|Table of Contents|
Table of Contents
Letter of transmittal
Civil justice and court reform
Immigration and refugees
Administrative practice and procedure
Department of Justice authorization and oversight
96th Congress COXTTEE PRINT 1st Session J
COMMITTEE ON THE JUDICIARY
PROGRAM FOR THE FIRST SESSION
PIKTE AT=TH D OF ~A1
Hon. EDWARD M. KENN
FOR THE USE OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
U.S. GOVERNMENT PRINTING OFFICE 40-315 WASHINGTON : 1979
COMMITTEE ON THE JUDICIARY
EDWARD M. KENNEDY, Massachusetts, Chairman
BIRCH BAYH, Indiana STROM THURMOND, South Carolina
ROBERT C. BYRD, West Virginia CHARLES McC. MATHIAS, JR., Maryland JOSEPH R. BIDEN, JR., Delaware PAUL LAXALT, Nevada JOHN C. CULVER, Iowa ORRIN G. HATCH, Utah
HOWARD M. METZENBAUM, Ohio ROBERT DOLE. Kansas
DENNIS DECONCINI, Arizona THAD COCHRAN, Mississippi
PATRICK J. LEAHY, Vermont ALAN K. SIMPSON, Wyoming
MAX BAUCUS, Montana
HOWELL HEFLIN, Alabama
DAVID BOES, Chief Counsel and Staff Director
Letter of Transmittal ------------------------------------ Vii
Historical perspective -------------------------------------1I
N o m i ati n s --- --- ---- --- ---- --- --- ---- --- --Nuia ominations -----------------------------------NoJudicial nominations ------------------------------Nnjudiia nominations-------------------------------- .
Antitrust-----------fom-----------------------------Antimtrsto r ooledurl-reform -------------------------- C
CAtepts t monooliz---------- --- 7----------------Capper-otieaodion Act-------------------------------Conetitieonadiionstin the-re----ng-industr----------7
Concenrato a------inflation--------------------------Meeg e r ocrn - - - -- - - - -
Healthe inrce adtphysica compensation--------------- I'
Nconuecntut actipons--------------------------------- 9
O-lconductv ownorp o----------------------------- )
Ovih ofn ownership of altrntie nrgst sourcys----------9 Reealh of epcarment feJuisic antitrust eipolicy-----Rpeaofin te aran-egusoabl arcnirs exemption----- an
Reaprvisopraions toavnee tbe pilopn--------------------9
Retiai tgaini h petroleum oprtosb inmpanie------------ I(
Verticlineratn ith petrole--m--industr----------------I()
Profejssioenl sport------------------------------------- 11
CiiStaiand court---reform--------------------------Csain----------------------------------------- 1
D-aiers nd--u---- nn---d--r-- tr---o--------------------14Dispute Resolution Act---------------------------------- 15
Federal Courts Improvement Act of 1979 ---------- 13
Future role of the Federal courts -------------------------- 15
Pension reform ---------------------------------------- 16
Rate-of -return cost disclosure in life insurance ---------------16
Shareholders rights and corporate governance ----------------16
Criminal justice ----------------------------------------- 18
FBI charter ------------------------------------------- 18
Victims of crime --------------------------------------- 18R
Exclusionary rule ------------------------------------- 19,
Grand jury reform-------------------------------------- 19,
Department of Justiceoversighto---o---------ooooooooooo 2
Computer fraud and white collar crime -------------------- 20
"Graymail" legislation ----------------------------------- 20
International terrorism ---------------------------------- 20
Children's issues ---------------------------------------- 20
Prison reform and modernization ------------------------- 21
Title 18 amendments ------------------------------------- 21
Auto theft ---------------------------------------------- 21
The Criminal Code Reform Act of 1979 -------------------- 21
The Justice System Improvement Act of 1979 -------------- 21
Immigration and refugees --------------------------------- 22
+, ,elect Commission on Immigration and Refugee policy ------- 22 Refugee reform legislation ------------------------------- 23
Undocumented aliens ------------------------------------ 23
Nationality provision of law ----------------------------- 23
Other legislative proposals ------------------------------- 24
Private immigration bills -------------------------------- 24
Oversight --------------------------------------------- 24
Constitutional rights -------------------------------------- 25
Proposed constitutional amendments ---------------------- 25
Direct popular election of the President and the Vice
President ---------------------------------------- 25
Constitutional limits on the Federal budget ----------- 25
Constitutional convention procedures ----------------- 26
Abortion and freedom of choice ----------------------- 26
Rights of privacy --------------------------------------- 27
Limitations on the use of polygraphs and other supposed
lie detection devices ------------------------------- 27
Police searches against nonsuspects. ------------------- 27
First Amendment --------------------------------------- 28
Reporters shield ----------- ------------------------- 28
Cameras in the courtroom --------------------------- 28
The Judiciary ------------------------------------------ 28
Judicial discipline ---------------------------------- 28
Extrajudicial activities ------------------------------ 28
Speedy Trial Act ------------------------------------ 28
Civil and Constitutional Rights -------------------------- 29
Rights of institutionalized persons -------------------- 29
Civil Rights Acts oversight -------------------------- 29
U.S. Commission on Civil Rights --------------------- 30
Attorneys fees -------------------------------------- 30
Voting rights --------------------------------------- 30
Rights of children ---------------------------------- 30
Juvenile Justice Act --------------------------------- 31
Discrimination against the elderly ------------------- 31
Administrative practice and procedure ---------------------- 32
Reform of Administrative Procedure Act ----------------- 32
Regulatory Flexibility Act ------------------------------- 32
Public participation in Federal agency proceedings -------- 33 Administrative Conference -------------------------------- 33
Government information policies ------------------------- 34
Freedom of Information Act ------------------------------ 34
'Privacy ------------------------------------------------ 34
Federal Tort Claims Act Amendments --------------------- 35
Regulatory reform ---------------------------------------- 36
Applicability of antitrust principles ---------------------- 36
Motor carrier industry ----------------------------------- 36
Competition Improvements Act --------------------------- 37
Anticompetitive effects of Government regulation ----------- 37
Department of Justice authorization and oversight ----------- 38
Investigations -------------------------------------------- 39
Digitized by the Internet Archive
LETTER OF TRANSMITTAL
COMXI=rE ON MEJ3 JUDICIARY, W~ashington, D.C., April, 1979.
DEAR COLLEAGuE: Pursuant to the resolution adopted at our business meeting on February 1, 1979, 1 have filed with the Committee on Rules and Administration our resolution requesting funding for the work of the Committee on the Judiciary for the first session of the 96th Congress.
To amplify our funding request, I have prepared a projection of the activities to be undertaken in the 96th Congress.
EDWARD M. KENNEDY, Ch airman.
On the day after the Senate first convened in 1789, eight Senators were designated to develop a bill -which eventually became the Judiciary Act of 1789, one of the principal legislative achievements of the 1st Conzress. This measure and other laws enacted durin 21. the first several decades of the Senate's history were referred to select committees appointed specifically for that purpose. As the workload of Congress grew, however, first the House and then the Senate began to develop standing committees. The first standing legislative committees of the Senate were created in 1816, and included a, Committee on the Judiciary complementing the House Committee established 3 years earlier.
The initial responsibility of the Senate Committee included scrutin7 of measures concerning the courts, law enforcement, and judicial administration. These matters remain at the core of the committee's jurisdiction, but many other important responsibilities have been added. Early addition's were bankruptcy policy and state boundaries. The Legislative Reorganization Act of 1946 added several subjects theretofore assigned to other Senate committees. The question of apportioning Representatives, for example. had been considered by the Judiciary Committee as early as the 1 74th Congress, but was later transferred to the Committee on Commerce until 1946. when it -was returned to the Judiciary Committee. Jurisdiction over patents, trademarks, and copyright policy initially resided w ith Judiciary. until the Senate created its Committee on Patents in 1837. Likewise, immigration and naturalization measures were considered by the committee until 1889, when the Committee on Immigration was established. In 1946, these and other subjects w ere restored to the jurisdiction of the Judiciary Com.mittee as part of a committee consolidation substantially reducing the number of standing Senate committees.
The Judiciary Committee's jurisdiction over proposed constitutional amendments has grown less erratically. The committee considered only two proposed amendments before th Civil War, but two out of every three such proposals during the 25 years following. All but 3 percent of the amendments introduced in the Senate between 1923 and 1946 were referred to Judiciary, and its jurisdiction became exclusive thereafter.
There has been a similar development in the committWs responsibility for considering judicial and certain executive branch nominations. in 1868, the Senate determined that all nominations should be referred to appropriate standing committees. Prior to that time, nominations were referred by motion only, and no more than perhaps one out of three Supreme 0ourt nominaiions was sent to the committee for initial consideration. Since the Reconstruction period, however, the committee's role in confirmation proceedings has become increasingly commonplace.
Inevitably, given its import-ant and growing responsibilities, the Judiciary Committee historically has borne a significant share of the Senate's workload. Following World War I, as much as 10 percent of the Senate's business may have been referred to the committee. Following 1946, when components of its jurisdiction was added or restored, the committee has often been responsible for 30 to 40 percent or more of all measures in the Senate. It is not surprising, therefore, that the committee has grown in size commensurate with its growing responsibilities. Those functions range from judicial systems and the effective administration of civil justice, to more selective responsibilities over immigration and copyright. They encompass the broad and complex questions attending economic growth and competition, as fostered by the operation of antitrust legislation. They embrace the full panoply of constitutional rights and duties, which evolve not only through judicial decisions, but through protective legislation. And, in all of these endeavors, they implicate those matters at the heart of our constitutional democracy, from the definition of justice, to the strueture of a capitalist system, to the most fundamental of constitutional rights.
Article II, section 2 of the Constitution gives the President the power to appoint the principal officers of the Federal Government "by and with the Advice and Consent of the Senate." The Committee on the Judiciary has a unique role in reviewing nominations. It considers the choice not only of Federal administrators but also of judges and judicial officers-the principal decision makers of a separate "nonpolitical" branch of the Federal Government. During the 96th Congress, the process of appointments to the Federal bench will be one of the major responsibilities of the committee. With passage of the Omnibus Judgeship Act of 1978, the committee will have the awesome task of confirming approximately one-third of the entire Federal judiciary.
The Omnibus Judgeship Act, passed in the 2d session of the 95th Congress, created 152 new judgeship positions: 117 positions for Federal District Courts and 35 positions for the eleven Federal Circuit Courts. When these positions are added to those vacated through normal rates of attrition, it can be anticipated that more than 200 men and women will be appointed during this Congress. In contrast, the committee considered only 44 nominees to Federal judgeships during the 94th and 71 during the 95th Congress. The magnitude of the committee's responsibilities is very apparent.
in the Omnibus Judgeships Act and by Executive order, both Congress and the President have gone on record in support of merit selection of the Federal judiciary. In order to ensure that only the highest qualified nominees are confirmed for positions on the Federal bench, the committee will establish a new process of evaluating the qualifications of the men and women whose names are submitted to it.
An extensive questionnaire has been developed in order to provide the maximum information to the committee about each candidate. The questionnaire, which is to be filled out by each nominee, covers matters of background, training, experience, organ iz ation al activities, writings, attitudes concerning equal justice under law, finances, and possible conflicts of interest. Portions of the questionnaire will be made available to the public for inspection and comments.
A special investigative staff responsible for a careful study and analysis of the background and qualifications of nominees has also been assembled and the committee has arranged to obtain access to FBI reports and other investigative materials of the Department of Justice.
The Chairman has established general nomination procedures to be followed in processing each nomination. Upon receipt of a nomination from the President, ihe committee will give public notice, issue blue slips to the Senators from the nominee's State requesting their comments, and send its questionnaire to the nominee. The committee will
also solicit comments about each nominee from the American Bar Association and other interested organizations and individuals. Upon completion of its investigation of the nominee, the committee will set a confirmation hearing date. It is anticipated that approximately 5O separate confimation hearings will be held.
The committee will endeavor to continually reevaluate its confirmation procedures with an eye toward establishing an efficient, comprehensive process by which the Senate can carry out its advice and consent. responsibilities. To this end the committee intends to closely examine the entire selection and confirmation process and will hold extenisive oversight hearings into the role of the various Government agencies. nominating commissions and panels and private organizations which influence the selection of Federal judges. Of particular concern will be the efforts made to guarantee that the Federal courts are more representative of all the people of this Nation.
The Committee on the Judiciary will also act upon the nominations of top administrators and policymakers in the executive branch of the Government. Nominees for the following agencies are processed in the committee: Department of Justice, Administrative Conference of the United States; all United States Attorneys; the judge, attorney and marshal for the Canal Zone; the Civil Rights Commission; Cominunitv Relations Service; Court of Claims; Court of Customs and Patent Appeals; U.S. Customs Court; Drug Enforcement Administration: Federal Bureau of Investigation; Foreign Claims Settlement Commission; the judge, attorney and marshal for Guam; Immigration and Naturalization Service; Law Enforcement Assistance Administration; Parole Commission and the Patent Office.
The committee intends to undertake a comprehensive study of the confirmation process for nominations to each agency or court and will establish procedures to guarantee the selection and confirmation of highly qualified individuals.
Effective antitrust laws and effective enforcement of those laws are perhaps more important today than at any time in our Nation's history. As we suffer the costs of inflation and the constraints of limited resources, we need an economic system which allocates resources efficiently, by providing the highest quality products at the lowest possible prices. That means not only vigorous antitrust enforcement by Government, but also the recognition that governmental regulation or interference can 'be anticompetitive. Where Government regulation itself produces waste or inhibits free competition, the role of market forces must be enhanced. Where undue market power operates to stifle competition, the appropriate role of Government is prescribed by our antitrust laws.
Both goals are mirror images of the same broad objective: promotion of competition in the marketplace. And promotion of competition in the marketplace is the key to protecting consumers' real incomes, the Nation's resources, and individual citizen's political freedom. As the Supreme Court eloquently stated in Northern Pacifle Railway v. U.S., 366 U.S. 15 4-5 (1958) in explaining the function of the Sherman Act, the core of our antitrust statutory f framework:
The Sherman Act was designed to be a comprehensive charter
of economic liberty aimed at preserving free and unfettered competition as the rule of trade. It rests on the premise that the tinrestrained interaction of competitive forces will yield the best allocation of our economic resources the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conducive to the preservation of our
democratic political and social institutions.
The Judiciary Committee is charged with legislative responsibility for protecting "trade and commerce aorainst unlawful restraints and monopolies." To that end, it is the committee's mandate to ascertain whether the antitrust laws are working effectively. If they are not, then the committee must determine whetli r enhanced enforcement efforts of existing laws are called for or whether new laws are needed. That is the framework pursuant to which hearings will be held this session and legislation will be framed. tn
ANTITRUST PROCEDURAL REFORM
Early in the session, hearings will be held on proposed antitrust procedural reforms- including-ihe legislative recommendations of the National Commission for Review of Antitrust Laws and Procedures the Federal Trade Commission and the Department of Justice's Anti-' trust Division. To reduce duplicative discovery efforts, the reconimendations expressly permit the Antitrust Division to obtain discovery materials-from parties to antitrust actions commenced before,
the suit at issue. The recommendations also seek to discourage dilatory litigation tactics by strengthening the financial disincentives for such behavior. The recommendations would also allow courts to give collateral estoppel effect to prior Government judgments in subsequent private suits. In addition, the recommendations would expand the Government's jurisdiction under section 7 of the Clayton Act, the antimerger pr~ovision,to the full reach of the Commerce clause. 'With respect to the FTC, the recommendations propose several changes designed to streamline the agency's subpena authority.
ATTEMPTS, TO MONOPOLIZE!
The National Commission for the Review of Antitrust Laws and Procedures also studies the case law relating to the attempt to monop,olize offense under section 2 of the Sherman Act. Although the commission was divided, a majority concluded that the law of attempt is in disarray and, in at least two respects, overly restrictive. Specifically, the Commission recommended statutory language (1) abandoning the "dangerous probability of monopoly" test in favor of a more flexible "dangerous risk of monopoly" test, and (2) providing that pricing above marginal or average variable cost is not conclusive evidence of the absence of anticompetitive intent or conduct. The committee plans to review the existing attempt to monopolize standards in light of the Commission's recommendations for statutory change.
This act allows producers to "act together in association . in collectively processing, preparing for market, handling, and marketing agricultural products." The act also permits associations to maintain common marketing agencies, and allows associations and their members to make the necessary contracts and agreements for carrying out these purposes. The act was adopted in 1922 out of concern that farmers would not otherwise be able to counter the market power of manufacturing companies.
Recently, the National Commission for the Review of Antitrust Laws and Procedures recommended that cooperative associations be treated like other corporate entities with respect to mergers. That is, mergers, marketing agencies in common, and similar agreements aimong cooperatives should be allowed, the Commission said, only if such practices do not substantially lessen competition. The Commission further recommended more precise definitions of the "undue enhancement" provision in section 2 of Capper-Volstead, and consideration of removing from the Secretary of Agriculture responsibility for enforcement of Capper-Vol1stead. The committee intends to study the Commission's recommendations in the coming session.
COMPETITIVE CONDITIONS IN THE REFINING INDUSTRY
Relationships among the major petroleum refiners have been described in the majority report of the Judiciary Committee on the Pe-
troleum. Industry Competition Act of 1976 (Senate Rept. 94-1005). The committee continues to believe that independent refinery co mpetition is essential to ensure that the public interest is protected. It proposes to continue its examination of the refining industry to determine whether new legislation is required by current circumstances in order to ensure competition.
CONCEINTRATION AND INFLATION
The current rate of inflation is obviously a matter of grrave concern. Inflation undermines hard-earned incomes and threatens the health and well-being of our Nation's poor and elderly. To the extent that higher prices result from anticompetitive f orces at work in the marketplace, they are a- matter of direct concern to this committee.
The rapid rise in prices which has continued unabated over the last decade may well have been fueled by high levels of concentration and anticompetitive practices in important industries in the -United States. The unparalleled inflation of prices for basic necessities has taken its greatest toll on those who can afford it least-the poor, the elderly and the infirm. In a series of hearings, the first of which -will focus on the food industry, the committee plans to explore the relationship between 'inflation, industrial concentration anid anticompetitive practices.
The committee intends to devote a substantial portion of its time and resources to an intensive investigation of large mergers. In 19 75, there were 241 mergers or acquisitions with purchase price of $100 million or more. By 1977 the number of such mergers had increased to 41, and in 1978 there were 80 such mergers. While current legislation governs horizontal or vertical mergers within a given industry, it has failed to reach conglomerate mergers .. those between companies in ostensibly unrelated industries. The committee will study whether new legislation is needed to prevent the potential social, economic, and political consequences of such mergers.
Government procurement practices can have serious anticompetitive effects. For example, by allowing sole source contracts in situations in which items might readily be purchased on the open market, the Government helps distort competitive market forces and wastes tax-dollars in the process.
The Def ense Department appears to be a serious offender in this regard. In 1967, then-Secretary of Defense Robert McleNamara estimat-ed that the failure of the Pentagon to take advantage of competition contributed to the -waste of as much as 25 cents on each procurement dollar. Little has happened in the past 11 years to change that situation. Consistently. Year after year. the Department spends fewer
-than 10 percent of its procurement dollars through contracts let by competitive sealed bidding. And just as consistently. the Pentagon, takes the sole source route for over half of its procuremient- spending.r In fiscal year 1976, the most recent year for which figures are avail-
able, that meant 117,000 sole source Department of Defense contracts, of which 31,000 were for sums greater than $100,000. It also meant that the Defense Department sole sourced $23 billion in procurement contracts, over 57 percent of its $40 billion procurement budget for that fiscal year.
Defense officials argue that sole source contracts are necessary in acquiring sophisticated items. However, it has been argued by others that the Department routinely lets sole source contracts for items that could be purchased competitively. The Navy's procurement last year of the CTX, an off-the-shelf light cargo aircraft, is said to be one example.
The committee plans to hold hearings on this issue during the coming session to ascertain the extent of the problem and determine whether any legislative changes in the procurement process are called for.
HEALTH INSURANCE AND PHYSICIAN C031PE-,\-SATI01q
The startling escalation of health care costs in the last decade is of major concern to the committee. In connection with this problem, it is argued that the current structure of health insurance systems, pricing practices within the medical community, and the impact of insurance on physician compensation have contributed to the disturbing rise in the cost of health care. The House Interstate and ]Foreign Commerce Subcommittee on Oversight and Investigations recently released a report documenting, for example, nomination of Blue Cross-Blue Shield plans by doctors, a matter of serious concern to this committee.
The committee will study the anticompetitive implications surrounding the provision of health insurance and health care. Hearings on this subject will be a top priority for the coming session.
'-e Supreme Court's opinion in Illinois Brick Co. v. Illinois, 431 IT.S. 720 (1977), bars indirect purchasers from bringing civil actions for damage against antitrust violators. Only direct purchasers of pricefixed goods are permitted to sue, and they may do so even if they have passed on all of the illegal overcharges to purchasers further down the chain. This means that since consumers (including Federal, State, and local governments) are usually indirect purchasers of the products they use, they are effectively barred from suing for antitrust violations that injure them.
This decision runs counter to long-established judicial precedent and defeats congressional intent in enacting the antitrust laws. It is fundamentally unfair because it bars those truly injured by antitrust violations from seeking relief in the courts while providing windfall profits to those who suffer no injury. Finally, the decision is troublesome because suits by indirect purchasers are critical to an effective antitrust enforcement effort.
Legislation has been introduced which would overrule the Supreme Court's holdincy in Illinois Brick and hearings on this bill have been scheduled.
The National Commission for the Review of Antitrust Laws and Procedures has recommended that the committee examine various proposals to eliminate the requirement that the Government prove that monopoly power was obtained or has been maintained by culpable conduct in equitable suits under section 2 of the Sherman Act. The proposals are aimed at persistent monopoly power which appears to exist in certain important markets in the United States economy and which, many observers believe, is not justified by demoinstrable efficiencies or economies of scale. The committee plans to hold hearings dealing with the serious questions raised by such proposals. Specifically., the committee will consider whether there exists substantial and persistent monopoly power unjustified by demonstrable efficiencies and whether any of the no-conduct proposals are likely to restore competition to such markets without discouraging business growth or undermining public support for the antitrust laws. If the committee is satisfied that a noconduct provision would be a meaningful addition to the Sherman Act, it will then conduct hearings on specific legislative proposals.
OIL COMPANY OWNERSHIP OF ALTERNAT VE ENERGY SOURCES
The continuing trend of oil company ownership of alternative energy sources raises serious antitrust concerns. The possibility is real that the development of various energy resources will be retarded, that energy prices will exceed competitive levels and that resources will not be efficiently allocated. The committee will continue to investigate oil company ownership of alternative energy resources.
OVERSIGHT OF DEPARTMENT OF JUSTICE AXTITRUST POLICY
The committee, in line with its responsibility to leslate and oversee the "protection of trade and commerce against umawful restraints and monopolies," plans to conduct at least two days of hearings for the purpose of examining the Department of Justice'ls Antitrust Division. Specifically, the committee intends to examine possible impediments to effective enforcement and to focus on possible solutions. whether they involve legislation in the form of increased appropriations or changes in substantive law, organizational changes in the enforcement agencies or changes in judicial machinery.
Because these hearings will be held in conjunction with the Department of Justice authorization bill, they must be held prior to May 15. In addition to the matters mentioned above, the hearings will provide a forum through which the committee can evaluate the first 2 years of the administration's new antitrust policies.
REPEAL OF THE MCCARRAN-FERGUSO\ ANTITRUST EXEMPTION AND
PROVISIONS TO ADVANCE EQUITABLE PRICING
Since 1945 the insurance indus-try has enjoyed virtually complete immunity from the Sherman. Clayton, and Federal Trade Commission Acts. Under its exemption, the industry has relied exten--vely on joint price-setting through industrywide rating bureaus. Testimony at
hearings of the Subcommittee on Citizens and Shareholders Rights and Remedies in January 1978 suggested that discriminatory and inequitable rating and underwriting practices have been a severe problem under the existing system of regulation. The recommendation of the National Commission for the Review of Antirust Laws and Procedures is to repeal the current antitrust exemption, replacing it with narrowly drawn, limited immunities for essential activities. Legislation combining the McCarran-Ferguson repeal with provisions to advance equity and availability is being prepared, and early hearings on this legislation are planned.
RETAIL PETROLEUM OPERATIONS BY OIL COMPANIES
The operation of retail gasoline service stations traditionally has been an area of economic activity oecuip)ied by independent businessmen and women. The great majority of these retailers (84 percent of stations in July 1978) are branded dealers for petroleum refining companies of various sizes; more than 70 percent hold dealerships for major oil company brands.
One of the striking developments since the OPEC oil embargo of 1973, however, has been a serious trend towards direct control of retail operations by refining companies. As independent branded dealers leases expire, more and more are being replaced by contracts hiring refining company employees as retail managers. Further, according to testimony presented to the committee by the National Con"ress of Petroleum Retailers, it is the attractive retail outlets which appear to be preferred targets for such takeovers.
Several States have enacted legislation to prevent or limit refiner operation of retail stations, and a number of others are considering such legislation. The (conmittee believes that there is a clear antitrust concern about the growth of refining company operation of retail facilities, heretofore the most competitive sector of the petroleum industry. The committee will examine this development in detail with a view toward holding hearings during the coming Congress.
VERTICAL INTEGRATION IN THE PETROLEUM INI)USTRY
During the 94th Congress, the committee considered and reported S. 2387, relating to the question of vertical integration in the petroleum industry. Events since 1976 have not ameliorated the concerns which many observers believe exist in this area. Accordingly, the committee plans to continue its study of vertical integration, with particular focus on two areas: (1) the control of pipeline transportation by integrated oil companies; and (2) the apparent trend among major oil companies to assume direct operation of their own retail outlets, displacing their lessee dealers who, as independent businessmnien, have been a competitive force in the market.
The Webb-Pomerene Act of 1918 provides antitrust ilmiunity for exports. Its purpose is to promote U.S. exports by equalizing the American firms' conipetitiv-e status vis-a-vis foreign cartels. The iminumity applies only wvwere there is no resiilting restraint, on any domes-
tic competitor of the association. The FTC has oversight responsibilities for Webb-Ponerene Associations, a function exercised sparingly over the past 60 years.
Recently, the National Commission for the Review of Antitrust Laws and'Procedures recommended further study of the Webb-Pomerene exemption. The language of the report is highly critical of the exemption in light of (1) anticompetitive spillover effects in domestic commerce; (2) the possibility of accomplishing the purposes behind Webb-Pomerene without providing antitrust immunity to the associations; and (3) the adverse impact on pro-competitive diplomatic initiatives.
The committee plans to investigate the questions raised by the Commission with respect to Webb-Pomerene and evaluate the usefulness of this measure to the economy as a whole in light of its potential anticompetitive effects.
MOTION PICTURE DISTRIBUPIMox PRACTICES
Historically, the motion picture industry has not been characterized by vigorous competition. Prior to World War II only five companies dominated the industry. Exclusive territorial arrangements for distribution and exhibition, pricefixing, and profit pooling were standard practices. In 1938 the governmentt charged these firms with conspiring to restrain trade and monopolizing the production, distribution and exhibition of movies. Ten years later five consent decrees were issued, known collectively as the Parpamount decrees. These decrees required the divestiture of domestic theater chains and prohibited various restrictive distribution practices. including fixing admission prices, pooling arrangements, and block booking.
Despite these prohibitions and the independence of theater owners, competition has been generally restrained during the 30 years since the issuance of the Pa,amouint decrees. Prices have continued to rise despite various downward pres:nres including theater overcapacity, the loss of moviegoers to television, and few new competitors have entered the industry.
There is disagreement as to why this has occurred. Some observers suggest that market power can be exercised as before because the majors still control the only nonsi bstitutable element in the industrythe movie itself. Others believe that the problem lies in the continuin, link between the production and distribution of movies. Independent theater owners charge that the Justice Department has failed to enforce the 1948 decrees. contending the discriminatory trade restraints in the distribution of films continue. WVhatever the case, the Paramovunt decrees may be ineffective remedies as much of the industry remains under virtual control of relatively few firms.
In the 96th Congress. the committee will review this area. focusing on restrictive practices and structural factors that continue to obstruct competition and diversity in the production and distribution of motion pictures. Hearings will be held and legislative proposals will be considered.
t PROFESSIONAL SPORTS
The committee will consider antitrust issues raised bv the current structure and operation of professional sports, particularly baseball, basketball, football, and hockey.
One of the committees primary areas of focus will be the limited availability and high price of tickets to sporting events. The committee will examine possibly anticompetitive league agreements which limit entry of new teams and the geographic mobility of teams already within a league. In combination, these practices limit the number of sports teams in a particular area, thus restricting the supply of tickets to the sports events in that area. The committee will investigate other possibly anticompetitive devices which limit ticket supply: the sale by some teams of tickets exclusively on a full-season basis, rather than game-by-game as well: and the refusal by some teams to sell regular season tickets without also selling tickets to exhibition games.
The committee will also consider professional baseball's antitrust exemption, which other sports, including football, basketball, hockey, boxing, golf, bowling, and softball do not enjoy; the 1961 Sports Broadcasting Act, which allows teams to pool their broadcasting rights, and thus sanctions a single seller of those television and radio rights, and practices which give a home team a greater share of gate receipts, thus enriching teams in major markets at the expense of those in smaller markets.
The committee will hold hearings on these matters and possible legis]ation will be considered.
CIVIL JUSTICE AND COURT REFORM
The Federal court law suit has become a major vehicle for making public and private powerholders accountable to the community. Numerous disputes in the areas of civil rights. defense of the environment. consumer protection, securities fraud. antitrust. safety, to name just a few, are being brought to the judicial forum. Rights previously ignored or unrecognized are being protected and advanced.
This large-scale resort to the courts has not cone unrestrained, however. Burgeoning caseloads have impeded judicial decisionmaking.
The Senate. President Carter. the Department of Justice, numerous scholars, lawyers and others have recognized the importance of maintaining free access to the courts for meritorious claims while relieving the courts of cases that do not properly belong there.
Last session, the committee analyzed several areas in which it appeared that the courts excessively narrowed access to Federal courts and scrutinized various proposals to reduce the Federal court workload.
"Standing" relates to whether a plaintiff has enough of an interest in a matter to warrant allowing him or her to sue. It is designed to prevent people who have no real interest in prosecuting a suit from maintaining an action. Recently the courts have been narrowing the class of person- entitled to z-ue through an increasingly restrictive definition of "standing."
In the 95th Congress the committee held hearings on the "Citizens Right to Standing Act." a proposal to eliminate some of the judicially created hurdles which litiants now face under the doctrine of 'standing." The hearings revealed complex issues concerning precisely what kind of congressional netion on -tandinog would be required to ensure all citizens access to the courts. That measure along with possible revisions, will be the subject of further committee hearings to resolve those issues in light of the developing case law.
"Class Action procedure; are designed to permit the aggregation of claims made by many litiQInts and which involve the same issues of law so that such claims can be more effectively resolved by the judicial system in a single law suit.
The 1966 amendments to the Federal Rules of Civil Procedure made substantial chaiicnges in Federal law governing class action litigation. However there are continuing problems with the management of class action suits in the Federal courts and widespread complaints that there are still too many barriers for groups of citizens with legitimate claims, who can only obtain meaningful access to the courts through the avenue of class action litigation.
In the 95th (Congress the conmittee held hearings on Justice Department proposals which would substantiallyv alter the Federal rules of class actions. The proposal would streamline the present complex requirements und(ler rule 23 of the Federal Rules of Civil Procedures, and it would also create a new form of "the public class action" to be brought by the Justice Department when individual damages are small, but widespread, and the primary public interest is in enforcement and deterrents rather than compensation. The committee held an exploratory round of hearings on the proposal in November 1978 and the bill has been the subject of extensive review and revision as a result of the comments received at that time.
In the 9Gth Congress the committee will take a comprehensive look at the Federal class action law and alternative proposals for improving the citizens access to the court through new forms of class actions.
Under "diversity" jurisdiction, claims arising under State law can be litigated in Federal courts if the parties to the case are residents of different states. ThIs a lawsuit arising out of an aitoimoiile accident involving citizens of Maryland and Virginia can be brought in the Federal court, even though there is not a Federal legal issue or interest in the case. The doctrine of "diversity" arose in a climate of fear that State courts would be prejudiced against another State's citizens litigating before them. It is argued that such fears are no longer justified and that cases based solely on diversity do not belong in the Federal courts. It is particularly important to recognize this now in light of the current strain on judicial dockets. Last session, the committee considered legislation to alter or abolish it. The committee will again hold hearings on legislation to abolish diversity jurisdiction.
MAGISTRATES AND COURT ANNEXED ARBITRATION
In the last Congress the committee worked on three proposals designed to reduce the present case load in the Federal courts, by providing alternative methods of resolving disputes kept at the Federal level.
In the 95th Congress the Senate passed a measure to enlarge the powers and jurisdiction of Federal magistrates in order to relieve the burden on Federal judges and speed the delivery of justice, especially in districts which currently have large case backlogs.
The Senate also passed legislation to provide for "Court-annexed Arbitration." Under this bill. TU.S. District Courts may adopt local rules authorizing the use of arbitration as a required first step in desienated categories of cases brought in the Federal court. The bill is designed to promote rapid, inexpensive resolution of disputes which do not require the full complex procedures of litigation in the Federal courts. lWhile arbitration in such cases would be mandatory. it would not be binding. The parties could subsequently seek a full judicial trial if necessary.
This spring the committee will review and process both of these measures for action, since they represent important opportunities to resolve disputes within the Federal system while preserving limited court resources for more complex legal issues which require judicial resolution.
DIsPuTE R-ESoiLUrn N A(,T
The committee has also addressed the problem citizens have in obtaining access to justice, particularly their need for alternative mechanisis to resolve minor disputes which are not particularly well suited for adversarial litigation. Last year the Senate passed the Dispute Resolution Act which would establish a national clearinghouse for information and technical assistance and which would provide Federal financial assistance to State and local groups to experiment with such alternatives. Various pilot programs already underway in several States have shown great potential for resolving minor consumer disputes far more rapidly and inexpensively than traditional litigation, while also promoting reconciliation of the parties and easing the strain on crowded State court dockets.
The committee will be reviewing and processing this legislation for reconsideration of the full Senate.
FEDERAL COURTS IM:PROvEMEN T ACT OF 1979
The "Federal Courts Improvement Act of 1979" will provide a basis for hearings on and committee consideration of numerous provisions designed to improve the administration and operation of the Federal courts.
The issues range from the creation of judicial councils to judicial discipline to the appropriate scope of diversity jurisdiction to the creation of a new limited jurisdiction United States Court of Appeals for the Federal Circuit. Relatively extensive hearings will be necessary to provide a sound basis for the Committee to consider each feature of the bill on its merits. Hopefully, this process can be completed early enough to obtain Senate consideration of the subject in the 1st Session of the 96th Congress.
FUTURE ROLE OF THE FEDERAL COURTS
Beyond these specific areas of legislation, the committee will be holding a series of hearings during the 96th Coniress on the future role of the Federal courts.
The upsurge in litigation will place substantial strains on the svstem, even with additional judges and some alternative mechanisms fr resolving disputes brought to Federal court. A fresh look is needed at the fundamental question of what should be the priority business of the Federal Courts in the eighties and how should that business be conducted.
IX at kinds of Federal questionls-both constitutional and stat utory-should have first call on the limited resources of the Federal system ?
Can new procedures be, designed for at least some of those matters vhich will remain in Federal court, which would permit their re-:oluion more efficiently?
How should one assess the impact on the courts of proposed leiilation which would create new causes of action ?
These issues are both complex and interrelated. The committee will be seeking the views of jurists. practitioners, scholars, and other interested parties to determine what additional areas of legislation or oversight are appropriate areas for congressional action.
Finally, the committee will review the state of access to justice in state and local courts. With due regard for the concerns of federalism and the more limited role for the Federal Government in this sphere, the committee will hold hearings on what leadership and assistance Congress can provide in such areas as the delivery of legal services and the cost of litigation, and nonlegal forms of dispute resolution.
The committee will hold hearings on proposals to reform the public and private employee pension system in a manner that would make it more responsive to the needs of pension beneficiaries. Witnesses from the Labor and Treasury Departments will be asked to assess proposals made by union officials and other private interests at hearings held by the Subcommittee on Citizens and Shareholders Rights and Remedies on November 21 and 22, 1978. The proposals were aimed at two primary objectives: requiring a passthrough of proxy voting rights to beneficiaries or beneficiary committees, and establishing the beneficiaries rights to channel pension fund investments into activities that would serve beneficiary interests.
RATE-OF-RETURN COST DISCLOSURE IN LIuE INSURANCE
Concerns have been raised about the ability of consumers to compare the true value of permanent life insurance with other savings and investment vehicles as well as the true costs and benefits of one life policy as compared with another. Problems arise, it is argued, because of the complicated actuarial task of computing rates of return on the savings elements of whole life policies and because of the proliferation of numerous minor variations among policies. Senator Hart, as Chairman of the Antitrust and Monopoly Subcommittee, introduced S. 2065 in the 94th Congress to deal with life insurance cost disclosure problems, but the measure was never enacted into law. Many still argue that a "truth-in-life-insurance" bill is needed to help allex-iate these problems and promote price competition in the life insurance industry.
Hearings on the subject of life insurance cost disclosure will be a high priority of the committee this session.
SFIAREHOLDERS RIGHTS AND CORPORATE GOVERNANCE
The committee is concerned about the plight of the individual shareholder in large corporations. The fact is, management has become increasingly independent and powerful, and individual shareholders have little or no ability to influence corporate policy and management, either directly at the stockholders meetings, or indirectly through his or her supposed representation on the Board of Directors. At the same tinme, we hear accounts of corporate misconduct and abuse that inevitably hurt both the shareholders and the conimunity in general.
Last session, the Subcommittee on Citizens and Shareholders Rights and Remedies investigated ways to strengthen corporate accountability, protect the rights of shareholders and restore public faith in corporate integrity. Hearings were held as well as extensive discus-
sion with the SEC and with many prominent members of the business community and the corporate bar. This session, the committee expects to continue investigations in this area. Additional hearings will be hold and various legislative approaches to the problem will be considered. The committee seeks a constructive solution which would strike a balance between the rights of the corporation's owners-the shareholders-and the needs of management to conduct corporate, business profitably.
The committee is responsible for monitoring and establishing policy regarding our system of criminal justice. These responsibilities include all matters related to criminal justice and oversight of those components of the Department of Justice related to criminal justice; any amendments to Title 18 of the United States Code; all matters related to components of the Department of Justice which investigate or prosecute violations of Title 18 or provide financial assistance to state and local criminal justice agencies; and, matters relating to corrections and sentencing including components of the Department of the, Bureau of Prisons, the Parole Commission, the Probation Service, the office of the United States Marshal and the Office of the Pardon Attorney.
FBI C hARTER
For more than a year, the Attorney General and the Director of the Federal Bureau of Investigation have strongrlv endorsed the idea of a statutory charter which would clearly define the investigative mandate of the Bureau in the United States. During the past five decades, the authority of the Bureau has gradually evolved and expanded without clear' or cohesive legislative approbation.
1)iiring the second session of the 95th Congress, a series of hearings was held by the committee which focused upon the need for a clear definition of the Bureau's responsibilities as well as for approved procedures for various investigations and investigative techniques. This need is all the more urgent as the Bureau begins devoting more of its resources to high priority investigations which utilize sophisticated techniques.
The charter will be the first comprehensive legislative determination of the jurisdiction and authority of the Bureau. It will attempt to balance the legitimate law enforcement needs of the primary Federal investigative agency with the constitutionally protected rights of the American people.
VICTrIMS OF CRIME
For the past several Congresses, the Senate has passed bills which would subsidize the cost of State programs which compensate innocent victims of crime for unreimbursed medical expenses and lost earnings resulting from a criminal act against them. Nearly half the States in the country have such programs in existence which compensate victims of both State and Federal crimes.
To date, congressional efforts to deal with the problem of crime in the United States have been focused upon improving various levels of the criminal justice system as well as concentrating on better care and increased rehabilitative efforts of the criminal offender. Except for isolated experimental programs, the victim of the crime has been all but forgotten. As a consequence, the victim has had to bear the economic burden, resulting from medical expenses and lost earning in
addition to the physical suffering and property loss. Currently, ~ percent of those injured during a crime absorb 91 percent or 20.523,296 of unreimbursed medical expenses.
Under the proposed legislation. States would be encouraged to establish victim compensation programs to aid these innocent citizens, and the Federal Government. as part of a comprehensive national criminal justice policy, would both encourage and assist States which have these programs.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 authorizes a warrant procedure for the use of electronic devices to intercept conversations during the course of a criminal investigation. These intercept devices. generally referred to as wiretaps or bugs, require installation after the court order is signed. WViretaps can be installed without enterting the targeted premises. but bugs require that the premises be entered in order that the bugs imay be installed.
A number of U.S. Courts of Appeals have reached conflicting results when deciding whether a separate entry provision or order is required before these bugs can be installed. There is also some question regarding whether a court has authority to enter such an order, absent a statutory authorization. The Supreme Court is currently considering this question.
The committee will examine this issue. and determine whether, consistent with protected privacy intere-ts, Title III should I e ameinded to provide for entry orders and define the specificity they should reasonably contain.
During the course of a criminal prosecution. the court must decide whether evidence, which the Government intends to introduce at trial. was seized in conformity with Fourth Amendmnent requirements. If the court determines that these requirements were not satisfied, the evidence is excluded from trial and may result in the dismissal of the criminal prosecution.
Some observers have expressed dissatisfaction with the procedure since the evidence is excluded regardless of how insignificant the Fourth Amendment violation or how important the evidence. Critics have suggested that the exclusionary remedy is sometimes disproportionate to the invasion. The committee plans to evaluate this rule to determine whether a different, vet an effective remedy for Fourth Amendment violations can be fashioned.
GRAND JUR Y REFORMi
During the past few years, the committee has held a number of hearings to deterinine whether the grand jury system. as it now operates, should be reformed. This effort has been addressed to correct reported abuses of the system as well as to make the system more independent and effective.
The grand jury system will continue to be studied with a view to eliminating the potential for invasion of protected rights of citizens while at the same time insuring that the legitimate investigative functions of the grand jury are not unduly restricted.
The Department of Justice has been reviewing the grand jury system to determine what changes can and should be made in the present process. These recommendations will be analyzed by the committee as part of its own study.
DEPARTMENT OF JUSTICE OVERSIGHT
Consistent with the committee's intention of holding "in-depth" oversight hearings on a limited number of agencies or divisions of the Department, it is anticipated that there will be intensive oversight of the Criminal Division during the first session of the Congress.
The committee also plans intensive staff work in preparation for indepth oversight hearings on the Drug Enforcement Administration (DEA) and the Office of Juvenile Justice and Delinquency Prevention during the second session. In that connection, the committee feels it is essential to begin, during this session, preliminary oversight hearings on the desirability of developing a legislative charter for the DEA. A complete examination of the Federal effort at drug enforcements is as well, long overdue.
The committee is committed to continuing efforts to improve the quality of juvenile justice and the prevention and control of juvenile delinquency. Preliminary hearings designed to examine the focus of our efforts in this area and the "return on investment" are planned.
COM PUTER FRAUD AND WHITE COLlAR CiUmE
Last year the committee conducted 2 days of hearings on S. 1766, Senator Ribicoff's computer fraud bill. This legislation has been the subject of extensive work by the staff and Senator Ribicoff has reintroduced the bill with a request that it be acted on promptly.
"GRAY IrAIL" LEGISLATION
Increased public awareness of the ability of defendants in national security cases to avoid prosecution or penalty by threatening to disclose classified material as part of their defense has created pressure on Congress to deal with the problem. In conjunction with the Department of Justice and the Intelligence Committee, the committee plans to conduct limited hearings on "graymail" legislation to be introduced by Senator Biden.
I NTER NATIONAL TERRORISM:
Concern over the Government's ability to respond to acts of international terrorism and an examination of the "machinery" in place to deal with such actions will be the focus of hearings to be held during the first session. The committee will consider mechanisms to deal with terrorism under current statutes as well as the question of whether specific legislation aimed at the problem is needed.
The committee plans to continue many of the initiatives previously undertaken in the area of juvenile delinquency. Of primary concern will be legislation to strengthen the deterrent effect of our drug laws. The committee also anticipates increased attention by Congress to the
issue of children's rights in this the International Year of the Child and plans to aggressively pursue legislative initiatives in this area as they relate to the jurisdiction of the committee.
PRISON REFORM AN-,D MODER-NIZATIO-N
The committee plans to continue work in the area of prison reform, particularly with regard to the question of providing financial assistance to State and local governments for construction of new and renovation of existing correctional institutions. The committee also will be dealing with the anticipated impact on operation of correctional programs that will result from changes in prosecution and dispositional policies assuming passage of Criminal Code reform.
TITLE 18 AmE N DM11EN TS
The committee expects to augment the work on Criminal Code reformn. It is expected that some 80 to 100 pieces of legislation having to do with amending Title 18 will be the focus of committee concern during the first session.
The administration plans to submit legislation dealing with motor vehicle theft. Hearings planned to determine the scope of legislation will address security for the vehicle and its parts, sentencing of off enders, standards for motor vehicle titles and salvage vehicle procedures.
THE~ CRIMINAL CODE REFORM ACT OF 1979
A new Federal Criminal Code Reform Act, using S. 1437 as it passed the Senate last Congress as the basic vehicle, will be introduced early in the 96th Congress. This measure represents a comprehensive revision and reform. of current Federal Criminal Laws.
It is anticipated that hearings on the bill will be held to suipplemient the 16 volumes of hearings conducted in the prior four Congresses. In addition to the massive work to update the bill and the 1,100 pagre committee report to reflect, for example, separate legislation enacted into law in the 95th Congress and new court decisions, the sucygestions and comments from Senators, the Federal agencies. and diverse interest groups will be considered. Processing the Criminal Code Reform Act will be one of the major projects of the committee in the 1st Session of the 96th Congress.
THE JUSTICE SYsTEmMN IMILPROVE-MENT ANCT OF 19 79
The Justice System Improvement Act of 1979 is an omnibus measure to revamp the Federal Law Enforcement Assistance program in the light~ of over 10 years experience under Title I of the Omnibuis Crime Control and Safe Streets Act of 1968 and to reauthorize the prc~ffram for 5 years.
Four days of hearings were held in the 2d Session of the 9.5th Congress on an identical bill as a prelude to considering the measure in the committee this Congress on an accelerated schedule within the deadline for enactment of Septem ber 30, 1979.
IMMIGRATION AND REFUGEES
Under the rules of the Senate, the committee has responsibility for overall immigration and refugee legislation and policy. In fulfilling this responsibility, the committee will continue its oversight functions, as in the past, as well as consider important new legislative and organizational proposals in the immigration and refugee field.
SELECT CoIMMISSION ON IM3MIGRATION AND REFUGEE POLICY
A major opportunity exists in the 96th Congress to begin the long overdue process of reviewing and reforming our Nation's immigration laws and practices. With the creation by Congress of a Select Commission on Immigration and Refugee Policy (Pub. L. 95-412), the Congress mandated that a 2-year study be undertaken of our Nation's immigration and nationality law. In securing the adoption by the Senate last October of this bill establishing the Commission, Chairman Kennedy stated the objective as follows:
* The time is past due for us to approach the revision of our
antiquated immigration law like we have approached the revision of the criminal code-to dump the old law, and start anew. To do this, we need to have an objective and thorough study of current !m1liration law and practice ... which must involve a broad spectrum of opinion and groups concerned with immigration reform. I would hope the Select Commission could begin functioning by the beginning of next year.
The Select Commission will be composed of four members of the Senate Judiciary Committee, four members of the House Judiciary Committee, four Cabinet officers-the Secretary of State, the Attorney General. the Secretary of Labor, and the Secretary of Health, Education, and Welfare-and four members to be appointed by the President, including' the chairman. The statute sets forth the Select Comin mission's responsibility "to study and evaluate . existing laws, policies, and procedures governing the admission of immigrants and refugees to the United States and to make such administrative and legislative recommendations to the President and to the Congress as are appropriate."
Specifically, the statute instructs the Commission to: "(1) conduct a stul y and analysis of the effect of the provisions of the Immigration and Nationality Act (and administrative interpretations thereof) on
(a) social, economic, and political conditions in the United States;
(b) demographic trends, (c) present and projected unemployment in the United States, and (d) the conduct of foreign policy; (2) conduct a study and analysis of whether and to what extent the Immigration and Nationality Act should apply to the Commonwealth of Puerto Rico, the Virgin Tslands, Guam, American Samoa, the Northern Mariana Islands, and the other territories and possessions of the
United States; (3) review, and make recommendations with repect to the numerical limitations (and exemptions therefrom) of the Immigration and Nationality Act on the admission of permanent resident aliens; (4) assess the social, economic, political, and demographic impact of previous refugee programs and review the criteria for, and numerical limitations on, the admission of refugees to the United States; (5) conduct a comprehensive review of the provisions of the Immigration and Nationality Act and make legislative recoiniIndations to simplify and clarify such provisions. ..
One of the primary concerns of the committee in the 96th Congress will be to assure the effective functioning and successful work of this Select Commission. The resources of the committee. and the time of its members and staff, will be made available for this purpose.
Pending this overall reform of the Immigration and Nationality Act of 19,52, it is the firm intention of the committee to review and consider other specific immigration bills that will contribute to the longer-tern effort of reforming the law.
REFUGEE REFORM N LEGISLATION
Building upon proposals introduced by Chairman Kennedy in previous sessions. the committee will work'closely with the executive branch, with representatives of the voluntary agencies, and with others, in developing proposals to reform the inadequate reflgee provisions of existing law. There is wide agreement over the need to establish a U.S. National Refugee Policy in law. which will treat all refugees equally; which will reflect our obligations as a signatory to the U nited Nations Refugee Convention and Protocol: relating to the status of refugees: which will enable us to fulfill our traditional humanitarian concern for refugees overseas, and which will rationalize our Nation"s policy towards the admission and assistance of refugees resettling in the United States.
1 NDOCUMFNTED ALIENS
Proposals have been repeatedly introduced in Congress in recent wears to address the issue of undocumented aliens in the United States. This issue will clearly be of urgent concern to the committee in the 96th Congress. However, all agree that this question is a large and complicated one. about which there are more questions than answers, and for which there are as many proposals as differing views.
The committee intends to address this issue forthrightly, and to consider all legislative proposals offered. and review all aspects of the issue, in an effort to deal with it in a responsible and humane fashion which reflects both the immigrant and humanitarian traditions of the American people as well as the economic and foreign policy needs of the United States.
NATIONALITY PROVISIONS OF LAW
The committee will again review a number of proposals to make more humane and just our laws governing the retention and conferral of American citizenship on American children born overseas.
OTHER LEGISLATIVE PROPOSALS
The committee anticipates considering a number of other major legislative proposals including repealing antiquated and unnecessary reporting requirements in the Immigration and Nationality Act that annually waste over $100,000 in paperwork, review of certain deportation provisions of law, Mexican-Canadian immigration quotas, and perhaps the current use and legal requirements surrounding the H-2 visa.
PRIVATE IMMIGRATION BILLS
Each year the committee is required to consider and process a large number of private immigration bills and adjustment-of-status cases, as well as a large number of cases referred to the committee by the Attorney General in which he has exercised his discretionary authority to waive certain provisions of the Immigration and Nationality Act, or his special authority to parole into the United States or grant conditional entries to certain refugees.
The committee will likely process and consider some 400 to 500 individual private bills and claims referred to it each session.
A major responsibility of the committee is to oversee the implementation of the Immigration and Nationality Act of 1952, as amended. Oversight responsibilities of the Immigration and Naturalization Service have consumed-and will continue to involve-extensive time and attention of the committee. In monitoring the implementation of United States law, and the complex administrative practices and procedures governing American policy in the immigration and naturalization field, in international migration, and related humanitarian affairs, the committee will maintain very close working relationships, on a daily basis, with the Commissioner of the Immigration and Naturalization Service, the Department of State, the Agency for International Development, and a range of international organizations and private voluntary agencies.
In addition to general immigration oversight, the committee will continue to give careful attention to responsibilites it has in international migration and refugee problems, as once embodied in its former Subcommittee on Refugees (as established by Congress within the committee in 1952). These responsibilities involve oversight of programs costing hundreds of millions of dollars, ranging from oversight of the Indochinese Refugee Assistance Program, the Lebanese parole and assistance program, the Cuban prisoner release program, the Latin American parole program, and other worldwide refuee assistance programs, such as in Southein Africa. Cyprus, Bangladesh, etc. These crucial assistance progrrams reflect the deep humanitarian concerns of many Americans and will remain a priority matter before the committee in the 96th Congress.
Broad constitutional questions and constitutional rights are amongfthe most critical issues faced by present and future generations of Americans. As citizens have become more conscious of the importance of their constitutional liberties, this increased public concern has been reflected in a steadily increasing volume of -work in the committee. The committee has a primary role in protecting the rights, privilege and freedoms guaranteed under the Constitution. During the coming sesSion, the committee will examine the following matters:
PROPOSED CO-NSTITUTIONAL AMJE--NMENTS
DIRECT POPULAR ELECTION OF =H PRESIDENT AND THE VICE PRESIDENT
The committee will again consider the proposed constitutional amendment to abolish the electoral college and "unit vote" system, and substitute direct popular election of the President and Vice President. The proposed amendment further provides that in the event that no candidate receives 40 percent of the popular vote, the President and Vice President will be elected in a run-off election between the two pair's of candidates receiving the highest number of votes.
Various plans to reform the electoral system have been the subject of extensive study and debate in the committee since 1966. In the decade that the proposal for the direct election of the President has been under consideration, arguments for and against the amendment have been carefully examined in committee. The questions raised by the proposed amendment have been reviewed and commented upon by the broadest range of individuals during the course of the many weeks of hearings and many days of floor debate on the measure.
The proposed amendment has been introduced again in the 96thi Congress and early action is planned. As is the case with all proposed constitutional amendments, extensive Senate debate is anticipated.
CONSTITUTIONAL LIMITS ON THE FEDERAL BUDGET
Public interest in constitutional means of balancing the budget continues to increase as evidenced by the growing number of resolutions from State legislatures calling either for congressional action or the convening of a constitutional convention to develop an amendment for a balanced Federal budget, numerous referendums on State ballots. and the increase in the number of legislative proposals introduced on thlis subject in the 96th Congress. Z
The committee will focus on two aspects of the balanced budget proposals: (1) the type of fiscal controls to be imposed; and (2) whether a constitutional amendment is the appropriate means of imposing limitations on Federal spending; and if so, should it be by congressional initiative or convention approach.
The committee will devote immediate and thorough attention to the economic and budgetary aspects of the various proposals to limit Federal spending. Early hearings are anticipated. Subsequently, the comnmittee will focus on the alternative amendment procedures in Article V of the Constitution.
CONSTITUTIONAL CONVENTION PROCEDURES
Article V of the Constitution provides two methods for initiating amendments to the Constitution: (1) Congress can propose an amendment by a two-thirds vote of both Houses, or (2) two-thirds or more of the State legislatures can petition Congrress to call a convention to consider proposed :amendments. Any amendment proposed by either Congress or a convention would, of course, require ratification by the legislatures or conventions called in three-fourths of the States. State legislatures have petitioned Congress to call a convention on a multiplicity of issues, from having a World Federal Government to requiring prayers in school, but at no time has the Constitutional Convention route been utilized for enacting amendments, nor do procedures exist for utilizing such an approach should Congress receive the requisite number of petitions.
In the 929d Congress, the Senate passed "The Federal Constitutional Convention Procedures Act," but that measure failed in the House. Since that time procedures for such a convention have been a matter drawing, considerable attention in the legal community. With the numnber' of petitions calling for a Constituional Convention steadily increasing, the committee will examine Congress' power to establish procedures to make such a contingency as smooth and as fair as possible. The subcommittee will consider, among other items, the following:
(1) Can one Congress bind a f uture Congress on procedures for the Article V alternative of a Constitutional Convention?
(2)) What constitutes a valid call by a State legislature for a Constitutional Convention?
(3) H-ow can Congress best maintain its records of the number of valid (petitions?
(4) Can Congress restrict the subject matter of such a Convention?
(5) Can Congress establish the procedures f or selecting delegates to the Convention?
(6) Can Congress establish the procedures of such a Convention?
(7) What role will the courts play in the Convention process?
ABORTION AND FREEDOM'N OF CHOICE
Under Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 197 0 (19 73), the. Supreme Court set f orth constitutional rights and restraints regarding abortion. The decisions generated enormous controversy. In 1974 and 197.5 16 days of hearings were conducted on proposed constitutional amendments to restrict or prohibit abortions. During the 95th Congress. four proposals addressi iifg preanancy termination and the rights of the unborn were referred to the committee. As is the case with all proposed constitutional amendments, the. commiittee responded to numerous inquiries from citizens and legislators, bothi at the State and Federal level. A continuation of these responsibilities dur-ingr the 96th Congyress is anticipated.
RIGHTS OF PRIVACY
LIMITATIONS ON THE USE OF POLYGRAPHS AND OTHER SUPPOSED LIE DETECTION DEVICES
The polygraph or "lie detector" has been promoted as an objective, scientific method for separating truth from falsehood. In the 50 years that the polygraph machine has been in use, serious questions persist as to its accuracy and reliability, and the threat it poses to constitutional rights. Yet, the technique has grained widespread acceptance for purposes of employment and pre-employment screening.
In 1974, the committee published a staff report entitled "Privacy, Polygraphs and Employment." That report examined the use of the lie detector as a general surveillance device, its effect on individual rights and privacy, and recommended that lie detection be banned in the employment setting. A similar recommendation was made in the final report of the Privacy Protection Study Commission in 1977. .On the basis of the materials collected in the course of these inqiiiries, polygraph legislation under consideration in the committee since 1967, was refined and reintroduced. The committee anticipates early action on the current proposal to prevent the indiscriminate use of the polygraph or similar tests in both the Federal and private sectors when used for pre-employment screening purposes or as periodic checks on employees.
POLICE SEARCHES AGAINST NONSUSPECTS
The question of whether a search warrant or a subpena. is required for law enforcement officials to conduct searches of a person's business or home for evidence of a crime when that person -is not suspected of involvement in the crime, was decided by the Supreme Court in Zurcher v. Stanford Daily. There the Court upheld the legality of an unannounced search of a newspaper office, ruling that the search was not unreasonable under Fourth Amendment standards and found no constitutional basis f or a subpena, first requirement for third party searches. The committee immediately began consideration of various legislative responses to the Court's decision. The proposals ranged from protecting all third parties from unannounced searches to protecting only the press.
On December 13, 1978, the President announced that in view of the threat posed to the press by the Stanford Daily decision. the administration would submit legislation early in the 96th Congress to prohibit searches for the "work product" of persons preparing materials f or diSsemination to the public.
The committee staff has been in close contact with the special task force under Attorney General Bell, which is drafting the administration's bill. Hearings are anticipated early in the first session to consicier the Justice Department's proposal to protect First Amendment materials, as well as other measures which world extend protection beyond the First Amendment to "confidential" relationships. recognizedi at law., such as lawyer-client and doctor-patient relationships, and perhaps even to all third parties. The constitutional and practical problems posed by such legislation, its effect on lawv, enforcement, and its coverage of state and local law enforcement officials are complex issues which will require considerable attention (luring this session.
Following the Supreme Court's decision in 1972 in Branzburg v. Hayes, 408 U.S. 665, the committee held several days of hearings on the issue of Federal Reporters' Shield legislation. At that time efforts to agree on an approach to shield laws failed, because of the widely differing opinions on this issue within both the media and legal comnmiunities. However, because of the ongoing study of this issue as well as renewed interest in shield legislation as a result of the incident involving New York Times reporter, Myron. Farber, the committee intends to conduct hearings on this issue in the upcoming session.
CAMERAS IN THE COURTROOM
An important issue that the committee has followed for some time is the access of the electronic media to courts and judicial proceedings. Increasingly, State courts are relaxing their once almost total exclusion of cameras from courtrooms. Within guidelines issued by courts, electronic media has been granted access to a variety of both appellate and trial court proceedings. The committee intends to continue to monitor these trends and their First and Sixth Amendment implications.
The proposed Judicial Tenure Act, providing for removal of Federal judges by other members of the judicial branch for conduct contrary to the "good behavior" clause of Art, III of the Constitution., was passed in the Senate on September 7, 1978. A similar measure died in the House. Serious constitutional questions were raised during consideration of the bill, which were registered in dissenting views in the Judiciary Committee report on July 24, 1978, as well as in debate on the Senate floor. New legislation offering alternative means of disciplining Federal judges will be introduced early in the 96th Congsess, along with the Judicial Tenure Act. Several clays of hearings on these measures focusing on the pertinent constitutional issues are anticipated.
The constitutional, legal and ethical questions of separation of power's concerning the judicial branch and its involvement with issues of pending or proposed legislation is again before the committee. A staff study is underway with hearings or a report anticipated after completion of the study.
SPEEDY TRIAL ACT
The 93d Cong(_ress enacted the Speedy Trial Act of 1974 (Pub. L. 93-619). This law requires that Federal criminal defendants be tried within 60 days or have their charges dismissed. The 60-day requirement would be phased in over a 5-year period in the trial of Federal criminal cases. The act also creates model pretrial service agencies,
and requires the establishment of comprehensive speedy trial plans and planning groups in each judicial district. Barring congressional action, the act's sanctions will go into effect in July 197i9. It will be a major task of the committee to assess whether cong-ressional action to delay the implementation date is necessary.
The act assumes careful congressional review of its implementation, and the committee is presently engaged in this oversight. JudgTes.prs ecutors, and defense counsel with experience in the implementation of the act were surveyed on how the act was working. The committee also requested the General Accounting Office to undertake a complete audit of the various pre-trial service agencies established under Title I of the Speedy Trial Act. In addition, the GAO will report on the implementation of timeframes of the speedy trial provision set out in Title I of the act. This review is in progress and a draft of the report will be available shortly. Hearings scheduled for early spring, will focus on the GAO report as well as' suggestions for amendments to the Speedy Trial Act recommended by the Administrative Office of the U.S. Courts, the Department~ of Justice, the National Association of State Attorneys General, and other organizations.
CIVIL AND CONSTITUTIO-NAL RIGHTS
RIGHTS OF INSTITUTIONALIZED PERSONS
The committee has under consideration a bill to empower the U.S. Attorney General to seek judicial enforcement of fundamental Federal rights of persons residing in State and local institutions. Specifically, the legislation would authorize the Attorney General to initiate or intervene in lawsuits to redress pervasive andf systematic deprivations of institutionalized citizens constitutional an'd Federal statutory rights.
During the 5 days of hearings held in June and July of 1977, over 40 witnesses t estifiedi, including former institution residents, superintendents of mental and penal f acilities, experts in mental health, mental retardation, penology, and public health, administrators of State departments of mental health and corrections, State attorneys general, judges, lawyers, officials from the Department of Justice, and representatives of groups interested in the care of the institutionalized.
Some witnesses, notably the State Attorneys General, expressed concern that the bill as originall 'y drafted contained insufficient safeguards to protect State and local officials from precipitous action by the Justice Department. The bill was amended to ensure ample opportunity for pre-suit notification and consultation between State and Federal officials.
Further hearings in 1979 are planned.
CIVIL RIGHTS ACTS OVERSIGHT
One of the committee's primary responsibilities is to scrutinize the fundamental civil rights issues f acingr our N ation. These issues include voting rights,* school desegregation, the Omnibus Civil Rights Acts of 1960, 1964 and 1968 -and their enforcement effort, attorneys fees in civil rig-hts cases, and the Civil Rights Commission (established by the Civil Rights Act of 1957). Substantial effort will necessarily be
devoted to continuation of the oversight and public information responsibilities in this area, including specifically the effects of proposed Internal Revenue Service regulations concerning tax exemptions for private schools which may be suspected of racial discrimination.
U.S. COMMISSION ON CIVIL RIGHTS
The committee's oversight responsibility for the U.S. Commission on Civil Riohts last Congress focused primarily on extending the life of the Commission for an additional time period. The U.S. Comnmission -on Civil Rights is an independent, bipartisan, fact-finding agency created by the Congress in 1957 to investigate deprivations of votng rights, and equal protection of the laws, to appraise the laws
policies of the Federal government with respect to equal protection of the laws, and to report its findings and recommendations to, Congress and the President. The Commission's life has been extended five times since its first report in 1959, most recently in 1978, following
4 days of hearings by the, committee.
Continued oversight of the Commission's activities during the 96th Congress. 4.nd an examination of its broadened mandate are scheduled.
The, committee's continuing interest in citizen access to the courts. has focused on the Federal court's awarding of attorneys fees to-preva ilin g parties in cases involving constitutional rights. Two major pieces of legislation in this field have been considered by the committee: the Civil Rights Attorneys Fees Act of 1976, and S. 571, the HITD Attorneys Fees Act. As'a result of this latest series of hearings, the committee is planning to consider major revisions (including the, award of attorneys fees) to Title VIII of the, Civil Rights Act of 1968, comm-only known as the Fair Housing Act, and has scheduled 3 days of hearings this session.
The enforcement of the 1965 Voting Rights Act, as extended and expanded by the 19 75 amendments. continues to require much committee effort and involvement. Presently under examination are administrative questions which have arisen in connection with the voting survey -which the law requires the Bureau of the Census to conduct. A11soa under analysis are various proposals to repeal or amend the law, inchuding amendments to alter the application of the act to "language minorities" and to repeal certain provisions of the act's coverage formula and minority langcuage coverage section.
The committee will also concentrate its oversight activities of the act on the Justice Department's enforcement of the la~w and the effect of that enforcement.
RIGHTS OF CHILDREN
For the past several years. the committee has undertaken a number of investigations to study wide-ranging juvenile related problems and to recommend legislation to help alleviate them. The committee will continue its efforts to ensure that the various departments and agencies, of the Federal Government administering youth-oriented pro-
grams do so as fairly and effectively as possible and with as much cooperation and coordination as is feasible. The main focus of the committee's work will be in the following areas: (1) prevention and control of juvenile delinquency and crime; (2) the breakdown of the family structure and its relationship to juvenile delinquency; (3) school violence and vandalism; (4) interstate traffic in children; (5) young female delinquents, and (6) television violence and youth.
The committee will conduct oversight hearings on the implementation of various provisions of the Juvenile Justice and Delinquency Prevention Act at the Federal and State level, such as issues of deinstitutionalization, separation of juveniles from adults in correctional facilities, monitoring of facilities, research efforts in so-called "priority programs," "maintenance of effort" provisions, and organizational partitioning within the Law Enforcement Assistance Administration. The committee will also hold hearings and draft legislation to reauthorize the law which expires in 1980.
DISCRIMINATION AGAIN ST THE ELDERLY
The committee intends to hold hearings in late 19 79 addressing discrimination directed against the elderly. These hearings will not only investigate areas where discrimination may exist, but also attempt to determine whether new legislation is needed in light of conclusions reached by the Civil Rights Commission and others.
ADMINISTRATIVE PRACTICE AND PROCEDURE
Enacted 30 years ago, the Administrative Procedure Act (APA) was intended to set the minimal administrative procedural requirements for administrative agencies. It was expected that as agencies and administrative law developed, the law would be changed. Yet the basic procedures of the APA have remained substantially unchanged for 30 years. The same is not true, however, about the impact on the American public of the regulatory process. It has grown dramatically, with rules and regulations promulgated through the rulemaking provisions of the APA affecting virtually every aspect of our lives. This has, in turn, lead to loud cries for "regulatory reform" from almost every quarter,
In the 96th Congress, the committee will examine ways in which to reduce Government regulation without jeopardizing the interests it was designed to protect. The committee will focus on both structural or substantive changes of Federal agencies and changes in the APA to require agencies to proceed more fairly, openly and responsively in their duties.
REFORM: OF AJDMINISTRATIVE PROCEDURE ACT
During the 96th Congress, the committee will hold hearings on a number of proposals to amend the Administrative Procedure Act to expedite and approve agency adjudications, rulemaking, ratemaking and licensing. Specifically these bills would require agencies to analyze the economic impact of a proposed rule and to consider various alternatives during the rulemaking process; to set time schedules and deadlines for their proceedings; to clarify the power of agencies to limit oral, direct and cross examination; to authorize administrative law judges to grant summary judgment motions; to give subpena power to all agencies to expedite discovery; to grant agencies the power to enforce their subpenas through civil fines or court proceedings; to authorize all agencies to establish appeal boards, and to provide for some form of congressional oversight of agency rulemaking procedures.
REGULATORY FLEXIBILITY ACT
As a means of reducing the Federal regulatory burden on small business, the committee will again consider the Regulatory Flexibility Act. This measure passed the Senate too late in the 95th Congress for the House to act on the bill prior to adjournment.
The Regulatory Flexibility Act would require Federal agencies to tailor their administrative procedures to the size and needs of various groups to ensure that these administrative procedures do not place any unnecessary burdens on individuals, small businesses, small units of Government, or small organizations. To accomplish these ends, Federal agencies would be required to seek greater participation of affected groups in formulating rules, and to solicit and consider less costly
regulatory alternatives which would meet the legislatively established goals of the regulations. Any agency which rejected a less expensive alternative would have to. explain why it did so. Also any proposed regulations which create significant paperwork demands would be subject to public comment, including suggestions for less burdensome approaches. Finally, the bill provides for periodic review of agency rules to evaluate their continuing validity.
Early legislative action is planned on this measure.
PUBLIC PARTICIPATION IN FEDERAL AGENCY PROCEEDINGS
At present many citizens are excluded from effective participation in government decisionmaking because of the high cost of making useful presentations to Federal agencies. This frequently results in a failure by Federal agencies to consider fully the public impact of agency decisions and a feeling on the part of many Americans that effective participation in government decisionmaking is the exclusive province of well-heeled special interests.
In response to this problem, the committee will continue its consideration of legislation that would: (1) permit Federal agencies to pay 'the costs of citizens and citizen groups in agency proceedings if such participation can reasonably be expected to contribute substantially to a fair determination of the proceeding and if the citizen groups do not have sufficient resources available to participate effectively. and (2) authorize Federal courts to award attorneys fees to persons who bring suit for judicial review of agency action if the person is successful and if such suit serves an important public policy.
During the 94th Congress, legislation regarding this matter was favorably reported to the floor, b3ut the Senate did not have an opportunity to act on the bill prior to its final adjournment. During the 95th Congress, a similar bill was considered by the Judiciary Committee, but the committee failed to report the bill on an 8 to 8 tie vote. During the last few years, however, seven Federal agencies have administratively established. public participation funding programs .and two more agencies are in the process of establishing such programs. During the 96th Congress, the committee plans to give further consideration to instituting ,such programs in all Federal agencies.
The committee is responsible for oversight of the Administrativ e Conference of the United States. This body, established in 1968, is charged with responsibility to "study the efficiency, adequacy, and fairness of the .. procedures used by administrative agencies" and make recommendations for any necessary improvements to protect more fully private rights and perform more expeditiously public responsibilities. The Administrative Conference reports its conclusions directly to the agencies, the President, Congress, or the Judicial Conference of the United States.
One of the major reports which will be submitted to Congress in the next 2 years is the Conference study of the new Federal Trade Commission rulemaking procedures. The study mandated by the Magnuson-Mloss Federal Trade Commission Improvement Act, will
be considered by the plenary meetings of the Conference in June and December 1979. A section of the rep-ort is expected to focus on FTC pol icy of compensation for public participants. In view of the committees interest in public participation in agency proceedings, the report will be given careful consideration.
In a time when regulatory reform is of critical concern, the committee will examine the working of the Conference to assure that its potential for contribution is maximized. It is anticipated that the committee will explore proposals for strengthening the body and expanding its mandate during the 96th Congress.
GOViERNMENT INFORMATION POLICIES
FREEDOM OF INFORMATION ACT
The committee has jurisdiction over the Freedom of Information Act (FOJA), which provides the public access to Federal Government information. In exercising that responsibility during the last Congress, the committee issued a summary report of hearings on agency implementation of the 1974 amendments to the Freedom of Information Act, monitored proposed legislation pertaining to the act, surveyed agency FOJA fee waiver practices, and published a compilation of State f reedom, of information laws.
During the 96th Congress, the committee will examine administrative and statutory changes that could minimize the problems of long delays in responding to requests; arbitrary imposition of excessive fees; and unexplained denials or deletions, and also help create incentives for agencies to administer the Act so that its promise becomes a reality. Additionally the committee will continue to monitor proposed FOJA legislation which, directly or indirectly, would dimninish the public's right to Government information. Included are bills which result in exempting certain agencies or programs from FOJA requirements or otherwise affect the amount of information that would be available under the FOJA.
In overseeing the practices and procedures of governmental agencies, the committee has long been concerned with the adequacy of agency efforts to protect the civil liberties and due-process rights of
citizens. During the last Congress, the committee began a review of the Government's use of computerized information for purposes unrelated to the reason for which it was collected. This review focused on the Tax Administration System of the Internal Revenue Service, the National Crime Information Center of the FBI, and various computer operations of the Civil Service Commission and the Department of Health, Education and Welfare. During the 96th Congress, the committee will continue to monitor the rapid increase in Government computer banks to ensure that privacy considerations are adequately protected.
FEDERALTORT CLAIms ACTAmENDMENTS
During the second session of the 95th Congress, a report was prepared for the committee on the Justice Department's policy of hiring
e vate counsel to represent Federal employees in civil lawsuits al'ging violations of constitutional rights. The report concluded that the practice was subject to the following criticisms: lack of statutory authority to retain private counsel who are independent of department control; independent private counsel may raise legal arguments which are, -contrary. to the public interest; the practice may interfere with criniinal investigations of the same conduct; and the practice is extremely expensive.
As an alternative to that policy, the Department proposed amendments to the Federal Tort Claims Act which would immunize Federal employees, and provide an exclusive cause of action against the United States in cases in which the Attorney General certifies that the Government employee in question was acting within the scope of his or her "office or employment or under the color thereof."
During the committee's consideration of the measure, the primary obj section to the proposal was to the grant of blanket immunity to Fed'eral employees no matter how egregious their conduct. In the wake of the Watergate and intelligence community excesses, many witnesses expressed the view that some method of accountability for individual actions must be maintained.
Following the hearings and extensive discussions with the Department of Justice, a substitute proposal was developed to provide for a more limited form of immunity as well as internal agency disciplinary mechanisms. Unfortunately the session ended before the commit.tee could take final action on legislation. Amendments to the Federal Tort Claims Act will again be considered in the 96th Congress.
APPLICABILITY OF ANTITRUST PRINCIPLES
The committee will examine the extent and effects of existing antitrust imnmnities in selected regulated industries including the motor carrier, freight for-warder, rail, ocean shipping and insurance industries. Legislative proposals will be considered 'which reduce or elimiiiate such immunities.
By permitting, private restraints of trade in the industries where they apply, antitrust immunities tend to reduce competition, limit output and increase prices. The result is not only an inefficient allocation of resources; in addition, inflation is fueled by higher prices, employment, is lost as a result of restricted output, and consumers pay unnecessarily high prices for their goods and services.
Hearings held last year by the Judiciary Committee indicated that consumers paid approximately $2 billion a year in higher prices as a result of the antitrust immunity in the motor carrier industry alone. Those hearings resulted in legislation to be considered in this Congress to apply the antitrust laws to the motor carrier industry so as to make illegal the price-fixing that is presently allowed.
MOTOR CARRIER INDUSTRY
For the past 18 months, the committee has been involved in an extensive investigation of anticompetitive practices in the trucking industry. Initiated by Senator Kenned 'y during his tenure as Chairman on the Antitrust and M-onopoly Subcommittee during the 95th Congress, the investigation has focused on private restraints on competition in the form of legalized price-fixing agreements by freight motor carriers under a statutory grant for immunity from the antitrust laws. These price-fixing arrangements, through which motor carriers are permitted to set uniform rates for commodities moving in interstate commerce for submission to the Interstate Commerce Commission, result in higher charges for f reight transportation than would be the case if prices were openly arrived at through competition in an open market.
The committee has also examined the system of "public" restraints on competition w hich affect prices f or motor carrier services. These include the effectiveness of the ICC in scrutinizing rate proposals submitted by the motor carrier rate bureaus. They have also included, to a very limited extent, the effect on rate levels of ICC restrictions on
entry into the trucking business. The committee has been particularly concerned with unjustified revenues derived by holders of ICC route certificates who operate little or no equipment, yet who take a sizable percentage of the revenues earned by noncertified independent truckers who actually haul the freight under lease to the certificate holders.
The committee's inquiry thus far has pointed up the central importance to the maintenance of price levels in the industry of the antitrust
immunity which sanctions price-fixing by motor carriers. The committee intends to consider legislation to curtail drastically the scope of this exemption from the Nation's antitrust laws.
COMPrETITION IMPROVEMENTS ACT
The Competition Improvements Act -which the Judiciary Committee considered in both the 94th and 95-th Congresses (and which will be considered by the committee this Congress as well) is an attempt to deal generally with the problem of government regulations which impede rather than promote competition. The Competition Improvements Act, which is cosponsored this Congress by Senator Kennedy and Senator Hatch of the Judiciary Committee, was recently endorsed by the President's National Commission to Review Antitrust Laws and Procedures. The Act prohibits the imposition of anticompetitive regulations unless the agency involved finds that the regulation is essential to accomplish an overriding statutory purpose and that there is no less anticompetitive regulation that would essentially accomplish that purpose.
ANTIGOaMPETiTivE EFFECTS OF GOVErNM3ENT REGULATION
By eliminating and reducing existing antitrust immunities, the committee hopes to reduce existing private restraints of trade in regulated industries. The committee -will also address the Government imposed restraints of trade that result f rom. anticompetitive~ regulations.
For example, it is estimated that in addition to the $2 billion cost of private price-fixing in the motor carrier industry, Government regulations cost consumers an additional $3 to $5 billion a year.
DEPARTMENT OF JUSTICE AUTHORIZATION AND OVERSIGHT
The American people have traditionally been concerned with the effectiveness of the criminal and civil justice systems and the quality, of justice they render. There are increasing demands for greater efficiencies in Government and more targeted use of public resources. These two concerns, although not necessarily inconsistent, render the need for thorough oversight all the more crucial.
The Judiciary Committee is determined that the justice process will remain a firm!and fair force in our society. To that end, it -will respond to these challenges by instituting a series of oversight hearings on the Department of Justice, its programs and their performance.
The first series of hearings will focus on the performance and resource needs of the Department of Justice and its organizations and will result in authorization legislation in mid-spring. The second series of hearings will focus on key justice issues, addressing the impact on these issues by the Department of Justice s various organizations..
The Investigations unit of the Committee is assigned to provide the Committee with support in any area of inquiry deemed necessary and appropriate by the committee. Thus far, the following inquiries are underway for the first session of the 96th Congress: (1) Committee confirmation of executive branch nominees to the Federal bench; (2) evaluation of policy, procedure and administrative practice within the Antitrust Division, Department of Justice, in the handling of complaints, investigations and litigation; (3) analysis of the effects of the Department of Energ-y's policy, procedure and administrative practice on competition in the energy industries; (4) continuing investigative support of an ongoing inquiry into Federal regulation of the freight motor carrier industry; (5) continuing inquiry into the policy, procedure and administrative practice in Federal regulation of pesticides, and (6) continuing inquiry into the policy, procedure and administrative practice of the Food and Drug Administration in the regulation of foods, drugs and cosmetics.
It is anticipated that additional assignments will be undertaken as the first session of the 96th Congress progresses.
UNIVERSITY OF FLORIDA 3 1262 09119 8837