairman, I seek time in opposition to the amendment.

The Acting CHAIR. The gentleman from Rhode Island is recognized for 5 minutes.

Mr. CICILLINE. Mr. Chairman, I think it is very important to say at the outset this is not about clarifying anything. This is about a major change in policy.

This amendment will permit the publication of a victim's sensitive information, such as the individual's name and case history, on the internet. This overrides the Privacy Act.

So let's be clear about what this is. This is not a clarification. This is a major change in policy.

This amendment will make a bad bill even worse. It specifies that the Privacy Act does not prohibit the publication of a victim's sensitive information, such as his or her name and case history.

Under current law, the Treasury Department cannot, for the purposes of the Judgment Fund, publish the sensitive information of individuals who are victims of government abuse or misconduct, such as a name or case history. This is because the Privacy Act requires an individual's consent prior to publishing their name or other sensitive information.

Although proponents of this amendment may claim that this information is, in some instances, already publicly available, the Supreme Court has recognized that a person's privacy interests and their personal information collected in government records does not automatically dissolve because such information may be available to the public already in some other format. Individuals have the right to control the dissemination of their own personal information. This amendment makes it clear that the bill will infringe on an individual's personal privacy if he or she is compensated from the Judgment Fund.

Moreover, this amendment does not further the public interest in government transparency. Publishing an individual person's name on the internet sheds no significant light on the inner workings of government and has no value; and so, to the contrary, it will result in potentially grave harassment or even intimidation.

Revealing this information is an unwarranted intrusion on personal privacy of individuals harmed by government misconduct, which could include victims of medical malpractice as well as racial and sexual discrimination. In effect, it revictimizes the victims of government misconduct or abuse--a terrible result.

So, therefore, I oppose this amendment which does not do anything to improve the bill and, in fact, makes it considerably worse.

Mr. Chairman, I urge my colleagues to vote ``no'' on this amendment. And if you vote for it, recognize that you will have to go home and tell your constituents that you have agreed to a serious invasion of their personal privacy and that it will allow individuals who are victims of government misconduct to have that personal information put on the internet and shared with millions of people all over the world.

I yield back the balance of my time.

Mr. COLLINS of Georgia. Mr. Chairman, you can also go home and tell them, if they filed a suit, that it is already currently in the PACER system, probably with more information than just that, or they could have filed it under a pseudonym or had their lawyers have this suppressed. This is an issue that is already out there; and as we look at this, this is moving forward. So I would just ask that this amendment be reported favorably.

I yield back the balance of my time.

The Acting CHAIR. The question is on the amendment offered by the gentleman from Georgia (Mr. Collins).

The amendment was agreed to.

Amendment No. 2 Offered by Mr. Conyers

The Acting CHAIR. It is now in order to consider amendment No. 2 made in order by the order of the House of October 24, 2017.

Mr. CONYERS. Mr. Chairman, I have an amendment at the desk.

The Acting CHAIR. The Clerk will designate the amendment.

The text of the amendment is as follows:

An Amendment Offered in Lieu of Amendment No. 2 Printed in Part A of

House Report No. 115-363 Offered by Mr. Conyers of Michigan

Page 3, line 17, strike ``; and'' and insert ``, other than an excepted consent decree or settlement agreement;''.

Page 4, line 4, strike the period and insert ``; and''.

Page 4, insert after line 4 the following:

(6) the term ``excepted consent decree or settlement agreement'' means a covered consent decree or covered settlement agreement that prevents or is intended to prevent discrimination based on race, religion, national origin, or any other protected category.

The Acting CHAIR. Pursuant to House Resolution 577, the gentleman from Michigan (Mr. Conyers) and a Member opposed each will control 5 minutes.

The Chair recognizes the gentleman from Michigan.

Mr. CONYERS. Mr. Chairman, my amendment would exempt from H.R. 469 settlement agreements and consent decrees intended to prevent discrimination based on race, religion, national origin, or other protected category.

Given the often systemic nature of discriminatory conduct, settlement agreements and consent decrees provide an invaluable means to provide for general relief for non-identifiable victims and to prevent future discriminatory acts.

In particular, they are instrumental in enforcing critical civil rights protections in a wide variety of cases, including voting rights violations and predatory lending practices based on race. Other examples include the use of consent decrees by the Justice Department to address unconstitutional police pattern or practice activities.

For example, in 2003, the City of Detroit entered into a consent decree with the Justice Department concerning the inappropriate use of force and arrest practices by the city's police department. As a result of this decree, the police department implemented vastly improved practices that have substantially reduced the incidence of fatalities caused by law enforcement activities, a goal that the Judiciary Committee Chairman Goodlatte and I very much endorse.

According to the department's civil rights division, these decrees facilitate institutional reforms, such as improving systems for supervising officers and holding them accountable for misconduct, as well as ensuring officers have the policy guidance, training, equipment, and other resources necessary for constitutional and effective policing.

Unfortunately, H.R. 469 would make the use of such remedies exceedingly difficult by subjecting them to numerous procedural and potentially meritless court challenges.

A particularly concerning provision of this bill is its broad and ill-defined authorization allowing virtually anyone to intervene with respect to a proposed settlement agreement or consent decree.

For example, imagine a proposed settlement agreement intended to restrict a city's school district from discriminating against Muslims. Under the bill, any anti-Muslim or neo-Nazi organization could petition the court to intervene for the purpose of opposing such agreement on the ground that it ``would affect'' such person.

This is just one of the many fundamental problems presented by this thoroughly flawed and, I think, harmful measure, and, so, accordingly, I ask my colleagues here to join me in opposing H.R. 469.

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

Mr. COLLINS of Georgia. Mr. Chairman, I claim the time in opposition.

The Acting CHAIR. The gentleman is recognized for 5 minutes.

Mr. COLLINS of Georgia. Mr. Chairman, with much respect for my ranking member on my committee--we have served together; we have worked on a lot of issues together, namely, the Police Working Group, and other things, and his work has been very helpful in that regard--I do have to oppose this amendment because, really, what this amendment does is seek less transparency, public participation, and judicial review for consent decrees and settlement agreements for regulations that allegedly will help to protect civil rights.

With all due respect, I believe this has matters backwards. More transparency, public input, and judicial scrutiny will only help to produce regulations that better protect civil rights.

Further, since the bill promotes the participation of regulated entities and State, local, and Tribal entities that may be affected by or help to enforce the regulations, it will promote buy-in from these groups. That will help the regulation to be better and more promptly implemented and not held for years in litigation challenging the rules.

I would urge my colleagues to oppose this amendment, and I yield back the balance of my time.

{time} 1715

Mr. CONYERS. Mr. Chairman, although H.R. 469 has many flaws, I am particularly concerned that the bill's broad and ill-defined requirements would effectively delay and possibly deter civil enforcement agencies from providing general relief in discrimination cases, discourage courts from enforcing these settlements, and also invite costly and needless litigation.

In response to this problem, my amendment would simply exclude from the bill's burdensome requirements settlement agreements and consent decrees intended to remediate generalized harms in civil rights cases.

Mr. Chairman, this is a commonsense amendment, and I urge my colleagues here to support it.

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

The Acting CHAIR. The question is on the amendment offered by the gentleman from Michigan (Mr. Conyers).

The amendment was rejected.

Amendment No. 3 Offered by Mr. Johnson of Georgia

The Acting CHAIR. It is now in order to consider amendment No. 3 printed in part A of House Report 115-363.

Mr. JOHNSON of Georgia. I have an amendment at the desk.

The Acting CHAIR. The Clerk will designate the amendment.

The text of the amendment is as follows:

Page 3, line 17, strike ``; and'' and insert ``, other than an excepted consent decree or settlement agreement;''.

Page 4, line 4, strike the period and insert ``; and''.

Page 4, insert after line 4 the following:

(6) the term ``excepted consent decree or settlement agreement'' means a covered consent decree or covered settlement agreement pertaining to a deadline established by Congress through the enactment of a Federal statute to--

(A) significantly improve access to affordable, high-speed broadband internet in under-served markets, such as low-income and rural communities; and

(B) facilitate economic development in locations without sufficient access to such service.

The Acting CHAIR. Pursuant to House Resolution 577, the gentleman from Georgia (Mr. Johnson) and a Member opposed each will control 5 minutes.

The Chair recognizes the gentleman from Georgia.

Mr. JOHNSON of Georgia. Mr. Speaker, I rise to support my amendment to H.R. 469, and to advocate for rural Georgians and Americans across the country who don't have dependable access to broadband internet services.

We are here today debating H.R. 469, a bill that would require burdensome and unnecessary processes that would delay the enforcement of Federal regulations. H.R. 469 undermines the ability of government agencies to protect public health and safety by prohibiting them from using consent decrees and settlements to enforce the law that we pass by allowing private industry to intervene in opposition to regulations that they deem unfavorable to them. It requires the publishing of the personal data of those who bring complaints against the government, thus deterring complaints.

My amendment would ensure that future actions taken by Congress to increase broadband access in rural areas are not stymied by these excessive regulatory burdens. My amendment would exempt any future legislation, or any future rules that may be enacted to bring this technology to underserved areas from the requirements put in place by H.R. 469.

It shouldn't be groundbreaking news that, in many of our districts, a gap exists between urban and rural communities insofar as broadband connectivity is concerned. The Fourth District of Georgia has some rural pockets that are facing this challenge today.

According to a study done by the Pew Research Center in 2016, rural Americans are still 10 percentage points less likely than average citizens to have broadband access at home. Although we have seen improvements since the 16-point gap in 2007, we have much work to do to ensure that all families have access to what is now a modern necessity.

My home State of Georgia ranks 21st in the Nation in terms of access to 25 megabit per second broadband, according to a report put together by the Georgia House and Senate Study Committee on High Speed Broadband Communications Access for all Georgians. In rural counties where this problem persists, we have seen local development stall without access to telehealth services, educational materials, and other digital resources.

Broadband connectivity brings with it countless learning opportunities and exchanges of information that are not possible in isolated communities without broadband. The issue of broadband access is inextricably linked to the vitality of these rural areas, and it is in our best interest as a Congress to give rural communities all of the modern tools they need to succeed.

The FCC's 2016 Broadband Progress Report identified 24 million rural Americans throughout the country who don't have a broadband connection--24 million Americans whose access would be delayed even further by the implementation of H.R. 469's elimination of consent decrees.

I hope Congress can agree on the importance of achieving full broadband access, and I hope that this amendment will begin removing this hurdle that is being put in place by my friends on the other side of the aisle who support business as opposed to people.

Mr. Chair, I urge my colleagues to join me in supporting this commonsense amendment, and I reserve the balance of my time.

Mr. COLLINS of Georgia. Mr. Chair, I claim the time in opposition.

The Acting CHAIR. The gentleman is recognized for 5 minutes.

Mr. COLLINS of Georgia. I was just sitting here, Mr. Chairman, and I am excited and welcome my friend from Georgia to the fight for broadband. I have been leading on this fight now for several years, especially in my district, which is rural, which has a company called Windstream that does not provide for its citizens. I am excited to have the acknowledgment that rural broadband is something that we need to be fighting for.

My district has areas in which Windstream was supposed to use its Connect America funds to widen its footprint on rural broadband. Instead, they have shrunk it, only to compete in areas where they are competing against other companies, and only widening it in areas where they already had technology which they could have widened years before.

I think it is really interesting, and I am so glad about this because it also gives me the opportunity to talk about the GO Act, the Gigabyte Opportunity Act, which actually will provide real solutions into these districts for broadband opportunity.

I would encourage my friends from Georgia and from Michigan, and anybody else, to sign on to this bill. It is a good bill that has support across the way in the Senate, and also working with the administration to provide the way for States to actually look at their own States and provide gigabyte opportunity zones so that they can actually make ways and get these companies that are monopolizing the areas and not serving their constituents.

By the way, Mr. Chairman, it is sad because, in some of my districts right now, it has been over really about 6 weeks or so since Irma came through northeast Georgia and knocked out power and delayed broadband, and I still have customers in my district who do not have phone service or broadband this long after that fact.

This is just unacceptable, so I appreciate the concern here. The only problem is, this amendment doesn't help. This amendment is not one that does--again, it just is another amendment, unfortunately, like the last amendment, that seeks less transparency and public participation. It does not do anything to discourage people from working to find rural broadband solutions.

What this actually does, it just, again, tries to seek less transparency instead of more. But I think there is a positive here. I choose to look at the positive. I disagree with this amendment and would ask that it be voted ``no.'' But I look at the positive to say, as someone from Georgia, we have got a fight we can connect on, and that is rural broadband, because there is no longer a digital divide. There is a hope and dream divide. It is not a digital divide. It is a hope and dream for those students, and those moms, and those dads, and those families in those areas who cannot access the internet.

For me, it was a radio and a book. It took me all over the world. Nowadays, it is the internet and a phone where our students can actually get what they want. Unfortunately, this amendment doesn't do it. I have to oppose this amendment, but I am glad to welcome to the fight another friend against the evils of not being able to expand broadband.

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

Mr. JOHNSON of Georgia. Mr. Chair, I just enjoyed the contrast between our different styles. The Congressman, my friend from Georgia, is very upbeat and passionate. I am more laid back and kind of reserved. But we both agree on the fact that we want more broadband to be accessible to rural customers. We both agree on that.

We just simply disagree on whether or not we should allow a process whereby a third-party corporation can come in and gum up the regulatory scheme that has been laid out in the rulings that have been made and, thus, delay the availability of broadband to rural customers.

Mr. Chair, I would ask respectfully that my colleagues support my amendment, and I yield back the balance of my time.

The Acting CHAIR. The question is on the amendment offered by the gentleman from Georgia (Mr. Johnson).

The question was taken; and the Acting Chair announced that the noes appeared to have it.

Mr. JOHNSON of Georgia. Mr. Chairman, I demand a recorded vote.

The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further proceedings on the amendment offered by the gentleman from Georgia will be postponed.

The Committee will rise informally.

The Speaker pro tempore (Mr. Johnson of Louisiana) assumed the chair.

____________________

SOURCE: Congressional Record Vol. 163, No. 172