S6108 CONGRESSIONAL RECORD — SENATE May 3, 1995

to sell in places like Japan, China, Germany, and elsewhere costs our corporations profits, our workers job opportunities, and our Nation revenues—all of

which weigh down our own economic

growth and add to our fiscal deficit.

Whether it is a requirement for

American firms to hire local agents to

conduct business; cumbersome inspection and customs procedures; bans on

the sale of products for dubious claims

of national sovereignty or some other

sort of prerogative, the simple fact is

that protected sanctuary markets

abroad are a major contributor to

America’s economic problems.

To explain this simply, I will use as

an example the well-known case of how

Japanese manufacturers sell things

like electronics in the United States at

such cheap prices, even when the yen is

at a record height. I am citing Japan

here, but it could be any other country

that has a ‘‘sanctuary’’ market. It is

well-known that many Japanese-made

products are cheaper in the United

States than in Japan. That is because

Japan’s closed market is a sanctuary

that effectively insulates producers

from competition, and allows them to

over-charge Japanese consumers, giving them enough of a profit margin at

home to sell below cost here. That

means American companies lose on

both ends. We can’t export into these

markets, and their subsidized exports

harm our domestic industries and cost

us jobs.

My trade policy is quite simple, in

addition to preserving the effectiveness

of America’s trade laws, I support

measures that will increase American

exports, and West Virginia exports specifically. Every $1 billion in exports

supports about 17,000 jobs. So it follows

that if we increase American exports,

we will create more jobs here in the

United States. And export related jobs

are, on average, better, higher paying

jobs. That is why I have worked so hard

to introduce West Virginia businesses

to foreign market opportunities.

While this bill will expose countries

with whom we have a trade deficit to

extra scrutiny by the Commerce Department, the Open Markets and Fair

Trade Act of 1995 is about market opportunities for American firms and especially markets for American industries with the most export potential

and which promote critical technologies. Most importantly, it instructs the Commerce Department to

look at markets which, if we can export there, offer the greatest employment opportunities for American workers.

America cannot afford to be a market for everyone else’s products when

we don’t get the same kind of access in

return. Our economy, and the global

economy, cannot sustain that kind of

imbalance. The American people will

only continue to support free trade if it

means we are able to sell American

products abroad as easily as Asian and

European and Latin American manufacturers have access to our shelves

and showrooms. While past negotiations should have made these points

perfectly clear, the Open markets and

Fair Trade Act of 1995 will erase any

doubts that may have lingered with

our trading partners.

Mr. President, I ask unanimous consent that additional material be printed in the RECORD.

There being no objection, the material was ordered to be printed in the

RECORD, as follows:

U.S. TRADE DEFICIT: TOP 10 COUNTRIES

[In billions of dollars]

Country

Trade deficit

1994 1993 1992

1. Japan .................................... 65.669 59.318 49.417 2. China .................................... 29.494 22.768 18.260 3. Canada ................................. 14.693 10.732 8.341 4. Germany ................................ 12.512 9.648 7.593 5. Taiwan .................................. 9.633 8.855 9.397 6. Italy ....................................... 7.518 6.764 3.602 7. Malaysia ................................ 7.012 4.504 3.898 8. Thailand ................................ 5.446 4.773 3.546 9. Venezuela .............................. 4.336 3.541 2.730 10. Nigeria ................................ 3.921 4.410 4.073

Subtotal for top 10 ...... 160.234 135.313 110.857 Total for the world .................... 151.414 115.611 84.881

By Mr. COCHRAN:

S.J. Res. 33. A bill proposing an

amendment to the Constitution of the

United States relative to the free exercise of religion; to the Committee on

the Judiciary.

CONSTITUTIONAL AMENDMENT JOINT

RESOLUTION

∑ Mr. COCHRAN. Mr. President, I am

pleased today to introduce a joint resolution proposing an amendment to the

Constitution that will restore to individuals the fundamental right to the

free exercise of their religious beliefs.

Although most of us would agree that

the Framers of the Constitution intended special protection for the ‘‘free

exercise of religion’’ when they included it in the Bill of Rights, several

judicial rulings, and other acts of governments at all levels, over the years

have brought that provision into question and resulted in much confusion.

I invite Senators to support this reaffirmation of fundamental, constitutional right.

ADDITIONAL COSPONSORS

∑

fS. 12

At the request of Mr. ROTH, the name

of the Senator from Mississippi [Mr.

COCHRAN] was added as a cosponsor of

S. 12, a bill to amend the Internal Revenue Code of 1986 to encourage savings

and investment through individual retirement accounts, and for other purposes.

S. 44

At the request of Mr. REID, the

names of the Senator from Hawaii [Mr.

INOUYE] and the Senator from New

Hampshire [Mr. GREGG] were added as

cosponsors of S. 44, a bill to amend

title 4 of the United States Code to

limit State taxation of certain pension

income.

S. 103

At the request of Mr. BAUCUS, the

names of the Senator from New Mexico

[Mr. BINGAMAN], the Senator from California [Mrs. BOXER], and the Senator

from Massachusetts [Mr. KERRY] were

added as cosponsors of S. 103, a bill entitled the ‘‘Lost Creek Land Exchange

Act of 1995.’’

S. 240

At the request of Mr. DOMENICI, the

name of the Senator from Maine [Mr.

COHEN] was added as a cosponsor of S.

240, a bill to amend the Securities Exchange Act of 1934 to establish a filing

deadline and to provide certain safeguards to ensure that the interests of

investors are well protected under the

implied private action provisions of the

Act.

S. 295

At the request of Mrs. KASSEBAUM,

the name of the Senator from Wyoming

[Mr. THOMAS] was added as a cosponsor

of S. 295, a bill to permit labor management cooperative efforts that improve

America’s economic competitiveness to

continue to thrive, and for other purposes.

S. 440

At the request of Mr. WARNER, the

names of the Senator from South Dakota [Mr. DASCHLE] and the Senator

from Mississippi [Mr. LOTT] were added

as cosponsors of S. 440, a bill to amend

title 23, United States Code, to provide

for the designation of the National

Highway System, and for other purposes.

S. 448

At the request of Mr. PRYOR, the

name of the Senator from Illinois [Mr.

SIMON] was added as a cosponsor of S.

448, a bill to amend section 118 of the

Internal Revenue Code of 1986 to provide for certain exceptions from rules

for determining contributions in aid of

construction, and for other purposes.

S. 476

At the request of Mr. NICKLES, the

name of the Senator from North Carolina [Mr. FAIRCLOTH] was added as a cosponsor of S. 476, a bill to amend title

23, United States Code, to eliminate

the national maximum speed limit, and

for other purposes.

S. 539

At the request of Mr. COCHRAN, the

name of the Senator from Idaho [Mr.

CRAIG] was added as a cosponsor of S.

539, a bill to amend the Internal Revenue Code of 1986 to provide a tax exemption for health risk pools.

S. 602

At the request of Mr. BROWN, the

name of the Senator from Pennsylvania [Mr. SPECTER] was added as a cosponsor of S. 602, a bill to amend the

NATO Participation Act of 1994 to expedite the transition to full membership in the North Atlantic Treaty Organization of European countries

emerging from Communist domination.

S. 607

At the request of Mr. WARNER, the

name of the Senator from Mississippi
May 3, 1995 CONGRESSIONAL RECORD — SENATE S6109

[Mr. LOTT] was added as a cosponsor of

S. 607, a bill to amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to

clarify the liability of certain recycling transactions, and for other purposes.

S. 615

At the request of Mr. AKAKA, the

names of the Senator from South Carolina [Mr. HOLLINGS] and the Senator

from Mississippi [Mr. LOTT] were added

as cosponsors of S. 615, a bill to amend

title 38, United States Code, to require

the Secretary of Veterans Affairs to

furnish outpatient medical services for

any disability of a former prisoner of

war.

S. 694

At the request of Mr. KYL, the name

of the Senator from Ohio [Mr. DEWINE]

was added as a cosponsor of S. 694, a

bill to prevent and punish crimes of

sexual and domestic violence, to

strengthen the rights of crime victims,

and for other purposes.

S. 722

At the request of Mr. DOMENICI, the

name of the Senator from Missouri

[Mr. ASHCROFT] was added as a cosponsor of S. 722, a bill to amend the Internal Revenue Code of 1986 to restructure

and replace the income tax system of

the United States to meet national priorities, and for other purposes.

SENATE RESOLUTION 97

At the request of Mr. THOMAS, the

names of the Senator from Indiana

[Mr. LUGAR] and the Senator from Massachusetts [Mr. KERRY] were added as

cosponsors of Senate Resolution 97, a

resolution expressing the sense of the

Senate with respect to peace and stability in the South China Sea.

SENATE RESOLUTION 103

At the request of Mr. DOMENICI, the

names of the Senator from New York

[Mr. D’AMATO] and the Senator from

North Carolina [Mr. HELMS] were added

as cosponsors of Senate Resolution 103,

a resolution to proclaim the week of

October 15 through October 21, 1995, as

National Character Counts Week, and

for other purposes.

SENATE RESOLUTION 113—TO AUTHORIZE REPRESENTATION BY

fSENATE LEGAL COUNSEL

Mr. GORTON (for Mr. DOLE, for himself, and Mr. DASCHLE) submitted the

following resolution; which was agreed

to:

S. RES. 113

Whereas, in the case of Committee for Judicial Review v. The United States Senate Committee on the Judiciary, Senator Orrin Hatch,

No. 1:95CV0770, pending in the United States

District Court for the District of Columbia,

the plaintiff has filed a complaint, seeking,

among other relief, to restrain the Committee on the Judiciary from conducting confirmation hearings on the nomination of

Peter C. Economus, who has been nominated

to be a United States District Judge for the

Northern District of Ohio;

Whereas, pursuant to sections 703(a) and

704(a)(1) of the Ethics in Government Act of

1978, 2 U.S.C. §§ 288b(a) and 288c(a)(1)(1994),

the Senate may direct its counsel to defend

committees and Members of the Senate in

civil actions relating to their official responsibilities: Now, therefore, be it

Resolved, That the Senate Legal Counsel is

authorized to represent the Committee on

the Judiciary, its chairman, Senator Orrin

G. Hatch, and the other members of the

Committee on the Judiciary in the case of

Committee for Judicial Review v. The United

States Senate Committee on the Judiciary, Senator Orrin Hatch.

SENATE RESOLUTION 114—TO

REFER S. 740 TO THE U.S. COURT

fOF FEDERAL CLAIMS

Mr. GORTON (for Mr. HATCH) submitted the following resolution; which was

agreed to:

S. RES. 114

Resolved, That the bill S. 740 entitled ‘‘A

bill for the relief of Inslaw, Inc., and William

A. Hamilton and Nancy Burke Hamilton’’

now pending in the Senate, together with all

the accompanying papers, is referred to the

chief judge of the United States Court of

Federal Claims. The chief judge shall proceed with the same in accordance with the

provisions of sections 1492 and 2509 of title 28,

United States Code, and report thereon to

the Senate, at the earliest practicable date,

giving such findings of fact and conclusions

thereon as shall be sufficient to inform the

Congress of the nature and character of the

demand as a claim, legal or equitable,

against the United States or a gratuity and

the amount, if any, legally or equitably due

to the claimants from the United States.

AMENDMENTS SUBMITTED

fTHE COMMON SENSE LEGAL

STANDARDS REFORM ACT OF

1995 COMMON SENSE PRODUCT

LIABILITY REFORM ACT OF 1995

DODD AMENDMENT NO. 624

(Ordered to lie on the table.)

Mr. DODD submitted an amendment

intended to be proposed by him to the

bill (H.R. 956) to establish legal standards and procedures for product liability litigation, and for other purposes;

as follows:

At the appropriate place insert the following:

SEC. . UNIFORM STANDARDS FOR AWARD OF

PUNITIVE DAMAGES.

(a) GENERAL RULE.—Notwithstanding any

other provision of this Act, punitive damages

may, to the extent permitted by applicable

State law, be awarded against a defendant in

an action that is subject to this Act if the

claimant establishes by clear and convincing

evidence that the harm that is the subject of

the action was the result of conduct that was

carried out by the defendant with a conscious, flagrant indifference to the safety of

others.

(b) Bifurcation and Judicial Determination.—

(1) In general.—Notwithstanding any other

provision of this Act, in an action that is

subject to this Act in which punitive damages are sought, the trier of fact shall determine, concurrent with all other issues presented, whether such damages shall be allowed. If such damages are allowed, a separate proceeding shall be conducted by the

court to determine the amount of such damages to be awarded.

(2) Admissible evidence.—

(A) Inadmissibility of evidence relative

only to a claim of punitive damages in a bifurcated proceeding.—Notwithstanding any

other provision of this Act, in any proceeding to determine whether the claimant in an

action that is subject to this Act may be

awarded compensatory damages and punitive

damages, evidence of the defendant’s financial condition and other evidence bearing on

the amount of punitive damages shall not be

admissible unless the evidence is admissible

for a purpose other than for determining the

amount of punitive damages.

(B) PROCEEDING WITH RESPECT TO PUNITIVE

DAMAGES.—Evidence that is admissible in a

separate proceeding conducted under paragraph (1) shall include evidence that bears on

the factors listed in paragraph (3).

(3) FACTORS.—Notwithstanding any other

provision of this Act, in determining the

amount of punitive damages awarded in an

action that is subject to this Act, the court

shall consider the following factors:

(A) The likelihood that serious harm would

arise from the misconduct of the defendant

in question.

(B) The degree of the awareness of the defendant in question of that likelihood.

(C) The profitability of the misconduct to

the defendant in question.

(D) The duration of the misconduct and

any concealment of the conduct by the defendant in question.

(E) The attitude and conduct of the defendant in question upon the discovery of the

misconduct and whether the misconduct has

terminated.

(F) The financial condition of the defendant in question.

(G) The total effect of other punishment

imposed or likely to be imposed upon the defendant in question as a result of the misconduct, including any awards of punitive or

exemplary damages to persons similarly situated to the claimant and the severity of

criminal penalties to which the defendant in

question has been or is likely to be subjected.

(H) Any other factor that the court determines to be appropriate.

(4) REASONS FOR SETTING AWARD AMOUNT.—

(A) IN GENERAL.—Notwithstanding any

other provision of this Act, with respect to

an award of punitive damages in an action

that is subject to this Act, in findings of fact

and conclusions of law issued by the court,

the court shall clearly state the reasons of

the court for setting the amount of the

award. The statements referred to in the preceding sentence shall demonstrate the consideration of the factors listed in subparagraphs (A) through (G) of paragraph (3). If

the court considers a factor under subparagraph (H) of paragraph (3), the court shall

state the effect of the consideration of the

factor on setting the amount of the award.

(B) REVIEW OF DETERMINATION OF AWARD

AMOUNT.—The determination of the amount

of the award shall only be reviewed by a

court as a factual finding and shall not be

set aside by a court unless the court determines that the amount of the award is clearly erroneous.

DODD AMENDMENT NO. 625

(Ordered to lie on the table.)

Mr. DODD submitted an amendment

intended to be proposed by him to

amendment No. 596 proposed by Mr.

GORTON to the bill H.R. 956, supra; as

follows: