Volume 142, No. 39 covering the 2nd Session of the 104th Congress (1995 - 1996) 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.
“STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS” mentioning the Environmental Protection Agency was published in the Senate section on pages S2422-S2431 on March 20, 1996.
The publication is reproduced in full below:
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. JOHNSTON:
S. 1627. A bill to designate the visitor center at Jean Lafitte National Historical Park in New Orleans, Louisiana as the ``Laura C. Hudson Visitor Center''; to the Committee on Energy and Natural Resources.
the laura c. hudson visitor center designation act of 1996
Mr. JOHNSTON. Mr. President, I am pleased today to introduce a measure to designate the visitor center at 419 Rue Decatur in New Orleans, LA, as the ``Laura C. Hudson Visitor Center.''
For almost 24 years I have been privileged to serve in the U.S. Senate. For some 20 of those years I have been blessed with the able assistance of Laura Hudson, who completed her Senate service last August, as my legislative director and indispensable right hand.
In so many ways, Laura personifies the best tradition of Senate service--beginning in one capacity and growing into so many more. The young history postgraduate, who took a legislative- correspondent position in my office in 1975, quickly grew beyond that and has been my invaluable counsel on a variety of legislative challenges over the years.
There are parks and preservation projects, in Louisiana and beyond which exist solely because of the personal commitment and legislative skill of Laura Hudson, whole regions of the globe, such as Micronesia, routinely neglected by many in the Congress, receive a respect and recognition in Washington due heavily to Laura's devotion. That component closeup program, which brings hundreds of students and teachers each year from the former trust territories of Micronesia, is but one example of Laura's passion.
Moreover, I am convinced that the relationship between our country and many of the developing and emerging economies, such as China, Vietnam, and Indonesia, profit in immeasurable ways from the understanding and leadership of staff persons such as Laura.
This is a woman, Mr. President, who has forsaken many opportunities in the private sector because of a deep belief in the merits of public service, and a belief in the simple tenet that she could make a difference. More often than we acknowledge, it is the Laura Hudsons who made a qualitative difference in our daily work product. In honor of her unparalleled contributions, I am introducing this legislation today.
I know that Laura will continue to contribute, as only she can, to public policy. But I will miss her in a way immediate and direct, as will so many of her longtime colleagues in the Senate. But I know they join me in expressing appreciation and best wishes as Laura enters an exciting new chapter of her life.
I ask unanimous consent that a copy of the bill appear in the Record.
There being no objection, the bill was ordered to be printed in the Record, as follows:
S. 1627
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. LAURA C. HUDSON VISITOR CENTER.
The visitor center at Jean Lafitte National Historical Park, located at 419 Rue Decatur in New Orleans, Louisiana, is hereby designated as the ``Laura C. Hudson Visitor Center.''
SEC. 2. LEGAL REFERENCES.
Any reference in any law, regulation, paper, record, map, or any other document of the United States to the visitor center referred to in subsection (a) shall be deemed to be a reference to the ``Laura C. Hudson Visitor Center''.
______
By Mr. BROWN (for himself, Mr. Thomas, Mr. Faircloth, Mr.
Thurmond, and Mr. Helms):
S. 1628. A bill to amend title 17, United States Code, relating to the copyright interests of certain musical performances, and for other purposes; to the Committee on the Judiciary.
MUSIC LICENSING LEGISLATION
Mr. BROWN. Mr. President, I introduce legislation that would lift a burden off of small businesses who currently pay fees to music licensing organizations under a complicated and cumbersome copyright law.
Introduction of this legislation reflects what I consider a fair position. This bill acknowledges the different sides, and aims to reach a compromise position. This legislation comes after hours and hours of negotiations with different interests over the course of several months.
Under current law, music licensing organizations are permitted to collect fees from those who play a radio or television in their commercial establishment. The music may be background music, or it may be music played at half-time during a football game. The music license fee applies to shoe stores, to diners, to shopping centers or any other business establishment.
The artists who create this music certainly deserve compensation for their intellectual property. In fact, those artists are compensated for their labors. When a song is played over a radio or TV, the broadcaster pays for the rights to play that song. When we are at home, and we turn on the radio, we are not expected to pay a second fee. Yet, if a radio is played at a commercial establishment for no commercial gain, a second fee is charged for the music. This double-dipping smacks of unfairness.
In addition, there is tremendous inequity in the way licensing companies assess these fees. The businesses are unable to see a list of the songs that are available for licensing. The businesses are unable, because of the market inequity, to bargain for a fair price. Instead, we have an anticompetitive environment where two or three licensing companies control almost all of the music available. Small businesses have two options: pay the preordained fee or turn off the radio or TV.
The approach I have taken to address this problem aims at leveling this playing field. The legislation I am introducing would require the licensing companies to make a list of their repertory available so businesses can know what products they are paying for.
The legislation would exempt small businesses from paying the fee for music played over radio and TV if a fee has already been paid. Where music has already been paid for by the broadcaster, the copyright owner has in fact been compensated.
In addition, the legislation would establish arbitration to resolve disputes over fees. As it stands, if a retail store wishes to contest the fees paid to one of the licensing companies, they have to go to a court in New York. Moreover, full blown litigation in any case is often prohibitively expensive.
The legislation would require the music licensing companies to offer per period programming licenses--in other words allow radio stations to purchase licenses for shorter time periods instead of 24 hours a day if they are only playing music in short spots between religious, news, or talk shows. I hope my colleagues will join me in leveling the playing field and will support this bill.
I ask unanimous consent that letters in support of this bill from the National Federation of Independent Business, the National Religious Broadcasters, the National Restaurant Association, and the National Retail Federation be included in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
National Federation of
Independent Business,
Washington, DC, March 20, 1996.Hon. Hank Brown,U.S. Senate, Washington, DC.
Dear Senator Brown: On behalf of the more than 600,000 members of the National Federation of Independent Business
(NFIB), I would like to express our support for your compromise music licensing legislation. NFIB believes this proposal will resolve many of the serious problems that exist between the small business community and the music licensing societies--ASCAP, BMI and SESAC.
In a recent NFIB survey, more than 92 percent of small-business owners called for music licensing reform. The time has come for fairness in music licensing.
While your bill is different from S. 1137, it addresses many of the issues that are of great importance to small business owners. It allows small businesses to play incidental music on radios and TV's without violating federal copyright law. In addition, the measure gives small business owners the right to arbitrate fee disputes in local forums rather than forced to file a lawsuit in New York City. Many small businesses across the country cannot afford the added expense of traveling to New York City to dispute fees levied by BMI or ASCAP. The legislation does protect the nine state music licensing laws that have been enacted and the other 15 states with legislation pending.
NFIB commends your efforts to fashion a workable compromise and we look forward to working with you to enact music licensing reform legislation.
Sincerely,
Donald A. Danner,
Vice President,Federal Governmental Relations.
____
National Religious Broadcasters,
Manassas, VA, March 19, 1996.Hon. Hank Brown,U.S. Senate, Washington, DC.
Dear Senator Brown: On behalf of National Religious Broadcasters, I want to commend you and Senators Thurmond, Faircloth, Helms and Thomas for introducing legislation to address the inequities and abuses in the current system for licensing copyrighted music. Our organization, which represents over 800 religious broadcast stations and program providers, is grateful for your leadership and is prepared to support you in any way possible to pass this bill in the 104th Congress.
Legislation is badly needed to rectify the injustices forced upon Christian radio by the entertainment licensing monopolies, ASCAP and BMI. For years, our members who use limited amounts of music in their programming have tried to negotiate a fair license that would allow them to pay simply for the music they play and not be charged as if they played copyrighted works all day long. In the face of monopoly powers granted to ASCAP and BMI by the federal government, and in the absence of clear Congressional policy to guide competition in the licensing arena, we find we have no leverage with which to negotiate a fair ``per program license''. Your bill goes a long way toward solving that problem.
We also understand your bill will require the music licensing monopolies to disclose in a practical and user-friendly way the songs for which they have the rights to collect royalties, and it will not allow ASCAP, BMI or any other licensing organization to bring infringement actions against music users for songs that are not listed in their publicly available data bases. These provisions, together with an effective per program license, are critical to establishing music licensing rules that bear some resemblance to a free market system.
In addition to our strong support for your bill, I also urge you and your cosponsors to block any copyright-related legislation in the Senate that does not incorporate music licensing reforms. It would be unconscionable for Congress to enact any measures that enhance the economic clout of the music licensing monopolies without first correcting their abusive business practices. In the view of religious broadcasters, the current system essentially forces Christian radio stations to indirectly subsidize immoral, violent and sexually explicit entertainers--entertainers who reap millions in royalties from the unfair blanket licenses small religious broadcasters are forced to buy. Please see the attached resolution passed by the NRB Board of Directors in February in this regard.
Thank you again for taking a stand for fairness in music licensing. In doing so, you're also making a stand for the positive, life-changing power of religious radio. The millions of Americans whose lives are enriched every day by religious broadcasts are watching this issue very carefully.
Sincerely,E. Brandt Gustavson, L.L.D., President.
____
National Retail Federation,
Washington, DC, March 19, 1996.Hon. Hank Brown,U.S. Senate, Washington, DC.
Dear Senator Brown: On behalf of the National Retail Federation and the 1.4 million U.S. retail establishments, I am writing to support your compromise legislation to amend federal copyright law to provide the nation's retailers with protection against the arbitrary pricing, discriminatory enforcement and abusive collection practices of music licensing organizations.
Retailers of all sizes, particularly smaller establishments in your state, are confronted daily by costly and unreasonable demands from music licensing organizations. These organizations have monopoly power to set rates and therefore, retailers are frequently asked to pay outrageous and unfair licensing fees to play music which is only incidental to the purpose of their business.
Under your legislation, business establishments that use radio or TV music with less than 5,000 square feet of public space would be exempt from licensing fees as long as the music was purely background or incidental to the purpose of the business, and customers were not charged a fee to listen to the music. While not all retailers are covered under this compromise, we believe it represents significant progress. Your bill also gives businesses the right to arbitrate fee disputes in local forums rather than being forced to file lawsuits in New York and requires music licensors to provide consumers with full information about the music they are purchasing.
Thank you for your leadership on behalf of America's Main Street. Your efforts and those of your staff to provide relief are greatly appreciated. We look forward to working with you to enact this legislation.
Sincerely,
John J. Motley III,
Senior Vice President,Government and Public Affairs.
____
National Restaurant Association,
Washington, DC, March 19, 1996.Hon. Hank Brown,U.S. Senate, Washington, DC.
Dear Senator Brown: On behalf of the National Restaurant Association and the 739,000 foodservice establishments nationwide, we would like to express our support for your compromise music licensing legislation. We believe this proposal will resolve many of the serious problems that exist between the business community and the music licensing societies--ASCAP, BMI, and SESAC.
As you know, your legislation represents major concessions by the business community and is different from S. 1137, the Fairness in Musical Licensing Act of 1995. More importantly, however, you measure addresses many of the issues that are of great significance to restaurateurs throughout the country. These include:
Allowing for a logical expansion of current law to allow small businesses to play incidental music on radios and TVs without violating federal copyright law.
Giving businesses the right to arbitrate fee disputes in local forums rather than being forced to file a lawsuit in New York City.
Requiring music licensors to provide consumers with full information on the product--the music--they are buying.
All of this is done while protecting the nine state laws that have been enacted and the other 15 states with legislation pending. As you know, S. 1619, introduced by Senator Hatch would preempt all state music licensing laws. It also, in our opinion, fails to address the number of the problems that exist with the societies including arbitration and access to repertoire.
Senator, as you know, restaurateurs from around the country have faced harassment, frivolous lawsuits, and arbitrary and onerous licensing fees. On behalf of the entire industry, we want to thank you and your staff for the countless hours you have devoted to reach a reasonable compromise. We fully support your efforts and will work towards enactment of your bill.
Sincerely,
Elaine Graham,
Senior Director, Government Affairs.
Katy McGregor,
Legislative Representative.
______
By Mr. STEVENS (for himself, Mr. Dole, Mr. Abraham, Mr. Bennett,
Mr. Brown, Mr. Coats, Mr. Cochran, Mr. Coverdell, Mr. Craig,
Mr. D'Amato, Mr. Faircloth, Mr. Grams, Mr. Gregg, Mr. Hatch,
Mr. Helms, Mrs. Hutchison, Mr. Inhofe, Mr. Inouye, Mr.
Kempthorne, Mr. Kyl, Mr. Nickles, Mr. Simpson, Mr. Smith, and
Mr. Thompson):
S. 1629. A bill to protect the rights of the States and the people from abuse by the Federal Government; to strengthen the partnership and the intergovernmental relationship between State and Federal governments; to restrain Federal agencies from exceeding their authority; to enforce the 10th amendment to the Constitution; and for other purposes; to the Committee on Governmental Affairs.
the 10th amendment enforcement act of 1996
Mr. STEVENS. Mr. President, today, on behalf of 23 of my colleagues, as well as Governors, attorneys general, State legislators, and mayors across the Nation, I rise to introduce the 10th Amendment Enforcement Act of 1996.
The 10th amendment was a promise to the States and to the American people that the Federal Government would be limited, and that the people of the States could, for the most part, govern themselves as they saw fit.
Unfortunately, in the last half century, that promise has been broken. The American people have asked us to start honoring that promise again: to return power to State and local governments which are close to and more sensitive to the needs of the people.
The 104th Congress and in particular, the Unfunded Mandates Reform Act, started to shift power out of Washington by returning it to our States and to the American people. Today we continue that process.
The 10th Amendment Enforcement Act of 1996 will return power to the States and to the people by placing safeguards in the legislative process, by restricting the power of Federal agencies and by instructing the Federal courts to enforce the 10th amendment.
The act enforces the 10th amendment in five ways:
First, the act includes a specific congressional finding that the 10th amendment means what it says: The Federal Government has no powers not delegated by the Constitution, and the States may exercise all powers not withheld by the Constitution;
Second, the act states that Federal laws may not interfere with State or local powers unless Congress declares its intent to do so and Congress cites its specific constitutional authority;
Third, the act gives Members of the House and Senate the ability to raise a point of order challenging a bill that lacks such a declaration or that cites insufficient constitutional authority. Such a point of order would require a three-fifths majority to be defeated;
Fourth, the act requires that Federal agency rules and regulations not interfere with State or local powers without constitutional authority cited by Congress. Agencies must allow States notice and an opportunity to be heard in the rulemaking process;
Fifth, the act directs courts to strictly construe Federal laws and regulations that interfere with State powers, with a presumption in favor of State authority and against Federal preemption.
Before the bill was even introduced, I received letters of support from many Governors and attorneys general--men and women from across the Nation and from both parties who support our efforts to return power to the States and to the people.
Mr. President, I ask unanimous consent that the text of the bill and letters from Governors Allen, Bush, Engler, Leavitt, Merrill, Racicot, Cayetano, and Thompson, and from Attorneys General Bronster, Condon, and Norton be included in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. STEVENS. Mr. President, as the Supreme Court has stated,
just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.
The 10th Amendment Enforcement Act of 1996 will prevent overstepping by all three branches of the Federal Government, and will focus attention on what State and local officials have been advocating for so long: the need to return power to the States and to the people.
Exhibit 1
S. 1629
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This act may be referred to as the ``Tenth Amendment Enforcement Act of 1996.''
SEC. 2. FINDINGS.
The Congress finds that--
(a) in most areas of governmental concern, State governments possess both the Constitutional authority and the competence to discern the needs and the desires of the People and to govern accordingly;
(b) Federal laws and agency regulations, which have interfered with State powers in areas of State jurisdiction, should be restricted to powers delegated to the Federal Government by the Constitution;
(c) the framers of the Constitution intended to bestow upon the Federal Government only limited authority over the States and the People;
(d) under the Tenth Amendment to the Constitution, the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people;
(e) the courts, which have in general construed the Tenth Amendment not to restrain the Federal Government's power to act in areas of State jurisdiction, should be directed to strictly construe Federal laws and regulations which interfere with State powers with a presumption in favor of State authority and against Federal preemption.
SEC. 3. CONGRESSIONAL DECLARATION.
(a) On or after January 1, 1997, any statute enacted by Congress shall include a declaration--
(1) that authority to govern in the area addressed by the statute is delegated to Congress by the Constitution, including a citation to the specific Constitutional authority relied upon;
(2) that Congress specifically finds that it has a greater degree of competence than the State to govern in the area addressed by the statute; and
(3) if the statute interferes with State powers or preempts any State or local government law, regulation or ordinance, that Congress specifically intends to interfere with State powers or preempt State or local government law, regulation, or ordinance, and that such preemption is necessary.
(b) Congress must make specific factual findings in support of the declarations described in this section.
SEC. 4. POINT OF ORDER.
(a) In General.--
(1) Information required.--It shall not be in order in either the Senate or House of Representatives to consider any bill, joint resolution, or amendment that does not include a declaration of Congressional intent as required under section 3.
(2) Supermajority required.--The requirements of this subsection may be waived or suspended in the Senate or House of Representatives only by the affirmative vote of three-fifths of the Members of that House duly chosen and sworn. An affirmative vote of three-fifths of the Members of the Senate or House of Representatives duly chosen and sworn shall be required to sustain an appeal of the ruling of the chair on a point of order raised under this subsection.
(b) Rule Making.--This section is enacted--
(1) as an exercise of the rule-making power of the Senate and House of Representatives, and as such, it is deemed a part of the rules of the Senate and House of Representatives, but is applicable only with respect to the matters described in sections 3 and 4 and supersedes other rules of the Senate or House of Representatives only to the extent that such sections are inconsistent with such rules; and
(2) with full recognition of the Constitutional right of the Senate or House of Representatives to change such rules at any time, in the same manner as in the case of any rule of the Senate or House of Representatives.
SEC. 5. EXECUTIVE PREEMPTION OF STATE LAW.
(a) In General.--Chapter 5 of title 5, United States Code, is amended by inserting after section 559 the following new section:
``SEC. 560. PREEMPTION OF STATE LAW.
``(a) No executive department or agency or independent agency shall construe any statutory authorization to issue regulations as authorizing preemption of State law or local ordinance by rule-making or other agency action unless--
``(1) the statute expressly authorizes issuance of preemptive regulations; and
``(2) the executive department, agency or independent agency concludes that the exercise of State power directly conflicts with the exercise of Federal power under the Federal statute, such that the State statutes and the Federal rule promulgated under the Federal statute cannot be reconciled or consistently stand together.
``(b) Any regulatory preemption of State law shall be narrowly tailored to achieve the objectives of the statute pursuant to which the regulations are promulgated and shall explicitly describe the scope of preemption.
``(c) When an executive branch department or agency or independent agency proposes to act through rule-making or other agency action to preempt State law, the department or agency shall provide all affected States notice and an opportunity for comment by duly elected or appointed State and local government officials or their designated representatives in the proceedings.
``(1) The notice of proposed rule-making must be forwarded to the Governor, the Attorney General and the presiding officer of each chamber of the Legislature of each State setting forth the extent and purpose of the preemption. In the table of contents of each Federal Register, there shall be a separate list of preemptive regulations contained within that Register.
``(d) Unless a final executive department or agency or independent agency rule or regulation contains an explicit provision declaring the Federal government's intent to preempt State or local government powers and an explicit description of the extent and purpose of that preemption, the rule or regulation shall not be construed to preempt any State or local government law, ordinance or regulation.
``(e) Each executive department or agency or independent agency shall publish in the Federal Register a plan for periodic review of the rules and regulations issued by the department or agency that preempt, in whole or in part, State or local government powers. This plan may be amended by the department or agency at any time by publishing a revision in the Federal Register.
``(1) The purpose of this review shall be to determine whether and to what extent such rules are to continue without change, consistent with the stated objectives of the applicable statutes, or are to be altered or repealed to minimize the effect of the rules on State or local government powers.''.
(b) Any Federal rule or regulation promulgated after January 1, 1997, that is promulgated in a manner inconsistent with this section shall not be binding on any State or local government, and shall not preempt any State or local government law, ordinance, or regulation.
(c) Conforming Amendment.--The table of sections for chapter 5 of title 5, United States Code, is amended by adding after the item for section 559 the following:
``Sec. 560. Preemption of State Law.''.
SEC. 6. CONSTRUCTION.
(a) No statute, or rule promulgated under such statute, enacted after the date of enactment of this Act, shall be construed by courts or other adjudicative entities to preempt, in whole or in part, any State or local government law, ordinance or regulation unless the statute, or rule promulgated under such statute, contains an explicit declaration of intent to preempt, or unless there is a direct conflict between such statute and a State or local government law, ordinance, or regulation, such that the two cannot be reconciled or consistently stand together.
(b) Notwithstanding any other provision of law, any ambiguities in this Act, or in any other law of the United States, shall be construed in favor of preserving the authority of the States and the People.
(c) If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the validity of the remainder of the Act and the application of such provision to other persons and circumstances shall not be affected thereby.
____
State of Utah,
Office of the Governor,
Salt Lake City, March 18, 1996.Hon. Ted Stevens,Chairman, Government Affairs Committee,U.S. Senate, Washington, DC.
Dear Mr. Chairman: Thank you for your recent correspondence sharing with me your proposal to strengthen the 10th Amendment by requiring the federal government to restrict its legislative and regulatory activities to those powers delegated to it under the Constitution.
As you know, I have spent a great deal of time over the past few years working on 10th Amendment issues, and I am very supportive of your proposed legislation. As I have studied the history of the 10th Amendment, it has become clear to me that we must act overtly to strengthen this important precept of the Constitution, or it will continue to erode away.
Let me provide some background on why I believe this is so important. The founders of our country attempted to carefully balance power between the competing interests of the states and the national government. They worried that the national government might gain too much power, so they gave states tools, or rules, that if followed would maintain the healthly tension necessary to protect self-governance by the people and prevent any level of government from overstepping its bounds.
Among those rules or tools given to states were these:
The 10th Amendment, which reserved any power not specifically delegated to the national government to the states and the people. Clearly, the founders intended the national government to stay within the bounds of duties enumerated in the Constitution.
The election of U.S. senators by state legislatures. Having senators directly accountable to state legislatures would keep the national government in check. If the national government centralized authority or passed bills disliked by the states, legislatures could call their senators in for an accounting. It would not be likely for the Congress to usurp state authority if senators owed their political lives to state legislatures. The power was carefully balanced and the tension was healthy.
The ability of state legislatures to initiate constitutional amendments. This also would keep the national government in check because if it got out of line the states could take action to rein it in. It is clear that the founders intended state leaders to have the ability to initiate constitutional amendments.
The sense that state leaders would rise in indignation and band together to oppose congressional centralization of authority and usurpation of power. In Federalist 46, James Madison predicted that ``ambitious encroachments of the federal government on the authority of the state governments
. . . would be signals of general alarm. Every government would espouse the common cause . . . plans of resistance would be concerted.'' States would react as though in danger from a ``foreign yoke,'' he suggested.
Those were some of the tools the founders put in place to safeguard the roles of both levels of government and to prevent either from becoming too dominant.
It would likely be a matter of some bitterness and disappointment to the founders if they were to return today to see what happened to the finely-crafted balance, the healthy tension that they built into the Constitution. As they see a national government that dictates to states on nearly every issue and that is involved in every aspect of citizens' lives, they might wonder what happened to those tools and rules they established to maintain balance.
The sad fact is that each one of those tools has either been eroded away, given away, or rendered impossible to use. Thus, today there does not exist any restraint to prevent the national government from taking advantage of the states. To their credit, leaders of the Republican Congress have gone out of their way to involve governors in important decisions. But there is nothing permanent in that relationship. With a change in leadership, state leaders could easily be relegated to their past status as lobbyists and special interest groups. Over the past several decades, they have had to approach Washington hat in hand, hoping and wishing that Congress will listen to them. There has been no balance of power, no full partnership in a federal-state system. States must accept whatever the Congress gives them. States have no tools, no rules, ensuring them an equal voice.
Let's look at what happened to those tools and rules the founders so carefully provided to ensure balance.
The 10th Amendment has been eroded to the point that in the minds of most Washington insiders it barely exists. The preponderance of congressional action and federal court decisions over the past 60 years have rendered the 10th Amendment nearly meaningless. It would barely be recognizable by the founders. States did not defend or guard it properly and it no longer protects states.
States gave away the power to have their U.S. senators directly accountable to state legislatures. There was good reason for this, as graft and corruption sometimes occurred in the appointment of senators by legislatures. States ratified the 17th Amendment making senators popularly elected, and citizens should not be asked to give up the right to elect their senators. But while it does not make sense to try to restore that tool, it should be replaced with something else more workable.
The ability of states to initiate constitutional amendments has never been used and is essentially unworkable. Clearly, the founders intended for state leaders to be able to initiate amendments as a check on federal power, but it has never happened and likely never will. The Congress sits as a constitutional convention every day it is in session, and can propose constitutional amendments any time it desires. But many citizens have an enormous fear of state leaders coming together to do the same thing, even though any amendment proposed would require ratification by three-fourths of states. Thus, this tool provided by the founders has become impractical and does not protect states from federal encroachment.
The fourth tool was the founders' belief that state leaders would jealously guard their role in the system and rise up in opposition to federal intrusions. That has not happened, especially as state governments have become dependent on federal dollars and have been willing to give up freedom for money. States have proven themselves to be politically anemic. Instead of mobilizing against federal encroachments, state leaders have spent their time lobbying for money and hoping for flexibility.
Thus, it is no wonder that states have little true clout as budget cuts are made and as the pie is being divided in Washington D.C. There is no healthy tension. States have no tools or rules to protect themselves. What is passing for federalism in Washington today is not a true sharing of power, but a subcontracting of federal programs to states. The federal government is merely delegating, not devolving true authority.
Because the tools protecting states have been rendered ineffective, it is important that Congress replace them with new versions that accomplish what the Founders intended. That is why I am so supportive of your Tenth Amendment Enforcement Act. It would help prevent all three branches of the federal government from overstepping their constitutional authority and would help restore the careful balance put in place by the Founders.
I thank you for your efforts to return power to the states and to the people. Please count me among the supporters of this legislation.
Sincerely,
Michael O. Leavitt,Governor, State of Utah.
____
Commonwealth of Virginia,
Office of the Governor,
March 12, 1996.Hon. Ted Stevens,Member, U.S. Senate, Chairman, Committee on Governmental
Affairs, Washington, DC.
Dear Ted: Thank your for your letter regarding the Tenth Amendment Enforcement Act of 1996.
Two centuries ago, the challenge to individual liberty came from an arrogant, overbearing monarchy across the sea. Today, that challenge comes all too often from our own federal government, which has ignored virtually every constitutional limit fashioned by the framers to confine its reach and thus to guard the freedoms of the people.
In our day, the threat to self-determination posed by the centralization of power in the nation's capital has been dramatically demonstrated. Under my administration, Virginia has challenged the constitutionality of federal mandates in court, and I have testified before the Congress in support of restoring powers to the States and the people.
The legislation you are proposing will help the States and the people regain prerogatives usurped by an overbearing federal government. I wholeheartedly support your efforts and would be pleased to work with you to highlight the impact of federal intrusion in Virginia.
With kind personal regards, I remain,
Sincerely,George Allen.
____
State of Michigan,
Office of the Governor,
Lansing, MI, March 19, 1996.Hon. Ted Stevens,U.S. Senate,Washington, DC.
Dear Senator Stevens: I am writing in support of the Tenth Amendment Enforcement Act of 1996, which I understand you intend to introduce this week. Congressional action of this type is necessary to restore vigor to this often-neglected provision of our constitution and I wholeheartedly support your effort to do so.
Congress has over the years run roughshod over state concerns and prerogatives and has generally lost sight of the fact that ours is a federal system of government. In that system, the federal government has only those powers specifically delegated to it and enumerated in the constitution, with the balance remaining with the states or the people. Too often in our recent history the federal government has ignored the meaning of the Tenth Amendment in a mad rush to impose a one-size-fits-all approach in areas of traditional state and local concern. This approach stifles innovation and takes the policy debate further from the people by centralizing decision-making in Washington, D.C.
A recent example of federal intrusion into a matter best left to the states is the Motor Voter law, which imposes an unfunded mandate on the states to offer voter registration services at state social services offices. Michigan must comply with this requirement even though nearly 90 percent of its eligible population is already registered to vote. In fact, Michigan demonstrated the states' superior ability to craft innovative solutions in areas such as this when it initiated the motor voter concept some 21 years ago by offering voter registration services at Secretary of State branch offices. The imposition of a federal ``solution'' in this area ignores the fact that states are better positioned to address the needs of their citizens and can do so without prodding from the federal government.
The Tenth Amendment Enforcement Act of 1996 will help restore the balance to our federal system that the framers of the constitution intended. It will do so by requiring congress to identify specific constitutional authority for the exercise of federal power. This will have the salutary effect of reminding the congress that it can legislate only pursuant to an enumerated power in the constitution. Requiring congress to state its intention to preempt existing state or federal law or interfere with state power should assist in limiting the intrusion the federal Motor Voter law exemplifies.
I recently offered amendments to the National Governors' Association's policy on state-federal relations that the governors adopted at our 1996 winter meeting. That policy calls upon Congress to
``limit the scope of its legislative activity to those areas that are enumerated and delegated to the federal government by the constitution.'' The Tenth Amendment Enforcement Act of 1996 will help reinvigorate this fundamental constitutional principle and for that reason enjoys my full support.
Sincerely,
John Engler,Governor.
____
Office of the Governor,
State of Montana,
Helena, MT, March 6, 1996.Hon. Ted Stevens,Chairman, U.S. Senate Committee on Governmental Affairs,
Washington, DC.
Dear Chairman Stevens: I am writing in support of your proposed legislation entitled the Tenth Amendment Enforcement Act of 1996. I applaud your efforts to protect states from federal legislation that, while perhaps unintentionally, has had a strangling effect on the states' ability to act effectively on behalf of their citizens.
The failure to respect states' rights takes a variety of forms, from unfunded mandates to complex requirements that prohibit states from adopting innovative programs to solve problems that may be unique to the state or region. I am sure it is difficult to determine which functions the federal government should properly manage and which should be left to state or local governments. I think most would agree, however, with the intent of the Tenth Amendment--that a better balance must be struck between the federal government and each of the states.
The revitalization of government is essential in these times of declining trust and diminishing respect of its cities. The Tenth Amendment Enforcement Act of 1996 would make government more responsive to our citizens and help restore the public's faith in the policy process.
I hope your proposal is received well in Congress. I know it would be received well in the states.
Sincerely,
Marc Racicot,Governor.
____
State of Wisconsin,
Office of Federal/State Relations,
Washington, DC, March 5, 1996.Hon. Ted Stevens,Chairman, Rules & Administration Committee, U.S. Senate,
Washington, DC.
Dear Chairman Stevens: I am writing you in support of legislation that you intend to introduce in your committee regarding the Tenth Amendment. Your vision in regard to this delegation of powers should be commended. Our founding fathers would applaud your courageous efforts.
As you know, the Tenth Amendment restricts the federal government's legislative and regulatory activities to those powers delegated to the federal government under the U.S. Constitution.
Since I have held elective office I have always been a staunch supporter of States Rights' and a firm believer that decisions are best made at the local level. Your bill identifies the problems associated with the lack of enforcement of the Tenth Amendment at present and aims to amend some of these inconsistencies.
Under the Tenth Amendment, federal laws may not interfere with state or local powers unless Congress declares its intent to do so, and Congress cites its specific constitutional authority. Allowing Members of Congress to challenge future legislation that attempts to supersede the Tenth Amendment in my opinion would be beneficial.
As Governor of the State of Wisconsin, I have always been a firm believer that legislation is a far better course of action than litigation. Your bill would do away with needless regulation, infringement of states' abilities to provide quality services to its residents', and encourage local decision making opportunities.
The Tenth Amendment Enforcement Act of 1996 would prevent confusion between the three branches of government and would keep the pressure on Washington to address the concerns Governors have been advocating for years; the need to return power to the states and to the people.
Again, I would like to take this opportunity to thank you for your support on this important legislative matter. Please do not hesitate to contact me in the future.
Sincerely,
Tommy G. Thompson,Governor.
____
State of New Hampshire,
Office of the Governor,
Concord, NH, February 26, 1996.Hon. Ted Stevens,U.S. Senate, Chairman, Committee on Governmental Affairs,
Washington, DC.
Dear Senator Stevens: Thank you for your letter outlining your introduction of the Tenth Amendment Enforcement Act of 1996. I am pleased to offer my strong endorsement of this piece of legislation.
The individual states have seen a continual degradation of their power and sovereignty during the past 60 years. Beginning with the creation of the welfare state through President Roosevelt's New Deal in the 1930's, the federal government has inappropriately usurped power traditionally left to the states. Issues such as education, crime, commerce and the environment have been co-opted at the federal level. The result is an erosion of local control and the creation of a system of twisted rules and regulations. This overregulation has stifled State initiatives and innovations. The time has come to say enough is enough.
In the State of New Hampshire, many examples exist of federal overreaching. The most telling of these is our continuing attempts at reforming welfare. Our ambitious program would end welfare as we know it, putting people into the workforce. It is based upon the simple notion that those who are able to work for a living should do so. Instead of collecting a welfare check, individuals would receive unemployment benefits and job training. The result would be a motivated workforce, properly trained and prepared to sustain themselves instead of accepting government largesse. Unfortunately, the federal government has gone out of its way to hinder our efforts. New Hampshire is not alone in this fight. Each state has a similar story to tell.
Liberty is defined by American Heritage as the ``condition of being free of restriction or control.'' It is clear that this definition does not relate to our current set of circumstances. The individual states are the engines of democracy, pushing new and exciting concepts which enrich the country as a whole. The states have been thwarted in their efforts to accomplish this. The time has come to reassert the authority of the Tenth Amendment and to return power back to the states and to the individual where it belongs. I believe that the Tenth Amendment Enforcement Act of 1996 will do this and strongly support its passage.
Very truly yours,
Stephen Merrill,Governor.
____
State of Texas,
Office of the Governor,
February 27, 1996.Hon. Ted Stevens,U.S. Senate Committee on Governmental Affairs, Washington,
DC.
Dear Senator Stevens: I strongly support your legislation, the Tenth Amendment Enforcement Act of 1996.
I applaud your efforts and hope to see this bill's passage this year.
Sincerely,George W. Bush.
____
State of South Carolina,
Office of the Attorney General,
Columbia, SC, March 14, 1996.Hon. Ted Stevens,U.S. Senate,Washington, DC.
Dear Senator Stevens: Please accept this letter as a pledge of support for the Tenth Amendment Enforcement Act of 1996, which you are introducing in the Senate. This is clearly one of the most important pieces of legislation to come before Congress this year.
As attorney general of South Carolina, I see first-hand the trouble that arises every time the federal government oversteps its boundaries and intrudes on states' rights. In fact, South Carolina can claim one of the most egregious examples of the federal government meddling in states' affairs with disastrous results.
Several years ago, when I was a solicitor in Charleston, S.C., a local hospital approached me with a plea: Help us do something about crack babies. In increasing numbers, pregnant women were abusing crack cocaine and giving birth to addicted newborns, who cry and shake uncontrollably, refuse to take food and, too often, ultimately die in intensive care.
Working with the hospital, I developed a program to aggressively confront pregnant women with the consequences of their drug use. Over five years, we presented all pregnant women who tested positive for cocaine with a choice: seek drug treatment or face arrest and jail time.
The program was undeniably successful--until the federal government intervened. Without offering any reasonable alternative solutions for saving these crack babies, federal officials came to Charleston and yowled about discrimination and privacy rights. When we refused to back down, they resorted to blackmail. They continued with the program.
So, now, once again, these crack babies cry unconsolably in Charleston--thanks to the federal government's intrusion where is has no business.
There are myriad other examples of ways the federal government ignores the 10th amendment--with effects that would be laughable if they didn't do so much harm. A sampling:
The Hunley. The federal government claims it owns the H.L. Hunley because it won the Civil War. However, the first submarine to sink another vessel lies on soil that belonged to the state of South Carolina even before the United States came into existence. Although common and maritime law, as well as state and federal statutes, point to South Carolina's ownership of the sunken submarine, the federal government's insistence on interfering in South Carolina affairs will cost all of the nation's taxpayers. Worse, its meddling in this matter has caused this war treasure to sit at the bottom of the Atlantic Ocean, rusting away, until the issue can be resolved with the federal government.
The Citadel. Traditionally, education has been a province of the states. And polls show that the majority of South Carolinians--both male and female--want the option of single-gender education offered by The Citadel. But the federal government thinks it knows what's best for South Carolinians and is trying to destroy an outstanding educational environment that South Carolinians overwhelmingly support.
Tobacco regulation. The Food and Drug Administration is trampling on states' turf with its new proposals for regulating cigarettes and chewing tobacco. Perhaps its silliest demand is that all advertising label cigarettes as
``a nicotine-delivery device.'' The fact is, Congress has not given the FDA power to regulate tobacco except in limited instances. Everything else is up to the states--at least, it's supposed to be. We know the laws in South Carolina, and we can enforce them without Washington's ``help.''
Garnishment of wages. The federal government is threatening to sue South Carolina for not complying with a federal law that authorizes the garnishment of wages of people who get behind on student loans. The problem is, the law contains no express provision applying its terms to state government. In fact, its language attempts to override state laws altogether. It provides no clear direction to state governments, but now we're faced with the possibility of defending South Carolina in a suit.
Motor Voter. South Carolina is one of seven states to challenge the ``Motor Voter'' law that allows people to register to vote when they obtain a driver's license. The issue is not easy and accessible registration; we already have that in place. The issues are the rights of sovereign states and unfunded federal mandates. The federal government demanded that South Carolina spend a million dollars to expand its voter registration program--without giving the state a dime. Then, when we began to implement the program, the Justice Department demanded that the state contact all the people who theoretically could have registered while we were in litigation. And it ordered a monthly report on our progress. This micro-management of state business by the federal government should be an outrage to all U.S. citizens.
In closing, the legislation you are proposing promises a meaningful solution to the federal government's continued disregard of the 10th Amendment. Count me in as an enthusiastic supporter of the bill, and let me know of anything I can do to promote its passage.
With kindest personal regards,
Charles Molony Condon,Attorney General.
____
State of Hawaii,
Department of the Attorney General,
Honolulu, HI, March 4, 1996.Hon. Ted Stevens,U.S. Senator, Chairman, Committee on Governmental Affairs,
Washington, DC.
Dear Senator Stevens: As the Attorney General for the State of Hawaii, I am writing to express my strong support for the Tenth Amendment Enforcement Act of 1996 (``TAEA'').
There have been far too many instances in which federal laws impede, interfere with, or nullify state legislative or administrative actions to the detriment of the interests of the people of Hawaii. This has occurred in large part because the federal courts have given much congressional legislation very broad preemptive scope, in many cases far beyond what it appears Congress itself intended. These preemption rulings have prevented the states from enforcing and implementing needed state policies in areas of traditional state concern, while at the same time failing to serve any significant federal interests.
In my fourteen month tenure as Attorney General of Hawaii, examples of important state policies which were frustrated by preemption rulings made by the federal courts include the striking down of Hawaii's employment disability discrimination laws as applied to airline pilots, see Aloha Islandair v. Tseu, Civ. No. 94-00937 (D. Haw. 1995), appeal filed, C.A. No. 95-16656 (9th Cir.), the overturning of state labor department discretion to bar preexisting condition limitations in state-wide employee health care plans, Foodland Super Market v. Hamada, Civ. No. 95-00537 (D. Haw. 1996), appeal filed (9th Cir.), and the nullification of a state law merely asking the State's two major newspapers, granted the privilege of doing business under a joint operating agreement with antitrust immunity, to turn over their tax returns to the state Attorney General, for subsequent disclosure to the United States Justice Department, in order to assess the economic consequences of, and the newspapers' continued need for, the antitrust immunity, see Hawaii Newspaper Agency v. Bronster, Civ. No. 95-00635 (D. Haw. 1996), appeal filed, C.A. No. 96-15142 (9th Cir.).
Enactment of the TAEA would be a significant step in reversing this disturbing trend, and would help restore state direction over areas of predominant, if not exclusive, state concern. Under the TAEA (Section 6), preemption would only occur when Congress has explicitly stated that a given area is preempted. This would curtail the potentially unlimited sweep of the ``implied preemption'' doctrine, and ideally result in a more narrowly construed ``express preemption.''
Although certain provisions of the TAEA may pose procedural difficulties, or raise some questions of interpretation, I support the overall effect of, and goals behind, the TAEA, and specifically endorse Section 6, which would do much to minimize unwarranted preemption of state actions. I would, however, broaden the language of Section 6(a) to clarify that federal law shall not preempt ``State or local government law, ordinance, regulation, or action,'' unless the statute explicitly declares an intent to preempt. This should ensure that all types of state action, including, for example, state discretionary administrative actions not commanded by any rule or statute, are not preempted without express congressional statement of intent to do so.
Thank you for your support of these critical state interests.
Very truly yours.
Margery S. Bronster,Attorney General.
____
State of Colorado, Department of Law, Office of the
Attorney General,
Denver, CO, March 15, 1996.Re Tenth Amendment Enforcement Act
Hon. Ted Stevens,U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Stevens: I am writing to express my strong support for the proposed Tenth Amendment Enforcement Act of 1996. The proposal is an important part of the continuing effort to return to the States matters which properly belong within their control.
Every state has a vast number of examples of federal laws and regulatory actions which have interfered with state powers and objectives. I will mention just a few examples from Colorado.
The federal government has been especially intrusive into state affairs in the area of the environment. The country faces many environmental problems, from our quality problems to hazardous waste cleanups. The states are diligently working to solve these problems, while taking into account local needs and concerns. Federal interference with state efforts often results in less protection to the environment and less experimentation by the states.
For example, in 1994, Colorado passed legislation which was intended to encourage businesses to perform voluntary audits of their environmental compliance and to promptly correct any violations found. In exchange for these voluntary efforts, state regulators will not impose penalties for the violations. This program, which will be of great benefit to the environment, is severely hampered by the federal Environmental Protection Agency's refusal to give the same assurances, that is, to refrain from prosecuting companies that voluntarily report and correct violations.
Another example of EPA hindering state efforts at experimentation concerns Colorado's attempts to put in place a unique water quality testing program. Colorado was one of the first states to attempt to employ a different biomonitoring test. Rather than encouraging these efforts, EPA continuously rejected Colorado's regulation implementing the program until the state rule was drafted to be word-for-word like a comparable federal regulation.
Another example in the area of the environment concerns air quality. Our state has been developing strategies to deal with air quality issues for years. But our problems and solutions are unique since Colorado is a high elevation state. A federal ``one size fits all'' approach does not work here. The Environmental Protection Agency's answer--a centralized emissions testing program--has created large implementation costs and reduced state flexibility in addressing pollution problems. Even though Colorado drivers will expend hundreds of millions of dollars in testing costs over the next few years, State officials have no practical alternatives if the program does not work or if better solutions are discovered.
Another example of federal intrusion into matters of state concern arose recently in Colorado with regard to the Medicaid program. As you know, Congress' 1993 change to the Hyde Amendment made federal funds available for abortions terminating pregnancies resulting from rape and incest, but did not require that States pay for any abortions. However, an official at the federal Health Care Financing Administration wrote a letter concluding that states must pay for the disputed abortions. Based solely upon this letter, and without any change in federal statutes or regulations, several federal appellate courts have required States to pay for these procedures, notwithstanding state laws to the contrary.
Colorado state officials are in an impossible dilemma because our state constitution forbids the use of public funds to pay for these procedures. To avoid violating the state constitution but still be consistent with federal mandates, state officials must either (1) withdraw from the Medicaid program and forfeit hundreds of millions of dollars in federal funds, thereby denying thousands of low income Colorado residents access to needed medical care or (2) face contempt citations from federal judges. This problem could have been avoided if federal officials clearly understood their own responsibility to protect state prerogatives.
The federal ``motor voter'' law presents a different type of intrusion. This law doesn't treat States just like the private sector, it actually imposes special burdens simply because they are States. As the Supreme Court recognized in Oregon v. Mitchell, 400 U.S. 112
(1970), it is peculiarly the right of States to establish the qualifications of voters in state elections. In the absence of a constitutional violation such as an outright denial of the right to vote, the States should have control over voter registration. This sort of unfunded mandate is simply not justified, particularly since even though this law unquestionably interferes with the States' internal affairs, it has not appreciably increased turnout at the polls.
The Tenth Amendment Enforcement Act helps turn the tide in favor of State prerogatives. Particularly noteworthy is the proposal's focus upon agency rulemaking. This is important in two respects. First, many of the most intrusive instances of federal preemption come not by virtue of congressionally-enacted legislation, but through extensive regulations promulgated by administrative agencies and expanding upon the congressional authorization.
Second, statutes seeking to limit subsequent congressional enactments are of limited efficacy, since each subsequent Congress is not bound by the acts of its predecessors. However, focusing upon the regulatory process does not present this problem. My only suggestion would be to include a review or sunset provision requiring every agency to ensure that all of its current rules comply with this new requirement by some date certain, or risk having them invalidated. This would ensure that agencies review the numerous existing federal regulations currently impinging upon Tenth Amendment values--which is, after all, what led to this proposal.
I appreciate your willingness to carry this proposal forward, and encourage you to continue your efforts to restore a proper balance in our federal system.
Sincerely,
Gale A. Norton,
Colorado Attorney General.
______
By Mr. WELLSTONE (for himself and Mr. Wyden):
S. 1630. A bill to prevent discrimination against victims of abuse in all lines of insurance; to the Committee on Labor and Human Resources.
the victims of abuse insurance protection act
Mr. WELLSTONE. Mr. President, I am very pleased to be joined by Senator Ron Wyden today in introducing the Victims of Abuse Insurance Protection Act, legislation that will outlaw discrimination by insurance companies against the victims of domestic violence in all lines of insurance.
With this legislation, we are trying to correct an abhorrent practice by many insurance companies--the denial of coverage to battered women. It is plain, old fashioned discrimination. It is profoundly unjust and wrong. And, it is the worst of blaming the victim. Denying women access to the insurance they require to foster their mobility out of an abusive situation must be stopped.
There are many stories of women who have been physically abused and have sought proper medical care only to be turned away by insurance companies who said they were too high risk to insure.
In Minnesota, three insurance companies denied an entire women's shelter insurance because, ``as a battered women's shelter, we were high risk.'' The Women's Shelter in Rochester, MN, was told that it was considered uninsurable because its employees are almost all battered women.
Another shelter in rural Minnesota purchased a car so that women and children in danger who were trying to leave an abusive situation could use this anonymous vehicle and thus the abuser could not track their automobile to find them. The shelter could not find a company to provide them with automobile insurance once the companies knew of the risks surrounding battered women.
A woman in Iowa named Sandra was denied life insurance after the company found out that she had been beaten up twice. In one incident, she had been so badly beaten by an ex-boyfriend that her cheekbones were splintered, and one of her eyes had to be put back in its socket. Her mother, Mary, was the one who originally applied for the life insurance policy, explaining
I didn't ask for a lot of coverage. I just wanted to apply for thousand dollar coverage, just enough that if something happened, God forbid, that we could at least bury her.
Mary was angry about the denial, so she wrote to State officials and the Iowa Insurance Commissioners Office tried to intervene on their behalf. In four separate letters, the insurance company officials stated they denied the coverage because of a history of assaults. In one letter they defended their decision by citing numerous documents which showed that people involved in domestic violence incidents are at a higher risk of death and injury than others, and, therefore, not a good risk.
There are so many stories about victims of domestic abuse being denied fire insurance, homeowners insurance, life insurance, and health insurance--denied because they were victims of a crime. Domestic violence is the leading cause of injury to women, more common than auto accidents, muggings, and rapes by a stranger combined. It is the No. 1 reason that women go to emergency rooms.
This bill goes a long way toward treating domestic violence as the crime that it is--not a voluntary risky behavior that can be easily changed and not as a preexisting condition. Insurance company policies that deny coverage to victims only serve to perpetuate the myth that victims are responsible for their abuse.
In order to address the practice of insurers using domestic violence as a basis for determining whom to cover and how much to charge with respect to health, life, disability, homeowners and auto insurance, this legislation prohibits insurance companies from discriminating against victims in any of the following ways: Denying or terminating insurance; limiting coverage or denying claims; charging higher premiums; or terminating health coverage for victims of abuse in situations where coverage was originally issued in the abuser's name, and acts of the abuser would cause the victim to lose coverage.
This legislation also keeps victims' information confidential by prohibiting insurers from improperly using, disclosing, or transferring abuse-related information for any purpose unrelated to the direct provision of health care services.
Mr. President, insurance companies should not be allowed to discriminate against anyone for being a victim of domestic violence. We may never know the full extent of the problem, but it is grossly unfair practice and should be prohibited.
I ask unanimous consent that the full text of the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the Record, as follows:
S. 1630
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Victims of Abuse Insurance Protection Act''.
SEC. 2. DEFINITIONS.
As used in this Act:
(1) The term ``abuse'' means the occurrence of one or more of the following acts between household or family (including in-laws or extended family) members, spouses or former spouses, or individuals engaged in or formerly engaged in a sexually intimate relationship:
(A) Attempting to cause or intentionally, knowingly, or recklessly causing another person bodily injury, physical harm, substantial emotional distress, psychological trauma, rape, sexual assault, or involuntary sexual intercourse.
(B) Engaging in a course of conduct or repeatedly committing acts toward another person, including following the person without proper authority and under circumstances that place the person in reasonable fear of bodily injury or physical harm.
(C) Subjecting another person to false imprisonment or kidnapping.
(D) Attempting to cause or intentionally, knowingly, or recklessly causing damage to property so as to intimidate or attempt to control the behavior of another person.
(2) The term ``abuse-related medical condition'' means a medical condition which arises in whole or in part out of an action or pattern of abuse.
(3) The term ``abuse status'' means the fact or perception that a person is, has been, or may be a subject of abuse, irrespective of whether the person has sustained abuse-related medical conditions or has incurred abuse-related claims.
(4) The term ``health benefit plan'' means any public or private entity or program that provides for payments for health care, including--
(A) a group health plan (as defined in section 607 of the Employee Retirement Income Security Act of 1974) or a multiple employer welfare arrangement (as defined in section 3(40) of such Act) that provides health benefits;
(B) any other health insurance arrangement, including any arrangement consisting of a hospital or medical expense incurred policy or certificate, hospital or medical service plan contract, or health maintenance organization subscriber contract;
(C) workers' compensation or similar insurance to the extent that it relates to workers' compensation medical benefits (as defined by the Federal Trade Commission); and
(D) automobile medical insurance to the extent that it relates to medical benefits (as defined by the Federal Trade Commission).
(5) The term ``health carrier'' means a person that contracts or offers to contract on a risk-assuming basis to provide, deliver, arrange for, pay for or reimburse any of the cost of health care services unless the person assuming the risk is accepting the risk from a duly licensed health carrier.
(6) The term ``insured'' means a party named on a policy, certificate, or health benefit plan as the person with legal rights to the benefits provided by the policy, certificate, or health benefit plan. For group insurance, such term includes a person who is a beneficiary covered by a group policy, certificate, or health benefit plan.
(7) The term ``insurer'' means any person, reciprocal exchange, interinsurer, Lloyds insurer, fraternal benefit society, or other legal entity engaged in the business of insurance, including agents, brokers, adjusters, and third party administrators. The term also includes health carriers, health benefit plans, and life, disability, and property and casualty insurers.
(8) The term ``policy'' means a contract of insurance, certificate, indemnity, suretyship, or annuity issued, proposed for issuance or intended for issuance by an insurer, including endorsements or riders to an insurance policy or contract.
(9) The term ``subject of abuse'' means a person to whom an act of abuse is directed, a person who has had prior or current injuries, illnesses, or disorders that resulted from abuse, or a person who seeks, may have sought, or should have sought medical or psychological treatment for abuse, protection, court-ordered protection, or shelter from abuse.
SEC. 3. DISCRIMINATORY ACTS PROHIBITED.
(a) In General.--No insurer or health carrier may, directly or indirectly, engage in any of the following acts or practices on the basis that the applicant or insured, or any person employed by the applicant or insured or with whom the applicant or insured is known to have a relationship or association, is, has been, or may be the subject of abuse:
(1) Denying, refusing to issue, renew or reissue, or canceling or otherwise terminating an insurance policy or health benefit plan.
(2) Restricting, excluding, or limiting insurance or health benefit plan coverage for losses as a result of abuse or denying a claim incurred by an insured as a result of abuse, except as otherwise permitted or required by State laws relating to life insurance beneficiaries.
(3) Adding a premium differential to any insurance policy or health benefit plan.
(4) Terminating health coverage for a subject of abuse because coverage was originally issued in the name of the abuser and the abuser has divorced, separated from, or lost custody of the subject of abuse or the abuser's coverage has terminated voluntarily or involuntarily and the subject of abuse does not qualify for extension of coverage under part 6 of subtitle B of title I or the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1161 et seq.) or 4980B of the Internal Revenue Code of 1986. Nothing in this paragraph prohibits the insurer from requiring the subject of abuse to pay the full premium for the subject's coverage under the health plan. The insurer may terminate group coverage after the continuation coverage required by this paragraph has been in force for 18 months if it offers conversion to an equivalent individual plan. The continuation of health coverage required by this paragraph shall be satisfied by any extension of coverage under part 6 of subtitle B of title I or the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1161 et seq.) or 4980B of the Internal Revenue Code of 1986 provided to a subject of abuse and is not intended to be in addition to any extension of coverage provided under part 6 of subtitle B of title I or the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1161 et seq.) or 4980B of the Internal Revenue Code of 1986.
(b) Use of Information.--
(1) In general.--No insurer may use, disclose, or transfer information relating to an applicant's or insured's abuse status or abuse-related medical condition or the applicant's or insured's status as a family member, employer or associate, person in a relationship with a subject of abuse for any purpose unrelated to the direct provision of health care services unless such use, disclosure, or transfer is required by an order of an entity with authority to regulate insurance or an order of a court of competent jurisdiction or by abuse reporting laws. Nothing in this paragraph shall be construed as limiting or precluding a subject of abuse from obtaining the subject's own medical records from an insurer.
(2) Authority of subject of abuse.--A subject of abuse, at the absolute discretion of the subject of abuse, may provide evidence of abuse to an insurer for the limited purpose of facilitating treatment of an abuse-related condition or demonstrating that a condition is abuse-related. Nothing in this paragraph shall be construed as authorizing an insurer or health carrier to disregard such provided evidence.
SEC. 4. REASONS FOR ADVERSE ACTIONS.
An insurer that takes any adverse action relating to any plan or policy of a subject of abuse, shall advise the subject of abuse applicant or insured of the specific reasons for the action in writing. Reference to general underwriting practices or guidelines does not constitute a specific reason.
SEC. 5. LIFE INSURANCE.
Nothing in this Act shall be construed to prohibit a life insurer from declining to issue a life insurance policy if the applicant or prospective owner of the policy is or would be designated as a beneficiary of the policy, and if--
(1) the applicant or prospective owner of the policy lacks an insurable interest in the insured; or
(2) the applicant or prospective owner of the policy is known, on the basis of police or court records, to have committed an act of abuse.
SEC. 6. SUBROGATION WITHOUT CONSENT PROHIBITED.
Except where the subject of abuse has already recovered damages, subrogation of claims resulting from abuse is prohibited with the informed consent of the subject of abuse.
SEC. 7. ENFORCEMENT.
(a) Federal Trade Commission.--The Federal Trade Commission shall have the power to examine and investigate any insurer to determine whether such insurer has been or is engaged in any act or practice prohibited by this Act. If the Federal Trade Commission determines an insurer has been or is engaged in any act or practice prohibited by this Act, the Commission may take action against such insurer by the issuance of a cease and desist order as if the insurer was in violation of section 5 of the Federal Trade Commission Act. Such cease and desist order may include any individual relief warranted under the circumstances, including temporary, preliminary, and permanent injunctive and compensatory relief.
(b) Private Cause of Action.--An applicant or insured claiming to be adversely affected by an act or practice of an insurer in violation of this Act may maintain an action against the insurer in a Federal or State court of original jurisdiction. Upon proof of such conduct by a preponderance of the evidence, the court may award appropriate relief, including temporary, preliminary, and permanent injunctive relief and compensatory and punitive damages, as well as the costs of suit and reasonable fees for the aggrieved individual's attorneys and expert witnesses. With respect to compensatory damages, the aggrieved individual may elect, at any time prior to the rendering of final judgment, to recover in lieu of actual damages, an award of statutory damages in the amount of $5,000 for each violation.
______
By Mr. PELL:
S. 1631. A bill to authorize the Secretary of Transportation to issue a certificate of documentation with appropriate endorsement for employment in the coastwise trade for the vessel Extreme, and for other purposes; to the Committee on Commerce, Science, and Transportation.
coastwise trading privileges legislation
Mr. PELL. Mr. President, I am introducing a bill today to direct that the vessel Extreme, official No. 1022278, be accorded coastwise trading privileges and be issued a coastwise endorsement under 46 U.S.C. 12106 through 12108.
The Extreme is 70.9 feet in length, 18 feet in breadth, has a depth of 10.8 feet, and is self-propelled.
The purpose of the legislation I am introducing is to allow the Extreme to engage in coastwise trade and fisheries of the United States. When the owners purchased the boat, they were unaware of the coastwise trade and fisheries restrictions of the Jones Act. They assumed that there would be no restrictions on engaging the vessel in such limited operation. Although the vessel was constructed in North Carolina, it was built for a foreign customer; thus it did not meet the coastwise license endorsement in the United States. Such documentation is mandatory to enable the owner to use the vessel for its intended purpose.
The owners of the Extreme are therefore seeking a waiver of the existing law because they wish to engage the vessel in limited commercial use. Their desired intentions for the vessel's use will not adversely affect the coastwise trade in U.S. waters. If they are granted this waiver, it is their intention to comply fully with U.S. documentation and safety requirements.
Mr. President, I ask unanimous consent that the text of the bill and my statement be printed in the Congressional Record.
There being no objection, the bill was ordered to be printed in the Record, as follows:
S. 1631
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. CERTIFICATE OF DOCUMENTATION.
Notwithstanding section 27 of the Merchant Marine Act, 1920
(46 U.S.C. App. 883), section 8 of the Act of June 19, 1886 (24 Stat. 81, chapter 421; 46 U.S.C. App. 289), and sections 12106 through 12108 of title 46, United States Code, the Secretary of Transportation may issue a certificate of documentation with appropriate endorsement for employment in the coastwise trade for the vessel EXTREME, United States official number 1022278.
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