April 26, 1995 CONGRESSIONAL RECORD — SENATE S5687

increases. We must act now. Either my

generation, the children of today’s

Medicare beneficiaries, will have greatly reduced opinions in the future, or

our children will incur unprecedented

tax increases.

Now, the President of the United

States has failed to address this imminent financial crisis. In fact, the Clinton administration predicts Medicare

expenditures will grow by a staggering

66 percent over the next 5 years. Yet,

despite this forecast and despite the

findings of the Medicare trustees and

the entitlement commission, the President failed in his fiscal year 1996 budget to recommend even one measure to

save Medicare.

We must act now. I expect that the

President will rely simply on tax increases to maintain the program in the

future, and that will work only for a

short time, because it fails to address

the underlying cause of the crisis. If

nothing is done, the Medicare portion

of FICA taxes would have to be raised

by 125 percent. That is more than $700

taken out of a $40,000 salary. That is intolerable. Structural improvement is

necessary if we are to protect and preserve Medicare in the long run. We can

and will protect and save Medicare if

we act now.

I will be taking time over the next

several days to come back to the floor

to continue this discussion of how best

this Congress is to save Medicare.

I yield the floor.

Mr. BRYAN addressed the Chair.

The PRESIDING OFFICER. The Senator from Nevada.

Mr. BRYAN. I thank the Chair.

Mr. President, I ask unanimous consent I be allowed to speak for a period

of time not to exceed 15 minutes as if

in morning business.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. BRYAN. Mr. President, we are

Mr. BRYAN. I thank the Chair.

WELFARE REFORM

fabout to be engaged in a debate in this

Chamber on welfare reform, an issue

which has failed the recipients, has

failed the American taxpayer, and on

which I think men and women of good

will on both sides of the political aisle

agree we must undertake some major

structural reforms. I think that we can

do so in a bipartisan fashion.

It was in this context during the recent April recess that I spent an entire

morning at one of the busiest welfare

offices in Las Vegas, the West Owens

District Welfare Office. May I say, Mr.

President, to my colleagues, it was an

educational opportunity, and if my colleagues have not previously done so, I

would urge each of them to avail themselves of this opportunity.

I first sat in on a welfare eligibility

interview, a process that lasts for approximately 1 hour. I observed this

process from the beginning to its conclusion.

In the Owens Welfare Office, eligibility workers sit in very small interview rooms, somewhat affectionately

referred to as the ‘‘chutes.’’ The eligibility worker has a desk literally surrounded on all sides with shelves full of

various forms and regulations that deal

with the nearly 20 different programs a

person in need of welfare assistance

may be eligible to receive. The client

comes into the interview room from

the reception area, sits across from the

eligibility worker’s desk, and the interview process begins.

Now the interview I observed, contrary to some of the stereotypical images that are often projected, was of a

young Caucasian woman. She was married, living with her husband and two

children. Her situation represents the

prototype of the kind of problem that

many people in America face who seek

welfare assistance.

She and her husband had moved to

Nevada from California, and currently

both are working. Although their jobs

pay above the minimum wage, they are

still unable to provide for their family

of four. Her employer structures her

workweek so that her hours do not exceed 20 hours per week, and so she is

ineligible for the medical benefits

which her employer pays for those who

work full time. One of her children has

a preexisting medical condition, so

medical care is a necessity. Her husband’s employer provides no medical

insurance. She also needs to pay for

the cost of child care, and her child

care cost is more than 50 percent of the

gross hourly wage that she makes each

hour.

Following this eligibility determination interview, I sat down to a very

frank discussion with eligibility workers concerning the areas of the welfare

system that they believe need reforming.

Let me say, Mr. President, I had anticipated the thrust of the comments

would be that you all in the Congress

need to provide more money; the system works. In effect, I thought I might

be hearing a defense of the status quo,

because these are eligibility workers,

the committed and dedicated people

who choose, in terms of their own educational background and their work experience, to provide care to others. So

these are highly compassionate, sensitive people who see the travail of life

before them every day.

To my great surprise, they are as enraged and as frustrated and as angry as

are the American people and each of us

who, as Members of Congress, have had

a chance to look at this system that

has failed so abysmally. Their suggestions and comments to us, I think, are

extremely worthwhile for us to consider. They are the people that are on

the front lines. They know the nuances

of the system. They know how the system is ripped off. And they also know

of its shortcomings in providing help to

those who all of us in this body would

acknowledge are in genuine need of

help.

As one of the underpinnings of the

welfare system, I think all of us can

agree, whether we position ourselves in

the political spectrum to the left of

center, to the right of center, or in the

middle, that we want a system that encourages people to work.

Most of us in America have a work

ethic that is part of our background. It

is part of what our parents shared with

us. And, for whatever measure of success we may have achieved in life, it is

the presence of that work ethic that

contributed to that success.

But a person who is on welfare, who

gets a job, who achieves that first rung

on the job ladder, oftentimes is confronted with a horrific choice. Immediately that individual may be cut off

from all medical care, all child care assistance, and that individual may, in

fact, find herself in a more disadvantageous position than before she attained

employment.

That part of our system, it seems to

me, ought to be fundamentally

changed. We ought to be encouraging

and rewarding those people like the

young applicant whose interview I observed, who is going out, getting a job,

and trying to help herself and her family.

Our present system provides all of

the disincentives by not providing

transitional help for her, so she can get

a little better job, that pays a little bit

more, so that she is able to provide for

herself and her family. That, it seems

to me, ought to be one of the structural incentives that any welfare reform ought to encourage.

The welfare system is replete with

conflicts, both indefensible and maddening. It is the sort of thing that encourages the American public to react

as it does when the word ‘‘welfare’’ is

mentioned.

I would like to talk about a few of

those, if I may, Mr. President.

One of the key policy problem areas

the eligibility workers brought to my

attention is how the term ‘‘household’’

is defined for determining the eligibility of individuals living together at

one residence for different welfare assistance programs.

One of the most egregious examples

of how policy and effect conflict is the

Food Stamp Program definition of

‘‘household.’’ Assume with me for the

moment that two families have the

same number of family members, and

the same income. Applying the ‘‘household’’ definition can mean a family

where everyone is a legal citizen is ineligible for food stamps, while a similar family with one member, who is an

illegal alien, is eligible for such assistance.

Let me be more specific.

Let us assume family A and family B

both have a total monthly household

income of $1,200, and each parent individually earns $600. Family A’s two

working parents are both legal citizens. Family B also has two working

parents, but one is an illegal alien.
S5688 CONGRESSIONAL RECORD — SENATE April 26, 1995

Under the present system, in determining eligibility, the eligibility worker looks at the household members,

and finds two working parents who are

legal citizens. The worker must count

family A’s full $1,200 monthly income.

Since family A’s total household income is more than the monthly gross

income allowed for food stamp eligibility, which is $1,066 for a two-person

family, family A is ineligible.

However, with family B, the eligibility worker looks at the household

members, and does not count the $600

income from the illegal alien parent.

Only the half of family B’s gross

monthly household income earned by

the legal citizen parent is counted.

Family B’s gross monthly household

income is only $600 a month, well under

the maximum allowed.

Family B, with the illegal alien, receives food stamp assistance. Although

technically the illegal alien member of

family B does not directly receive food

stamps, it is the member’s presence as

part of the household that allows for

this incongruous and indefensible result.

Why, I would ask, are we penalizing

the two-parent working family whose

members are legal citizens by denying

eligibility for food stamp assistance,

while allowing a two-parent working

family with an illegal alien family

member to receive assistance? Would it

not be fairer to determine a family’s

eligibility for assistance by looking at

the total income of the household rather than by who is in the household?

That is whether the individual parent

is illegal or a legal alien. This is a situation that must be corrected.

On the other hand, the Food Stamp

Program specifically requires welfare

offices to report any illegal alien who

tries to apply for benefits. However,

there is no similar requirement for the

Aid to Families with Dependent Children Program. Why? It makes no sense

as a matter of policy.

Throughout this country, people are

justifiably angry about illegal aliens

who have access to our Nation’s welfare system. We can and we ought to,

at the very least, require all of our welfare assistance programs to provide information and to report illegal aliens

to the Immigration Service. We have

all heard from INS that there is simply

not enough staff and funding available

to investigate every alleged illegal

alien, and that priority decisions must,

by necessity, be made. But we are creating an atmosphere where those who

test the welfare system feel relatively

safe in attempting to defraud it. If we

do not want illegal aliens to receive

benefits they are not entitled to, we

need to ensure adequate resources are

available to prevent it from occurring.

Another area of policy conflict occurs with young teenage parents. We

require young teenage parents under 20

years of age to participate in education

and training programs or lose their eligibility for AFDC assistance. But once

that same young parent turns 20, she

continues to be eligible for AFDC benefits, while no longer being required to

participate in any education or training program or to work.

So what kind of an incentive do we

create for those mothers not to participate in education or job training programs and not to work?

Millions of American women in this

country are single heads of households

who get up every morning, get their

kids ready to go to school, get themselves out in the job force, and yet we

provide no assistance for these women.

And the welfare system, as it is currently structured, provides assistance

for those who neither seek employment

nor participate in job training programs. Again, this is a policy conflict

we ought to correct.

The eligibility workers also pointed

out to me the difference in treatment

under the Food Stamp Program between disabled seniors living on limited incomes and homeless people. Disabled seniors who usually have a house

many times are eligible to receive only

$10 a month in food stamp benefits. I

was told by one eligibility worker that

she actually sees seniors with cases of

obvious malnutrition, something she

said would just break your heart, but

she is unable to provide more than $10

under the system the way it is currently structured.

On the other hand, a homeless person

gets expedited service, has benefits

available in 5 days, and is able to get

the full benefit of $115 a month. It

seems to me there is a dichotomy here

that is irreconcilable. In the one instance, everyone agrees the deserving

senior, who currently gets only $10 a

month, desperately needs more to survive, and yet she is not provided that

assistance.

Another example of a policy and an

effect in conflict occurs when an unmarried man and woman live together.

Each person is considered separately to

determine eligibility for food stamp

benefits, even if the woman is pregnant

with the man’s child. It is only after

their baby is born that the man and

woman are considered to have a child

in common, and are then treated as a

married couple, and are no longer eligible for separate individual benefits.

Also, couples who were married, who

divorce, but continue to live together

can be certified as separate persons for

food stamps as long as they do not

have a child in common. We ought to

be encouraging, as a matter of public

policy, people to be married and to

raise their children as a family. Allowing this aberration—two people living

together, previously married, divorced,

and now able to receive welfare assistance—clearly is a disincentive we must

correct.

Intentional welfare fraud can also result in a conflict between policy and effect. If a person receiving aid to families with dependent children benefits is

discovered to have committed an intentional welfare fraud, the fraud sanction is to reduce benefits by up to 10

percent or to eliminate the AFDC benefit. The same family may then be eligible for more food stamps and a higher

housing allowance because of the reduced AFDC cash benefit, a benefit

which was reduced as a consequence of

their intentional fraud perpetrated

upon the system.

That creates the situation in which

there is essentially no penalty for this

person, because the reduction in AFDC

cash benefits is likely to be offset by

increases in benefits from other programs.

Under the Food Stamp Program, the

penalty for fraud is either a 10- or 20-

percent reduction in benefits. However,

the reality of this situation is when

someone commits a fraud, the welfare

system basically ends up paying such

people to pay the system back for the

previous fraud from one program, by

increasing that person’s benefits from

other programs. It makes absolutely no

sense at all, Mr. President.

I have long been a supporter of

strengthening our ability to enforce

the payment of child support from irresponsible parents. It came as a surprise

to me to learn that the Food Stamp

Program, that I have long supported as

an essential part of our safety net program, does not require—does not require—its recipients to participate in

efforts to try to retrieve unpaid child

support payments. All Federal welfare

assistance programs must require its

recipients to cooperate in State and

Federal efforts to recover outstanding

child support payments. We need to use

every available option to bring delinquent parents back to the reality of

their financial responsibility for their

children.

The eligibility workers also brought

to the table suggestions for ways to

help eliminate these policy conflicts.

First, they suggest more standardization of eligibility requirements for all

welfare programs. This would particularly help to prevent a fraud penalty

reduction in benefits in one welfare

program resulting in an increase in

benefit eligibility in other programs,

the net effect of which is to provide no

net income loss or penalty for the individuals seeking to defraud the system.

They also suggest the penalty percentage reduction be made more flexible to allow for differences in the degree of frauds. Additionally, the eligibility workers would like to see fraud

penalties follow the person. By that,

Mr. President, we mean that under the

current system, an individual who is

identified as having perpetrated a fraud

in one State can collect and apply for

benefits in another State.

If a person commits a welfare program fraud in one State, and then

moves to another State, the person’s

fraud penalty from the first State

should follow the person to the second

State for collection.

Also, all welfare programs should require their recipients to participate in
April 26, 1995 CONGRESSIONAL RECORD — SENATE S5689

State and Federal efforts to collect delinquent child support. As I stated before, we need to avail ourselves of all

options available to ensure child support payment is enforced. When I reintroduced my child support enforcement legislation, my new bill will provide all welfare program recipients cooperate in child support enforcement

efforts, as a condition of their receipt

of assistance.

I want to reemphasize how much

each of us can learn from the practical

knowledge these frontline eligibility

workers have about how the welfare

system works, where the problems are,

and what the possible solutions are to

address them. They are not defenders

of the welfare system status quo. They

see both the positive and the negatives

of the current welfare system, and they

are just as frustrated with the welfare

system as are the public and Members

of Congress.

The welfare system must be substantially changed, and on that we can all

agree. We can all agree too that there

will always be people who will need the

safety net welfare assistance provides

at some time in their lives, and we

must ensure the net is there for them.

But as the Senate begins its deliberations on welfare reform, we need to

heed the lessons learned by these eligibility workers. As we make the necessary changes, let us always remember to work to ensure the current policy conflicts are not carried forward.

Let us not create more unintended consequences when we change the system.

COMMONSENSE PRODUCT LIABILI yield the floor.

ITY AND LEGAL REFORM ACT

fThe Senate continued with the consideration of the bill.

Mr. BROWN addressed the Chair.

The PRESIDING OFFICER (Mr.

DEWINE). The Senator from Colorado.

Mr. BROWN. Parliamentary inquiry.

What is the business before the Senate?

The PRESIDING OFFICER. The

pending business before the Senate is

amendment No. 599.

Mr. BROWN. Mr. President, I rise to

advocate the adoption of the Brown

amendment No. 599 that proposes to restore the sanctions against frivolous

actions of the Federal Rules of Civil

Procedure.

Most Americans would be shocked, I

believe, to find that the Congress has

acted to gut the restrictions against

bringing frivolous legal action. Many

will ask in this Chamber, ‘‘How is that

possible? Who in this Chamber would

possibly vote or even advocate doing

away with restrictions on bringing

frivolous actions in Federal courts?’’

And the answer is that the previous

Congress did it through neglect. The

last Congress took what I believe most

Americans will find to be an absolutely

outrageous act by neglect, by refusing

to consider the proposed changes to the

Federal Rules of Civil Procedure. Proposed changes in the Federal Rules of

Civil Procedure become effective automatically if Congress fails to act, and

that is what Congress did—fail to even

consider them.

There literally was not a bill brought

up in the Judiciary Committee which

allowed Congress to voice its concern

about the proposed changes to the Federal Rules of Civil Procedure.

To make matters worse, the changes

to rule 11 eliminated the deterrence

against frivolous lawsuits. Let me

quote the dissent from the Supreme

Court opinion with regard to this matter:

It takes no expert to know that a measure

which eliminates, rather than strengthens, a

deterrent to frivolous litigation is not what

the times demand.

Mr. President, that is true, and what

we attempt to do with this amendment

is simply restore to the Federal Rules

of Civil Procedure a form of sanctions

and admonitions against bringing frivolous litigation. I intend to ask for a

record vote on this, and it will be an

opportunity for Members of the Senate

to go on record: Do they favor our Federal courts being used to bring frivolous action, groundless action, or do

they oppose it? It is a very clear vote.

It is a very clear amendment. It is not

complicated.

I think a legitimate question at this

point is how in the world could a

change of this kind ever possibly have

taken place without someone standing

up and calling the attention of this

body to it and making sure it did not

happen?

Let me address that because I think

it is a relevant question and one to

which Members deserve an answer.

In transmitting the changes to the

Federal Rules of Civil Procedure, Chief

Justice Rehnquist, in his letter of April

22, 1993, said the following:

This transmittal does not necessarily indicate that the Court itself would have proposed these amendments in the form submitted.

For those in this Chamber who think

the fact this was transmitted to us by

the Supreme Court means they agreed

with it, they need to take a look at the

very transmittal document itself. The

Chief Justice makes it clear that this

does not involve, or necessarily indicate, the Court favors these changes.

Mr. President, I think it is important

to note that none other than Justice

White issued a separate statement with

regard to that, and I intend to go into

his statements voicing his concern

about the procedure, and the dissent

was filed by Justices Scalia in which

Justice Thomas joined and Justice

Souter joined as well.

I might mention that dissents with

regard to changes in civil procedure are

very unusual, and it is an exceptional

case in which anyone ever dissents because, frankly, as Justice White points

out, it is their view that there is some

constraint on the Court through questions of constitutionality and of what

role they should play in this activity,

which is basically a form of legislation.

Let me quote Justice White because I

think he explains this process in a

clear fashion:

28 U.S.C. Section 2072 empowers the Supreme Court to prescribe general rules of

practice and procedure and rules of evidence

for cases in the Federal courts, including

proceedings before magistrates and the court

of appeals. But the Court does not itself

draft and initially propose these rules. Section 2073 directs the Judicial Conference to

prescribe the procedures for proposing rules

mentioned in section 2072. The Conference

has been authorized to appoint committees

to propose such rules. These rules advisory

committees are to be made up of members of

the professional bar and trial and appellate

judges. The Conference is also to appoint a

standing committee on rules of practice and

evidence to review recommendations of the

advisory committees and to recommend to

the Conference such rules and amendments

to those rules as may be necessary to maintain consistency and otherwise promote the

interest of justice. Any rules approved by the

Conference were transmitted to the Supreme

Court which, in turn, transmits any rules

prescribed pursuant to section 2072 to the

Congress.

Mr. President, what he has outlined

quite clearly is that these changes in

the rules, while transmitted through

the Supreme Court, do not necessarily

represent the views of the Court—a

view echoed by the Chief Justice.

Further, Justice White states:

The Justices have hardly ever refused to

transmit the rules submitted by the Judicial

Conference. And the fact that aside from

Justices Black and Douglas it has been quite

rare for any Justice to dissent from transmitting such rules suggests that a sizable

majority of the 21 justices who sat during

this period concluded that Congress intended

them to have a rather limited role in the

rulemaking process. The vast majority, including myself, obviously have not explicitly

subscribed to the Black-Douglas view that

many of the rules proposed dealt with substantive matters the Constitution reserved

to Congress, and that in any event were prohibited by 2072 in injunctions against abridging, enlarging, or modifying substantive

rights.

Mr. President, I mention this because

I think it is critical as Members consider this subject to ask themselves

whether or not the changes that went

into effect automatically carried with

them an aura that we should respect

and honor and not question or even review. Justice White concludes in his

opinion that was transmitted stating

this:

In conclusion, I suggest it would be a mistake for the bench, the bar, or the Congress,

to assume that we are duplicating the functions performed by the standing committee

of the Judicial Conference with respect to

changes in the various rules which come to

us for transmittal.

Mr. President, I believe the record is

quite clear. It is a mistake for anyone

to come before this body and to suggest

that the fact that the Supreme Court

transmitted these proposed rules

changes means that they think they

are good rules changes. I think the

statement of Justice White, and particularly the dissent of the three Justices, which is almost unprecedented,