Cong r essional RecordUnited States th

ofAmerica PROCEEDINGS AND DEBATES OF THE 95 CONGRESS, SECOND SESSION

HOUSE OF REPRESENTATIVES-Monday, January 30, 1978The House met at 12 o'clock noon.The Chaplain, Rev. Edward G. Latch,

D.D., offered the following prayer:

He who would love life and see gooddays, let him turn away from evil anddo right; let him seek peace and pursueit.-I Peter 3: 10, 11.

Almighty God and Father of us all,we come to Thee acknowledging our de-pendence upon Thee and offering untoThee the devotion of our hearts. Maythe consciousness of Thy presencestrengthen us by lifting us out of anydiscouragement we may have and bymaking us ready for the duties of thesedemanding days. Grant unto us wisdomand courage to fulfill the high positionsof political prestige which are ours asleaders of our Nation. Let us not loseheart in our endeavors to work for thegood of our people and the welfare ofthe whole human family.

Continue to bless our President, ourSpeaker, and Members of this House.Give them peace in their hearts and hap-piness in their homes as they seek tolead our Nation in the ways of justice,righteousness, and good will. Amen.

CALL OF THE HOUSE

Mr. ROUSSELOT. Mr. Speaker, onthe basis of rule I, clause 1, I make thepoint of order that a quorum is notpresent.

The SPEAKER. Evidently a quorumis not present.

Mr. WRIGHT. Mr. Speaker, I movea call of the House.

A call of the House was ordered.The call was taken by electronic de-

vice, and the following Members failedto respond:

AddabboAlexanderAmbroAnderson, Ill.Andrews, N.C.Andrews,

N. Dak.ApplegateArcherArmstrongAshleyAspinAuColnBeard, R.I.BevillBiaggiBinghamBoggsBolandBoilingBrademasBurke, Calif.Burton, JohnCederbergChappellChisholm

[Roll No. 17]CochranCohenConyersCotterD'AmoursDellumsDentDerwinskiDiggsDornanDrinanEnglishErlenbornFloodFoleyFraserGephardtGoldwaterGonzalezGuyerHagedornHarringtonHarshaHecklerHightowerHillis

CXXIV-81-Part 2

HollenbeckHoltzmanJeffordsKastenKostmayerKruegerLehmanLong, Md.McCloskeyMcDadeMcKinneyMaguireMannMeedsMetcalfeMikvaMoorhead,

Calif.Moorhead, Pa.MossMurphy. I1!.Murphy. Pa.OttingerPepperPursellQuie

ReussRisenhcoverRodinoRoncalioRoybalRuppeRyanScheuerSebeliusSelberling

ShipleyShusterSiskSkubitzSt GermainSteedStrattonTeagueTucker

Vander JagtWalshWatkinsWaxmanWigginsWilson, C. H.Wilson, Tex.Wydlerlablocki

Van Deerlin Zeferetti

The SPEAKER. On this rollcall, 326Members have recorded their presenceby electronic device, a quorum.

By unanimous consent, further pro-ceedings under the call were dispensedwith.

THE JOURNAL

The SPEAKER. The Chair has ex-amined the Journal of the last day's pro-ceedings and announces to the Househis approval thereof.

Without objection, the Journal standsapproved.

There was no objection.

MESSAGE FROM THE PRESIDENT

A message in writing from the Presi-dent of the United States was communi-cated to the House by Mr. Chirdon, oneof his secretaries.

MESSAGE FROM THE SENATE

A message from the Senate, by Mr.Sparrow, one of its clerks, announcedthat the Senate had passed withoutamendment bills of the House of thefollowing titles:

H.R. 2960. An act to authorize the Secre-tary of the Interior to memorialize the fifty-six signers of the Declaration of Independ-ence in Constitution Gardens in the Districtof Columbia; and

H.R. 5054. An act to repeal section 3306of title 5, United States Code, to eliminatethe requirement of apportionment of ap-pointments in the departmental service inthe District of Columbia.

The message also announced that theSenate had passed a bill of the followingtitle, in which the concurrence of theHouse is requested:

S. 2220. An act to authorize the Secretaryof the Treasury to designate an AssistantSecretary to serve in his place as a memberof the Library of Congress Trust Fund Board.

The message also announced that theVice President, pursuant to section 1024of title 15, United States Code, appointedMr. MCGOVERN to fill the vacancy of themajority party membership on the JointEconomic Committee.

LEGISLATIVE PROGRAM

(Mr. UDALL asked and was given pe.mission to address the House for 1 milute.)

Mr. UDALL. Mr. Speaker, the first or-der of business scheduled today wasmotion I was planning to make to suspend the rules and pass the bill, S.2076.

I just learned a few minutes ago thatanother committee, the great Commit-tee on Education and Labor, has somequestions about the bill and has a juris-dictional problem. In order to see if wecan resolve this matter, I am not goingto make that motion today, but we hopeto have it resolved and bring the billback on the floor at a later date.

RED CARNATIONS DENOTE CELE-BRATION OF McKINLEY'S BIRTH-DAY

(Mr. REGULA asked and was givenpermission to address the House for 1minute and to revise and extend his re-marks.)

Mr. REGULA. Mr. Speaker, today wenote the birthday of William McKinley,25th President of the United States andthe last Civil War veteran to be electedas President, by wearing the red carna-tion, the State flower of Ohio, and agreat favorite of the martyred Presi-dent.

William McKinley, who ably servedthe 16th District of Ohio for 13 yearsas a Member of this body, including 2years as chairman of the Ways andMeans Committee, had a distinguishedcareer as a noted trial lawyer, Con-gressman, Governor of Ohio, and Presi-dent from 1897 to 1901. He led the Na-tion through the Spanish-American Warand the acquisition of vast overseasterritories.

President McKinley shared a commonpolitical goal with our distinguishedSpeaker. His front porch campaign forreelection in 1900 emphasized his slo-gan, "Good work, good wages, goodmoney and a full dinner pail." Accord-ing to Congressional Insight in its Jan-uary 13 publicaticn this year, SpeakerTIP O'NEILL'S own priorities for theHouse will emphasize "work and wages."I would add that I hope our leader alsoadopts the third part of McKinley'splatform and supports an anti-inflation-ary budget resolution that will maintain"good money" for the people of thisNation.

William McKinley was the firstPresident to recognize the role of the

1275

CONGRESSIONAL RECORD- SENATE January 30, 1978to guess what kind of changes the prisonerwill make, and I am not gifted with the powerof prophecy. The caseworkers, operating as ateam, in the various prisons have impressedme with their knowledgeability. They knowprisoners try to fool them and they are hardto fool. I would rather the decision weremade by the caseworker team after observingthe prisoner in the institution than for meto make it in advance, as a binding decisionon my part. I think the present Parole Com-mission does not give enough weight to theopinions of caseworkers and has been toorigidly bound to its guidelines. I think theyhave tended to release prisoners on a sliderule basis, rather than a subjective humananalysis of the prisoner and his behavior.I realize that subjective judgments are notin fashion presently among many people, butit has been my experience that the only wayto predict human behavior is subjectively. Itmay not.be a perfect process, but it is theonly way. This is not to imply that some ob-jective standards are not useful in makinga subjective judgment.

In my G.A.O. interview I expressed someviews recommending change in the presentguideline system of the Parole Commission.On the other hand, I strongly urged that theCommission not be abolished and that wenot substitute a system of relatively shortsentences without parole for a system oflonger sentences which assume that at somepoint, assuming good behavior predictive offurther future good behavior, there would bea release on parole prior to the end of thesentence in a great majority of cases. I admitthat the present system can be criticized. Ibelieve, however, that there is more to criti-cize in what I perceive as the proposed newsystem.

I have read widely on this subject sincebeing appointed almost five years ago, be-cause I understand the seriousness of my taskin sentencing people. I am a strong believerin probation for those who are entitled to it,and the probationers of this court have suc-ceeded in over 95 percent of the cases sinceI have been on the court in completing theirprobationary terms successfully. In fact, therecord of the court for 1964 through 1974 was98 percent successful completion! I havenever refused probation to a defendant whohad a favorable recommendation from aprobation officer of this court because of thetremendous success we have had, as indicatedby these figures. On the other hand, I haveimposed some very long sentences in appro-priate cases. There are five judges, includingone senior judge, of this court imposing crim-inal sentences. Of the five, over the past twoyears I have averaged longer sentences thanany other judge. The disparity is not great,and all of us are around the national median,but I do wish to point out that I am not"soft" on the subject. I believe in protectingthe public. I also know from experience thatmany people convicted in my court can be re-habilitated, and know of specific examplesof those who have. This is true especially ofthose placed on probation but is also true ofmany of those sent to prison.

In other words, I have not completelygiven up on rehabilitation, athough I amnot blind to the fact that there are somepeople who simply need to be "warehoused"and kept out of society. I have identifiedthese "warehouse" cases and have given themvery long sentences, which raises my averageand makes me appear to be the hardest sen-tencing judge on this court.

I say this by way of background. I believethere is rehabilitative benefit in keeping aman on parole after he is released fromprison. I also believe there is benefit to soci-ety by keeping him in fear of having to goback. He is less likely to commit a crime ifhe is under supervision and afraid of hav-ing to go back. In other words. I wouldrather see a man get a 15-year sentence with

release on parole after five years and 10years continuous supervision than to seehim get a five-year sentence, all of which hemust serve, but with no continuous super-vision after his release. I use these figuresonly for illustration. It is my fear that thesentencing commission will put such stric-tures upon us that the senences which willactually result from this new system will berelatively short and the beneficial aspects ofparole in the present system will be virtuallyeliminated.

I hope I have understood the article in-correctly. If I have, then this part of myletter may be ignored. If, on the other hand.I have understood it correctly, I do appealfor a reconsideration of the basic approach'to the parole system contemplated by thisbill.

Sincerely,J. FOY GUIN, Jr.

P.S.-Not only do I plead that the 120-daysentence reduction provision be retained-Istrongly urge that the Congress permit thisto be extended to judgments of modificationreducing a sentence to probation or to a sen-tence including probation, such as a splitsentence. The Supreme Court has held twicethat a judge cannot modify a sentence so asto impose probation. On reconsideration of asentence the judge should have the full pan-oply of the options that he has initially, in-cluding the right to impose probation inplace of custodial sentence or to impose asplit sentence, which is a combination ofcustodial sentence with probation.

Mr. ALLEN. Mr. President, I call at-tention to one paragraph which has ref-erence to the amendment that I haveoffered,

Not only do I plead that the 120-day sen-tence reduction provision be retained-Istrongly urge that the Congress permit thisto be extended to judgments of modificationreducing a sentence to probation or to asentence including probation, such as a splitsentence. The Supreme Court has held twicethat a judge cannot modify a sentence so asto impose probation. On reconsideration of asentence the judge should have the full pan-oply of the options that he has initially,including the right to impose probation inplace of custodial sentence or to impose asplit sentence, which Is a combination ofcustodial sentence with probation.

This amendment would allow thecourt to reduce a sentence within 120days after the sentence is imposed, un-less a notice of appeal has been filedfor review of the sentence under section3725.

I have discussed this matter with thedistinguished manager of the bill, and Iunderstand that he is agreeable to ac-cepting the amendment.

Mr. KENNEDY. Mr. President, thiswould restore current law. The reasonit was dropped is because of the guide-lines, which give us a sense of predicta-bility and certainty not found today. Theability to appeal if the sentence goesbelow or above the guidelines and to givethe right of appeal even within theguidelines if the guidelines have beenwrongfully applied, make a motion toreduce unnecessary.

Now, the Senator would permit up to120 days for reduction by the same sen-tencing officer. As I understand, this isso only if there has not been a filing foran appeal.

Mr. ALLEN. That is correct.Mr. KENNEDY. I have no objection

to it. It is an additional protection forthe defendant, but I do not think-

given the fact that we will have guide-lines-that it is really necessary. But Ihave no objection to the amendment.

Mr. THURMOND. Mr. President, theamendment is acceptable to us.

The PRESIDING OFFICER. The ques-tion is on agreeing to the amendment ofthe Senator from Alabama.

The amendment was agreed to.UP AMENDMENT NO. 1159

Mr. HATCH. Mr. President, I call upan unprinted amendment and askunanimous consent that it be in order tobe considered at this time.

The PRESIDING OFFICER. Withoutobjection it is so ordered. The clerk willreport.

The legislative clerk read as follows:The Senator from Utah (Mr. HATCH), for

himself and Mr. HELMS, proposes an un-printed amendment numbered 1159.

Mr. HATCH. Mr. President, I askunanimous consent that further readingof the amendment be dispensed with.

The PRESIDING OFFICER. Withoutobjection, it is so ordered.

The amendment is as follows:On page 171, line 27, after the semicolon

add the following language:"and shall include non-profit means of masscommunication; ".

Mr. HATCH. Mr. President, what thisamendment does is close one of the loop-holes of the obscenity part of the statute.Under the definition of "commerciallydisseminate" it means to disseminate forprofit. We would add at this point thatit should include nonprofit means ofmass communications as well, which willclose one of the loopholes we were ableto find today.

I understand both the majority man-ager and the minority manager will ac-cept the amendment.

Mr. KENNEDY. We have no objection.Obviously, the definition of "commer-cially disseminate" should apply to boththe profit and nonprofit networks.

Mr. THURMOND. We have no objec-tion.

The PRESIDING OFFICER. The ques-tion is on agreeing to the amendment ofthe Senator from Utah.

The amendment was agreed to.The PRESIDING OFFICER. The Sen-

ator from Alabama.Mr. ALLEN. I would appreciate if the

distinguished manager of the bill wouldengage in a short colloquy with respectto the introduction of an amendment Ihave prepared. I would like to inquire ofthe distinguished manager of the billinasmuch as the bill in its very first sec-tion here, section 101, amends title 18,and the amendment is, in effect, a repealbecause it says "title 18 of the UnitedStates Code which may be cited as '18U.S.C. -' or as 'Federal Criminal Code-,' is amended to read as follows," sothat any provision of title 18, which isthe section on Federal crimes, if everysingle provision of title 18 is repealed,except to the extent that it is carried for-ward in S. 1437, because title 18 will beno more except as it is brought forwardin this bill, I would like to ask the distin-guished manager of the bill a question.

I think it is very important that thisinformation be elicited. I would like to

1366

January 30, 1978 CONGRESSIONAL RECORD- SENATE

ask the manager of the bill how manyseparate acts embodied in title 18 weredropped from S. 1437, and if the Sena-tor does have that information pleasesupply the identification of the actswhich were not carried forward inS. 1437?

I might state I have had called to myattention the fact that the Logan Act,which prevents private citizens fromcarrying on foreign relations negotia-tions with foreign countries is droppedfrom S. 1437, it is not carried forward.

Since that is an important omissionI am just wondering how many otheromissions there are.

The PRESIDING OFFICER. The Sen-ator from Massachusetts.

Mr. KENNEDY. Mr. President, the bestestimate we have is that approximately10 to 12 crimes are repealed, archaicprovisions such as interfering with agovernment carrier pigeon, seducing afemale passenger aboard a ship, theLogan Act, and so forth.

Mr. ALLEN. The Senator thinks thatought to be permitted?

Mr. KENNEDY. Is the Senator offeringan amendment to restore it?

[Laughter].This is the type of section eliminated.I want to point out that with regard

to the Logan Act, that was agreed to betaken out of S. 1 and the legislationwhich preceded S. 1; it is not a part ofthe agreement I entered into with Sena-tor McClellan.

It was urged upon us by the JusticeDepartment. It has been on the bookssince 1799, and they urged us to strikeit. I think it should be stricken.

Mr. ALLEN. Would the Senator bekind enough for the Record to insert alist of the acts-

Mr. KENNEDY. Yes.Mr. ALLEN. A list of the provisions of

title 18 that were not brought forward inS. 1437?

Mr. KENNEDY. I will do so as soon asa comprehensive list can be prepared.

Mr. President, before proceeding fur-ther, I wish to comment further on theamendment of Mr. HUDDLESTON'S, agreedto last week which deals with the witnessprotectio program.

The amendment would permit a plain-tiff in a civil suit brought against a re-located witness for a cause of action aris-ing before the witness was relocated touse the Attorney General to serve proc-ess on the witness so that the suit cango forward. In addition, if a judgmentresults and the Attorney General deter-mines that reasonable efforts to satisfythe judgment are not being made by thewitness, then the Attorney General, inhis discretion after weighing the dan-ger that could result to the witness, mayrelease his new name and location tothe plaintiff for collection purposes.

The amendment seeks to draw a bal-ance between the importance to law en-forcement of the witness relocation pro-gram and the need to protect otherwiseinnocent civil litigants who are left withno one to sue. The Department of Jus-tice wishes to protect those in its re-location program while at the same time

not wishing to have the program mis-used by the relocated witnesses to avoidpaying their just debts.

This amendment draws the balanceadequately. It permits the plaintiff toserve process against the witness whocan then adequately defend himselfwhile still shielded under the relocationprogram. When it comes to satisfyingthe judgment, if one is rendered againstthe relocated person, he would be ex-pected to behave like any other citizen.Only if he fails to make reasonable ef-forts to satisfy the judgment will theAttorney General consider further ac-tion. Here is the heart of the amend-ment. It grants discretion to the At-torney General to release the identityand location of the witness to the plain-tiff so that he may collect from a recal-citrant judgment debtor.

However, that discretion is to be ex-ercised only after an examination of therisks to the life and safety of the re-located person. If the risk of retaliatingaction is too great then the identity mustremain secret; quite bluntly the rightto property and money cannot be raisedabove the right to life. Moreover, if therelocated witness is penniless there isno reason to release his new name andendanger him. The Attorney Generalmust take care that those seeking to killa witness who has testified against themcannot pursue a sham civil action tojudgment as a vehicle for finding thewitness.

If the danger has passed, and if thesafety of the witness can be assured, thenit is expected that the discretion of theAttorney General will be exercised infavor of release. The threat of releaseof the new identity is also a powerfulweapon for the Attorney General touse to persuade the judgment debtor tomake reasonable efforts to satisfy thejudgment.

As long as the ultimate decision to re-lease the new identity is left to the At-torney General's discretion to be exer-cised in terms of the ultimate safety ofthe relocated person, then the amend-ment is acceptable.

I would also like to clarify the recordas to the application of the extortionamendment, No. 1085, passed by theSenate on January 19. That amendmentmakes clear that "the pendency of alabor dispute, the outcome of whichcould result in the obtaining of employ-ment benefits by" an individual com-mitting an act of damage is not, in andof itself, probative of extortion. Theamendment is intended to avoid an im-plication that if violence occurs inci-dental to a labor dispute, the violencecould be attributed to the union as atactic for extortion where there was noevidence that that was the purpose ofthe violent conduct. The amendmentmeans that more than the mere coinci-dence of a labor dispute and violence isneeded to show that violence was in-tended to be a means of extorting any-thing from the employer. A case of ex-tortion could not be proved in a labordispute situation just because fighting orother violence occurs-this is the intentof the amendment.

In fact, the Government would noteven attempt to prosecute as extortionmost cases of violence associated with alabor dispute. The amendment is arecognition that tempers often flare inlabor dispute situations. In a case wherethere was evidence that there was anagreement among people involved in thelabor dispute to use violence against theemployer as a means of achieving thegoals of the labor union, such as dyna-miting a plant, that evidence would es-tablish a prima facie case.

In the absence of such evidence, a de-fendant would be entitled to dismissalof the case. In fact, in the absence ofsuch evidence, such matters should beleft to the States, which are fully capa-ble of dealing with disorderly conduct,assault, property destruction, and otherlesser crimes. And that is what theseminor offenses are in the absence of aplan or conspiracy to extort.

Mr. President, one other matter. Inlight of questions that have been raisedas to the effect of the modification ofthe language of the present 18 U.S.C.1961 by section 1806(e), I wish to stressthat under the code we intend the crurtsto follow the limiting gloss on the pres-ent law stated by Judge Pierce in UnitedStates v. Stofsky, 409 F. Supp. 609(S.D.N.Y.) :

This court therefore construes the word"pattern" as including a requirement thatthe racketeering acts must have been con-nected with each other by some commonscheme, plan, or motive so as to constitutea pattern and not simply a series of discon-nected acts.

Moreover, it should also be noted inthis connection that while the word"conducts" in section 1802 is, as statedin the committee report-page 776-tobe construed "broadly," it does not in-clude acts by officers and employees fortheir own financial benefit which do notincrease their domination of the orga-nization's affairs or further unlawful ac-tivity by the organization.

Mr. CRANSTON. Mr. President, Iwould like to ask the distinguished floormanager several questions which havebeen raised by members of the press whohave expressed some concerns over cer-tain provisions of S. 1437.

Mr. KENNEDY. I will be glad to re-spond to the Senator's questions.

Mr. CRANSTON. I would like to askthe floor manager a question regardingsection 1311, hindering law enforcement.Specifically, paragraph (1) (D) of sub-section (a) which is an offense for alter-ing, destroying, concealing a record ordocument if the conduct is done to in-terfere with or hinder the discovery,apprehension, prosecution, conviction,or punishment of another person whenthe actor knows that the other personhas committed a crime or is chargedwith or is being sought for a crime. Thequestion is: would a reporter be guiltyof concealing a document containingevidence of unlawful conduct if he didnot turn in his notes regarding Govern-ment corruption which he had obtainedin an interview with a confidentialsource?

Mr. KENNEDY. No. The formulationof this offense including the altering,

1367

CONGRESSIONAL RECORD- SENATE

destroying, or concealing of evidence isbased upon the Model Penal Code andthe Brown Commission. Its purpose isto prohibit such things as the destruc-tion or alteration of the Watergatetapes, attempts to "deep six" evidenceand other such conduct. There is noevidence that the Brown Commissionintended this offense to interfere withthe right of reporters to maintain theconfidentiality of their notes. As usedin this offense, concealing requiressome affirmative conduct so it wouldnot interfere with the ability of investi-gative reporters to protect the confi-dentiality of their sources.

Mr. CRANSTON. Would a reporter beguilty of concealing if, under persistentquestioning by Federal investigators, herefused to divulge the identity of asource or a suspect or refused to makehis notes and other material available?

Mr. KENNEDY. No. So long as hisconduct consists of keeping silent on thesubject, the reporter has not engagedin conduct constituting concealing.

Mr. CRANSTON. Would a reporter beguilty of an offense if he destroyed hisnotes or erased tapes or other workproduct knowing that these containedevidence sought by law enforcementagencies?

Mr. KENNEDY. No, unless the evi-dence had been subpenaed or otherwiselawfully requested. And, if the reporterdestroyed his notes in the normal courseof his work and did not destroy themwith the intent to prevent law enforce-ment agencies from obtaining themthrough proper process, no offense wouldhave been committed since the requisiteintent was absent.

Mr. CRANSTON. I thank the distin-guished floor manager.

Does section 1324, an offense for re-taliating against a witness, apply to anewspaper which reports the testimonyof a witness. Specifically, subsection(a) (2) makes it an offense to "im-properly" subject another person toeconomic loss or injury to his businessbecause a person has testified as a witnessin an official proceeding. Would the pressbe subject to this offense if publication ofthe witness' testimony, which includedevidence of his own unlawful conduct,caused economic loss to the witness?

Mr. KENNEDY. No. It is not "im-proper" to publish information includingthe testimony of a witness even if suchpublication causes humiliation or eco-nomic loss to the witness. The offense isdesigned and intended to prohibit retali-ation against a witness on account of hisappearance as a witness. In a situationof publication by a newspaper of a wit-ness' testimony, the newspaper wouldnot be retaliating for his appearance asa witness, but merely publishing infor-mation made available through the wit-ness' testimony. This is precisely whythe term "Improperly" is included in theoffense.

Let me give some examples of whatthis offense would apply to. First, if apublic servant testified before Congressconcerning corruption in a Governmentagency or cost overruns on a Government

project, it would be an offense if his su-periors discharged such a person or de-nied him promotion because of hisappearance to give testimony which wasembarrassing to the agency. Another ex-ample might be a situation where afarmer reported kickbacks given by theoperators of a grain elevator to graininspectors and the subsequent cancella-tion and breach of a contract betweenthe grain elevator and the farmer be-cause of his testimony.

Mr. CRANSTON. I would like to askanother question of clarification. Thecontempt section provides a specific de-fense for gag orders. Would a reporterbe able to claim a reporter's privilege?

Mr. KENNEDY. Yes. Section 1331, con-tempt must be read together with section1333 refusal to testify which provides anaffirmative defense if information is priv-ileged. Nothing in the code is intendedto preclude the judicial development andrecognition of a newman's privilege andthe specific privilege for gag orders insection 1331 is not intended to overrideany privilege that a witness may haveunder the law. The bill is silent on this.

It is also important to note that sec-tion 104 states that the code is not in-tended to affect the civil contempt au-thority of courts which they may chooseto utilize in those cases where there is agood faith claim of privilege.

Mr. CRANSTON. Does either section1331, contempt, or section 1333, refusingto testify, eliminate any right of a news-man to claim a privilege for confidentialinformation?

Mr. KENNEDY. No. Section 1331 ingeneral, simply restates the existing con-tempt power in section 401 of title 18. Itwould not alter or diminish the right ofa newsman to claim a privilege.

Second, section 1333 specifically pro-vides an affirmative defense if a witnesshas a privilege not to testify. This is in-tended to cover lawyer-client, doctor-patient, and other such privileges. In1974, when Congress enacted the Federalrules of evidence, it included rule 501,which left the recognition and develop-ment of privileges up to the courts. Noth-ing in section 1333 would alter this au-thority. A number of first amendmentcommentators have concluded that aqualified newsman's privilege is emerg-ing. This is based on such civil cases asBaker v. F & F Investment, 470 F.2d 778(2 Cir. 1972), cert. denied, 411 U.S. 966(1973), and Cervantes v. Time, Inc., 464F.2d 968 ,8th Cir. 1972) cert. denied 409U.S. 1125 (1973). There have been a fewFederal criminal cases directly address-ing this point subsequent to Branzberg,but in one notable State case. JusticePoff of the Virginia Supreme Court, aformer Congressman and member of theBrown Commission, recognized a privi-lege. See Brown v. Commonwealth, 204S.E. 2d 429 (1974), cert. denied 419 U.S.966 (1974).

In sum, the answer is that nothing inthe code would alter or eliminate anyprivilege which a reporter is entitled toclaim, nor the authority of the courts tocontinue to develop the law in this area.

Mr. JAVITS. Mr. President, I wouldlike to express a concern that I have

with section 1525 of this bill. That sec-tion would provide for criminal penal-ties for the release by Government em-ployees of certain information whereconfidential treatment of that informa-tion is mandated by another statute,regulation, rule, or order.

The area of confidential treatment ofinformation in government files is cur-rently a complex and confusing one.There already is a statute on the books-18 U.S.C. 1905-that prohibits the releaseof confidential information by govern-ment employees on pain of criminalpenalties, and this bill preserves thatsection. A large number of other statutesalso prohibit individual agencies fromreleasing certain types of confidentialdata in their files.

Further, it has been held by somecourts that the exemptions from man-datory disclosure contained in the Free-dom of Information Act also prohibitthe release of certain information. Both18 U.S.C. 1905 and the Freedom of In-formation Act exemptions have beencited by those who, for one reason oranother, wish to restrict the release ofinformation in Government files, andthe court decisions interpreting thosesections have been contradictory.

I believe that Congress should care-fully review the whole subject of Gov-ernment information policy on informa-tion received by the Government as con-fidential with a view toward clearing uppresent ambiguities, and making avail-able to the public as much informationas possible, while protecting from dis-closure information that is legitimatelyentitled to confidential treatment. I amconcerned that the addition of yetanother confidentiality statute proposedby section 1525 of the bill to the currentlaw, without an adequate analysis of therelationship between that section, sec-tion 1905, the Freedom of InformationAct, and prohibitions on individualagencies, may further confuse an alreadyconfusing area.

Although I do not propose to offer anamendment to strike section 1525, Iwould hope that the conferees will con-sider carefully whether or not there isa need for this additional section, andwill spell out in detail how this sectionrelates to existing law. I believe that thepublic interest will best be served if thelaw enables all interested parties to knowwith greater certainty what informationis public, and what information isproperly confidential and not to bereleased.

In the event that neither the Housecommittee in their deliberations on thisbill nor the conferees address the ques-tion that I have raised here. I would con-sider requesting the GovernmentalAffairs Committee to look into this mat-ter in detail.

Mr. ALLEN. I have only one moreamendment, in view of the Senator'sexplanation. I will not offer it at thistime. I have only one more amendment,and that is to reinsert the provisions ofthe Logan Act. The Logan Act providesthat a private individual may not carryon negotiations with a foreign govern-ment with regard to the foreign relationspolicy of the U.S. Government.

January 30, 19781368

CONGRESSIONAL RECORD- SENA

To knock this act out or to fail to bringit forward would, in effect, not makeevery man a king, as was the cry of somecandidates of the past, some public fig-ures of the past, but it would make everyman a secretary of state. So I do not be-lieve we need to have millions of secre-taries of state running about carryingon foreign negotiations with foreigngovernments.

They say, "Well, there have not beenany prosecutions under it." I believe itis a deterrent.

I was talking with one of the distin-guished Senators who went down toPanama, and he said before going downhe called the President of the UnitedStates and asked him to send someonedown with his part to represent the StateDepartment. He did not want to becharged with carrying on foreign rela-tions negotiations.

I do believe it will serve as a deterrentagainst having private citizens carry onor seek to carry on negotiations of aforeign relations nature with foreigngovernments.

I believe that is the prerogative of thePresident of the United States and theState Department, subject to the controlof Congress in approval of treaties by theSenate, and the power of the purse thatCongress has.

That is the only amendment I haveremaining, and on the adoption of thatamendment I would offer no furtheramendments and would not seek to seethe bill carried over for another day.'

The PRESIDING OFFICER. The Sen-ator from Massachusetts.

Mr. KENNEDY. Mr. President, muchas I would like to move the process for-ward, I would have to resist this amend-ment.

This provision has been on the bookssince 1799, and the Justice Departmenttells me that there has not been oneprosecution under it. Not one. They sayit is one of the most antiquated pro-visions in the current code. They askedSenator McClellan, Senator Hruska, andthe rest of us to take it out.

If we talk about the opportunities formischief in terms of governmentalprosecution, I look at the Logan Act.Businessmen or laborers or commercialinterests may visit different countries,trying to work out commercial agree-ments with another nation. I mean thereare a thousand different fact situationswhere this particular provision, in thewrong hands, could be abused.

I think the most compelling factor forits repeal, Mr. President, is that it hasbeen on the books since 1799 and hasnever been used. But it still lies there.This amendment is strongly recom-mended by the Justice Department. Ithink, in a recodification of the criminalcode, sentimentality about a particularprovision, "the good old Logan Act," hasno place. We are either serious in termsof trying to deal with these issues, or not.

I respect the sincerity of the Senatorfrom Alabama on this issue, but I feelthat we should repeal it. I am remindedthat in the report is says:

Although the Act enjoys a venerable his-tory dating from 1799, it has not been usedfor prosecution and is constitutionally sus-

CXXIV- 87-Part 2

pect, both on grounds of vagueness and un-due interference with free speech.

On those bases, Mr. President, I wouldhope that the amendment would be de-feated.

Can we have a voice vote?Mr. ALLEN. I have not offered it yet.Mr. KENNEDY. Oh, I see. I thought

the Senator had.Mr. ALLEN. Mr. President, what is the

pending amendment?COMMITTEE AMENDMENT-PAGE 78, LINE 15

The PRESIDING OFFICER. Thepending question is on agreeing to thecommittee amendment on page 78 at line15.

Mr. ALLEN. I move the adoption ofthe amendment.

The PRESIDING OFFICER. The ques-tion is on agreeing to the amendment.

The amendment was agreed to, as fol-lows:

On page 78, line 15, after "assigned" in-sert "noncriminal";

The PRESIDING OFFICER. The clerkwill state the next committee amend-ment.

The legislative clerk read as follows:On page 78, line 19, after "and" insert "in

fact";

The PRESIDING OFFICER. The ques-tion is on agreeing to the amendment.

Mr. ALLEN. Mr. President, I wonder ifthe manager of the bill would explain theamendment. I think the Senate would beinterested in knowing what it is.

Mr. KENNEDY. Is it on page 79, did Iunderstand?

The PRESIDING OFFICER. Page 78.Mr. KENNEDY. For clarification. The

amendment on line 19 is to clarify thewords that follow it.

The PRESIDING OFFICER. The ques-tion is on agreeing to the amendment.Without objection, the amendment isagreed to. The clerk will state the nextcommittee amendment.

The legislative clerk read as follows:On page 78, line 23, after "omits" insert "a

material fact necessary to make a writtenstatement not misleading,";

The PRESIDING OFFICER. Thequestion is on agreeing to the amend-ment.

Mr. KENNEDY. Mr. President, I sug-gest the absence of a quorum. This willbe a live quorum.

The PRESIDING OFFICER. Theclerk will call the roll.

Mr. HELMS. Mr. President. will theSenator withhold that just one mo-ment?

Mr. KENNEDY. I withhold it.Mr. HELMS. Mr. President, as we

conclude consideration of S. 1437, it iswell to remember that many Senatorswho took an active part in this debatewere not notified that the bill would beconsidered until 2 days before it wastaken up. Many Senators had only 1or 2 days' notice to consider the manydetailed and technical provisions of thisbill which contains more than 280 pagesof criminal laws-laws by which millionsof Americans may one day have thelegality of their conduct measured.

Mr. President, although codificationand revision of the Federal Criminal

January 30, 1978 TE 1369

Code has been a goal of the Senate forsome time and many States have alreadycodified their criminal laws, the clearlesson of this process is that codificationis not automatically reform and revisionis not automatically improvement. Theprovisions contained in this bill affectAmericans' fundamental civil, political,economic, and constitutional rights.Through this code the U.S. Governmentseeks to fulfill its responsibility to pro-tect and preserve the life, liberty, andproperty of its citizens.

In so doing, it is essential that Con-gress maintain the proper perspectiveregarding the role of the National Gov-ernment in our delicate federal system.Historically, the primary responsibilityfor the protection of people from crim-inal activity has rested with the States.Cautious exceptions to this primaryState jurisdiction were made over time,but with an ever-watchful eye towardthe possibility of Federal preemption inthe area of criminal law and an accom-panying national police force.

In considering this bill, I believe wehave not been cautious enough regardingthe large increases in Federal jurisdic-tion which it establishes. We have notbeen jealous enough, as representativesof the States, of the primacy of Statejurisdiction in the criminal law. Further-more, we have failed to take the careful,systematic analysis of the provisions ofthis bill, which I believe our responsi-bility to preserve the freedoms of Amer-icans requires. Therefore, when S. 1437is considered for final passage, I mustvote against it.

We have considered S. 1437 for morethan a week beyond what was originallyscheduled. During this time the Senatehas approved important changes in thebill to protect the liberties of Americans.

We provided that local areas couldapply their own standards of obscenityin accord with recent Supreme Courtrulings regarding the dissemination ofobscene materials.

We sought to protect communitiesfrom criminal violence by permittingjudges to deny pretrial release to personscharged with serious crimes such as rape,kidnapping, armed robbery, when thosepersons pose a continuing danger to thecommunity.

We maintained the traditional com-mon law rule to protect innocent de-fendants from overly broad criminallaws by specifying that criminal statutesbe strictly construed with ambiguitiesinterpreted in favor of the defendant.

We rejected a de facto Gun Control Actproposed in the bill which would haveimposed a 2-year mandatory prison sen-tence for possession of a firearm duringthe commission of a Federal crime. Forexample, until amended, a hunter ar-rested for reckless driving on Federalproperty, and found to have his shotgunin his car, would have been subject to the2-year mandatory sentence for "posses-sion of a firearm" during the commissionof a misdemeanor.

During the past several days muchhas been done to correct deficiencies inS. 1437, yet substantial defects remainin the bill.

CONGRESSIONAL RECORD - SENATE January 30, 1978The bill makes it a crime to make a

false oral statement to a law enforce-ment or other Government official, evenwithout the presence of an attorney ora corroborating witness. Regardless oflegislative history attempting to explainthis provision, it nevertheless would givebroad power to FBI agents, OSHA in-vestigators, IRS and customs officials andmany other Federal investigators. Theaddition of the word "knowingly" im-proves the provision, but by no meanssufficiently. Prosecution of this offenseinvites abuse by setting up a "my wordagainst yours" situation where the de-fendant and the Federal official are theonly witnesses. Finally, unlike presentlaw, this provision would make personscriminally liable for honest mistakes,since it does not require a finding thatthe defendant made an "intentionally"false statement.

The National Commission on Reformof Federal Criminal Laws recommendedthat this provision apply only to officialGovernment proceedings, and to state-ments relating to such violations as falsefire alarms, bomb scares, and incrimina-tion of innocent people. Unfortunately,the bill does not reflect the Commission'sadvice.

Elsewhere, the bill subjects business-men to criminal liability for honest mis-takes and unintentional violations ofvery technical and complicated laws in-volving securities and investments. Manyof these laws presently require an inten-tional violation before a businessmanmay be arrested and criminal proceed-ings begun.

The bill also grants broad authoriza-tion to the Internal Revenue Service touse paid informants in obtaining crimi-nal charges against taxpayers. Late lastyear, an extensive Government Account-ing Office report found substantial mis-use of informants by the IRS. Althoughthe use of informants is important incases regarding organized crime, theserious risks to all taxpayers' rights-which the use of informers poses-re-quire strong controls, not the broadauthorization this bill establishes.

The bill repeals present Federal lawmaking it a crime to advocate the violentoverthrow of the Government. In lightof the rigorous standards and supervi-sion which the Supreme Court has giventhis law to protect academic or innocentspeech not intended to produce violenceor subversive activity, it is difficult tounderstand why it should be summarilyrepealed.

The bill provides defenses to pornog-raphers which may undermine recentSupreme Court decisions enabling localcommunities to protect themselves fromobscene materials; see for example,Smith v. United States 45 L. W. 4495(1977).

The bill repeals the present Federalsanctions against engaging in prostitu-tion on U.S. military bases.

It greatly increases the power and dis-cretion of prosecuting attorneys by estab-lishing such criminal laws as "Section1623, Criminal Restraint-A person isguilty of an offense if he restrains an-other person." What are the implicationsof that section, Mr. President?

Organizations so diverse as the Amer-ican Civil Liberties Union and the Amer-icans for Constitutional Action havevoiced concern about procedural aspectsof the bill as well as the definitions ofmany crimes.

Furthermore, the sentencing mecha-nism which the bill seeks to establish is anovel one representing a major departurefrom existing practice. Presently, severalStates have instituted new sentencingprocedures and standards which havenot yet been proven by experience. I be-lieve that it would be wiser to study the.results of these State initiatives before\enacting such a substantial redirectionof the Federal sentencing system. Verylittle time has been spent during the pastseveral days discussing the merits andpotential risks in adopting the proposedsentencing plan.

Mr. President, we have not squarelyfaced issues such as the substantial in-crease in Federal jurisdiction; the in-crease in prosecutorial discretion; thedrafting of broad rather than specificcriminal statutes; and the removal of"intentionality" and "knowledge" as ele-ments from many offenses.

This bill may very well be an improve-ment over its predecessor S. 1, however,this is not sufficient reason to pass thislegislation at this time.

Mr. KENNEDY. I suggest the absenceof a quorum.

The PRESIDING OFFICER. The clerkwill call the roll.

The second assistant legislative clerkproceeded to call the roll.

Mr. THURMOND. Mr. President, I askunanimous consent that the order forthe quorum call be rescinded.

The PRESIDING OFFICER. Is thereobjection? Without objection, it is soordered.

UP AMENDMENT NO. 1160

Mr. THURMOND. Mr. President, Isend to the desk an amendment and askfor its immediate consideration.

The PRESIDING OFFICER. Does theSenator ask unanimous consent that theamendment may be considered at thistime?

Mr. THURMOND. Yes, I do.The PRESIDING OFFICER. Without

objection, it is so ordered. The clerk willstate the amendment.

The second assistant legislative clerkread as follows:

The Senator from South Carolina (Mr.THURMOND) proposes an unprinted amend-ment numbered 1160.

Mr. THURMOND. Mr. President, I askunanimous consent that further readingof the amendment be dispensed with.

The PRESIDING OFFICER. Withoutobjection, it is so ordered.

The amendment is as follows:On page 164, strike out lines 32 through

37, as amended, and insert in lieu thereof thefollowing:

"(1) a Class C felony in the circumstancesset forth in subsection (a) (1);

"(2) a Class D felony in the circumstancesset forth in:

"(A) subsection (a) (2), if the violation isof a provision set forth in subsection (a)through (i) of section 1103 of the OrganizedCrime Control Act of 1970, as amended (15U.S.C. -); or

"(B) subsection (a)(5);

Mr. THURMOND. Mr. President, allthis amendment does is to correct an er-ror that was made in a Javits amendmentthat the Senate has adopted. It is purelya technical amendment.

The PRESIDING OFFICER. The ques-tion is on agreeing to the amendment ofthe Senator from South Carolina. With-out objection, the amendment is agreedto.

The question recurs on agreeing to thecommittee amendment on page 78, at line23. Without objection, the amendment isagreed to.

The clerk will state the next commit-tee amendment.

The legislative clerk read as follows:On page 78, line 27, after "false" insert "or

it";

The PRESIDING OFFICER. The ques-tion is on agreeing to the amendment.Without objection, the amendment isagreed to. The clerk will state the nextcommittee amendment.

The legislative clerk read as follows:On page 90, line 9, strike "or";

The PRESIDING OFFICER. The ques-tion is on agreeing to the amendment.Without objection, the amendment isagreed to. The clerk will state the nextcommittee amendment.

The legislative clerk read as follows:On page 92, line 9, strike "in fact";

The PRESIDING OFFICER. The ques-tion is on agreeing to the amendment.Without objection, the amendment isagreed to. The clerk will state the nextcommittee amendment.

The legislative clerk read as follows:On page 92, line 21, strike "in fact";

The PRESIDING OFFICER. The ques-tion is on agreeing to the amendment.Without objection, the amendment isagreed to. The clerk will state the nextcommittee amendment.

The legislative clerk read as follows:On page 96, line 24, strike "to be" and in-

sert "is";

The PRESIDING OFFICER. The ques-tion is on agreeing to the amendment.Without objection, the amendment isagreed to. The clerk will state the nextcommittee amendment.

The legislative clerk read as follows:On page 96, line 26, after "Class" strike "A

misdemeanor" and insert "E felony";

The PRESIDING OFFICER. The ques-tion is on agreeing to the amendment.Without objection, the amendment isagreed to.

UP AMENDMENT NO. 1161

Mr. ALLEN. Mr. President, I send tothe desk an amendment and ask unani-mous consent that it be in order to con-sider it at this time.

The PRESIDING OFFICER. Withoutobjection, it is so ordered.

The clerk will state the amendment.The legislative clerk read as follows:The Senator from Alabama (Mr. ALLEN)

proposes an unprinted amendment number-ed 1161: Amend amendment No. 1624. Onpage 333 between lines 11 and 12 add thefollowing new section:"SEC.-REENACTM3ENT OF LOGAN ACT-

Mr. ALLEN. Mr. President, I askunanimous consent that further read-ing of the amendment be dispensed with.

January 30, 1978The PRESIDING OFFICER. Without

objection, it is so ordered.The amendment is as follows:Amend Amendment No. 1624. On page 333

between lines 11 and 12 add the followingnew section:"SEC.-REENACTrzENT OF LOGAN ATr-

Any citizen of the United States, whereverhe may be, who, without authority of theUnited States, directly or indirectly com-mences or carries on any correspondence orintercourse with any foreign government orany officer or agent thereof with intent toinfluence the measures or conduct of any for-eign government or of any officer or agentthereof, in relation to any disputes or con-troversies with the United States, or to de-feat the measures of the United States, shallbe fined not more than $5,000 or imprisonednot more than three years, or both.

"This section shall not abridge the right ofa citizen to apply, himself or his agent, toany foreign government or the agents there-of for redress of any injury which he mayhave sustained from such government or anyof its agents or subjects."

Mr. ALLEN. Mr. President, thisamendment would reenact the LoganAct, which prevents a private citizenfrom carrying on or seeking to carry onrelations with foreign governments hav-ing to do with the foreign relations pol-icy of the U.S. Government. Without thisamendment reinstating the Logan Act,which was dropped by the bill, as Ipointed out, every man in the countryor every woman in the country wouldbe a secretary of state. They would notbe precluded from personally seeking tocarry on negotiations with foreign gov-ernments. With this provision, which, ithas been pointed out, has not had anyprosecutions under it, I would feel thatthe existence of the act is a deterrentto individuals, whether they be in anofficial capacity, outside of the State De-partment or the President, from seekingto carry on foreign negotiations.

We have seen some Senators goingabroad and, apparently, seeking to advo-cate policies contrary to the policy of theU.S. Government. This would be somesort of deterrent to that type of activity.

I am hopeful that the distinguishedmanager of the bill will reconsider hispreviously stated opposition to theamendment and will see the wisdom ofaccepting the amendment.

Mr. KENNEDY. Mr. President, I amreminded that the Senate has to do bus-iness and that there is a busy schedule.I move that we accept the amendmentand I hope that my good friend fromAlabama is going to be in the conferenceto fight for it fiercely so it will not getlost on the way over to wherever thatconference is.

Mr. ALLEN. I am afraid if it is leftup to the Senator from Massachusetts,it will get lost. We do seek to keep it in.

I appreciate the graciousness andcourtesy of the distinguished manager ofthe bill. Also, I commend the distin-guished majority leader for pushing thisbill along. It has taken only some 8 daysto finish and the distinguished managerof the bill had allocated 3 weeks to it.I feel that the Senate has acted expedi-tiously, but I do believe that carrying thematter over for as long as we have hasallowed constructive amendments to

CONGRESSIONAL RECORD -SENA

come in. I am hopeful that the bill is amuch improved one from the bill thatcame out of the committee. It has notbeen improved to the point where theSenator from Alabama can vote for it,but I do believe that it is a much betterbill.

I appreciate the cooperation that thedistinguished manager of the bill hasgiven me in my efforts to make somesmall changes in the bill.

Mr. KENNEDY. I thank the Senatorfrom Alabama. There have been somevaluable contributions made to this leg-islation. I thank the Senator from Ala-bama for his involvement in its develop-ment here, on the floor, and in thecommittee.

Mr. President, I send to the desk tech-nical amendments-

Mr. ALLEN. Mr. President, I do notbelieve we have had a unadimous voteon my amendment yet.

The PRESIDING OFFICER. The ques-tion is on agreeing to the amendment ofthe Senator from Alabama.

The amendment was agreed to.Mr. ALLEN. Mr. President, I ask unan-

imous consent that the remainder of thecommittee amendments may be consid-ered en bloc.

Mr. SCOTT. Mr. President, reservingthe right to object.

Several days ago, I offered an amend-ment that would restore the death pen-alty in a number of instances. It is myunderstanding that the distinguishedSenator from Massachusetts opposedthis. It was not adopted, even though heindicated at the time that he would makeevery effort to see that the bill was re-ported out of the committee, but hewould vote against the amendment.

There is a large amendment here-itis amendment No. 1624-by the distin-guished Senator from Massachusetts. Itwould take a long time to read this; it is333 pages long. I believe it takes unani-mous consent to waive the reading of anamendment. It would take a long timeto vote on it if we had a division of theamendment. I understand that, some-where within these 333 pages, there is aprovision that does away with the crimeof murder, except for skyjacking, wheresomeone is killed when an airplane istaken over in an unlawful manner.

If that is true, that would mean thatthe bill, as proposed by former SenatorMcClellan and 19 cosponsors, would notbe properly drawn. This is somethingthat concerns me. I should not want toask that this entire amendment be read.I would not want to take the time of theSenate by asking that the amendment bedivided so that we would have a separatevote on each portion of this 333-pageamendment. Yet, I think that, in fair-ness, the portion of this amendment thatwould require that the McClellan deathpenalty bill be rewritten should beeliminated in the event that it is in thisamendment, as I understand it to be.

I wonder if the distinguished Senatorfrom Massachusetts will address himselfto this.

Mr. KENNEDY. I am not sure what theparticular question is that the Senatorfrom Virginia asks.

.TE 1371Mr. SCOTT. I have just gone over it.

Perhaps the Senator had some otherbusiness that he was transacting at thetime.

The distinguished Senator will remem-ber that a few days ago, I did offer anamendment that would reestablish thedeath penalty for murder in those in-stances where murder is made a Federalcrime under present law, provided thatcertain procedures were followed as setforth in a rather extensive bill that hadbeen offered by the late SenatorMcClellan. The distinguished Senatorfrom Massachusetts saw fit to oppose theamendment, but he said at the time that,even though he would vote against theamendment, he would work to see thatthe death penalty bill was reported out ofthe Committee on the Judiciary. Yet Iam told that, in this comprehensiveamendment 1624, there is a provisionthat eliminates the crime of murder as aFederal crime, except for hijacking, whenmurder is committed when an airplaneis hijacked.

Am I wrong in my assumption thatthat is in this amendment?

Mr. KENNEDY. The Senator is correctthat the provisions of the death penaltythat have been included in this bill arelimited to the skyjacking provisions be-cause that is the only death penalty billthat has been passed subsequent to theSupreme Court decision on the deathpenalty. With regard to the pending Sen-ate death penalty bill, I am certain it willbe recodified into this law at theappropriate time.

We will be passing additional laws,obviously, concerning different crimesand they will be codified into this law.

The Senator is correct in stating thatthe only provisions on the death penaltyin S. 1437 are the provisions that havebeen passed subsequent to Supreme Courtdecision.

Mr. SCOTT. The death penalty is stillin the code as presently enacted.

Mr. President, I must apologize formy voice. I have had a cold over theweekend and I am taking medicationthat makes my throat dry.

Mr. President, it is my understandingthat within the Federal code as it pres-ently exists, the crime of murder wherethe death penalty is provided is set forthin a number of instances, that the pro-posed amendment by the distinguishedSenator from Massachusetts, thislengthy amendment which I have notread, but contains 333 pages, has a pro-vision in it that would strike out thedeath penalty except where death is dur-ing the skyjacking situation.

I would ask that that portion be de-leted so that we would still have thecrime of murder in the instances whereit is presently in the code, even thoughit may be that the death penalty wouldbe contrary to some recent decisions ofthe Supreme Court, because these viola-tions of the Constitution would be curedby the McClellan bill. There is no use tooffer a bill to make lawful a matter thatis in the code now, but is being strickenby this amendment that is proposed bythe Senator from Massachusetts. I amsure that the staff member of the com-