Statement Of Sen. Patrick Leahy
On Judiciary-Related Reconciliation Provisions
December 21, 2005

MR. PRESIDENT, It has been said that a great test of morality is what people do when they have power.  The fast-track budget reconciliation rules mean that the majority party can essentially do whatever it wants in a reconciliation bill if they act in lockstep.  The reason is simple.  Reconciliation debates in the Senate can only last 20 hours and the final version of the bill -- a reconciliation conference report -- only can be debated for 10 hours. 

The majority party can even orchestrate a single meeting with conferees and immediately gavel it over almost when it starts, doing everything behind-the-scenes with no consultation and without sharing drafts of even sweeping policy changes in proposed major laws.

They not only can do such things, they just did them.

But let me start at the beginning.  The President’s budget proposal for programs under the oversight of the Judiciary Committee, issued in February of this year, called for a user fee on the manufacture and importation of gunpowder and other explosives of two cents per pound.  The President requested that Congress enact these user fees -- some called it a tax -- to raise $600 million over the next five years.  Because of that White House proposal on gunpowder and other explosives, the budget resolution of the other body called for the Judiciary Committee to meet a target of $600 million.   

The Senate-passed budget resolution did not require any cuts to be made by the Judiciary Committee.  This is the usual approach for the Judiciary Committee since the Committee controls few, yet very important, mandatory spending programs.  For example, it is difficult to make significant reductions to mandatory programs, including: pensions for U.S. Judges; the Crime Victim’s Trust Fund; salaries of U.S. Marshals; the Radiation Exposure Compensation Trust Fund; the Copyright Owners’ Fund; the diversion control fee account of the Drug Enforcement Agency; border patrol salaries and expenses; the assets forfeiture fund for U.S. Marshals, and other sources.  It is also difficult to increase Patent and Trademark Office fees or Copyright Office fees since there is not a compelling reason to do so.

In the end, in order to comply with the budget resolution, the Judiciary Committee of the Senate and the Judiciary Committee of the other body were required to come up with $300 million in revenue or to make $300 million in cuts. 

The first casualty in this process was the White House proposal to tax gunpowder and other explosives.  There was little support by the majority party for even making half the President’s proposed increases in the gunpowder tax.  Many other alternatives were considered by the majority party.

Finally, a proposal was worked out in the Judiciary Committee that had my support, and the strong support of universities and many business leaders.  For example, the National Association of State Universities and Land-Grant Colleges, Motorola, Oracle, Sun Microsystems, Texas Instruments, Intel, Microsoft, Hewlett-Packard, Qualcomm, and many others agreed with a proposal to charge higher immigration fees for high-tech workers.  The House also included immigration fees in their proposal.

However, after an aborted conference meeting which started at 9 p.m. last Friday night, and ended a few minutes later, what has the Majority party proposed as a compromise on the immigration fees?  They came up with increasing fees on all citizens to get into federal courts and into bankruptcy court.  The bankruptcy fee increase raises some ironies.  The increase in fees for citizens trying to seek judicial relief narrows access to courts.

So we have gone from the President’s proposal to tax gunpowder and other explosives and mysteriously ended up with a tax on citizens to get into federal court and bankruptcy court.  Nevertheless, the majority party – as long as they are in lockstep together – has nearly absolute power in a reconciliation bill that enjoys only limited debate.  History will record what they have done with that power.

What is especially unfortunate is that the version of the reconciliation bill reported out by the Senate Judiciary Committee, and approved by the full Senate by unanimous consent to the Budget Reconciliation Act, was a bipartisan amendment offered by Senator Specter and myself to allocate the extra $278,000,000 in revenue provided from the Judiciary Committee markup on reconciliation to supplement funding that is demonstrably needed for the Bulletproof Vest Partnership Fund, programs authorized by the Justice For All Act, and a Copyright Royalty Judges Program.

The Judiciary Committee markup on its reconciliation title provided $278,000,000 more in revenue than was mandated by the Budget Resolution instructions. 

The Specter-Leahy Senate proposal – approved by the full Senate -- would have provided $60,000,000 over the next five years for such initiatives as the Bulletproof Vest Partnership Program, to help law enforcement agencies purchase or replace body armor for their rank-and-file officers. 

Recently, concerns over body armor safety surfaced when a Pennsylvania police officer was shot and critically wounded through his new vest outfitted with a material called Zylon, which is a registered trademark.  The Justice Department has since announced that Zylon fails to provide the intended level of ballistic resistance. 

Unfortunately, an estimated 200,000 vests outfitted with that material have been purchased – many with Bulletproof Vest Partnership funds – and now must be replaced.  Law enforcement agencies nationwide are struggling to find the funds necessary to replace defective vests with ones that will actually stop bullets and save lives.  Our Senate Judiciary provisions would have funded those efforts.  Unfortunately, the majority party dropped this language.

Our Senate Judiciary language – approved by the full Senate -- also provided more than $216,000,000 for programs authorized by the Justice For All Act of 2004, a landmark law that enhances protections for victims of Federal crimes, increases Federal resources available to State and local governments to combat crimes with DNA technology, and provides safeguards to prevent wrongful convictions and executions. 

The Senate Judiciary Committee language also would have funded training of criminal justice and medical personnel in the use of DNA evidence, including evidence for post-conviction DNA testing.  It would have promoted the use of DNA technology to identify missing persons.  With these funds, State and local authorities would have been better able to implement and enforce crime victims’ rights laws, including Federal victim and witness assistance programs. 

State and local governments would have been able to apply for grants to develop and implement victim notification systems to share information on criminal proceedings in a timely and efficient manner.  That language would have helped improve the quality of legal representation provided to both indigent defendants and the public in State capital cases.

Last, but certainly not least, our amendment provided $6,500,000 over five years for the Copyright Royalty Judges Program at the Library of Congress.  The Copyright Royalty Distribution Reform Act of 2004 created a new program in the Library to replace most of the current statutory responsibilities of the Copyright Arbitration Royalty Panels program.  The Copyright Royalty Judges Program was supposed to determine distributions of royalties that are disputed and set or adjust royalty rates, terms and conditions, with the exception of satellite carriers' compulsory licenses.  The Senate-passed language would have helped pay the salaries and related expenses of the three royalty judges and three administrative staff required by law to support this program.

Unfortunately, instead of raising more funds than we needed through widely supported increases in immigration fees and using them for these law-enforcement and other programs we are instead going to increase the cost of access to federal courts and not fund any of these other priorities.   

What may be the most troubling aspect of this abuse of power is that by substantially increasing fees to get into federal courts the majority party raised $253 million more in revenue than it needed to meet the reconciliation target.  That means that all the above priorities in the Senate-passed bill including bulletproof vests for law enforcement, use of DNA technology to identify missing persons, and better enforcement of crime victims’ rights laws could have been included at only slightly reduced levels of support. 

The Republican Congress has missed a great opportunity in this abuse of power.

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