H.R. 2267 -- DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE,
THE JUDICIARY, AND RELATED AGENCIES APPROPRIATIONS BILL, FY 1998
(Sponsors: Livingston (R), Louisiana; Rogers (R), Kentucky)

The Committee has developed a bill that provides requested funding for many of the Administration's priorities. For example, we appreciate the Committee's funding of law enforcement programs in general and the COPS program in particular. Funding COPS at the requested level of $1.4 billion is consistent with the Bipartisan Budget Agreement and would enable us to achieve the goal of hiring 100,000 additional police officers by the year 2000.

As discussed below, the Administration will seek restoration of certain of the Committee's reductions. We recognize that it will not be possible in all cases to attain the Administration's full request and will work with the House toward achieving acceptable funding levels. The Administration is committed to working with the House to identify reductions in the bill in order to find offsets for the restoration of funds that the Administration seeks. For example, funding could be reduced for the Local Law Enforcement Block Grant and the new Juvenile Justice Block Grant. We urge the House to reduce funding for lower priority programs, or for programs that would be adequately funded at the requested level, and to redirect funding to programs of higher priority.

The Administration is particularly concerned about the objectionable funding level provided for the Legal Services Corporation and language that would prohibit any funds from being used for activities related to the design, planning, testing, or implementation of sampling in the 2000 Census, and would further require the passage of an authorization bill prior to the expenditure of more than $100 million for any 2000 decennial planning operations. In addition, the Hastert amendment, approved by the Rules Committee, would effectively ban sampling in the guise of providing for judicial review. If the bill presented to the President were to contain the funding level provided in the Committee bill for the Legal Services Corporation or the restrictions on Census activities in either the Committee bill or the Hastert amendment, the President's senior advisers would recommend that the President veto the bill.

To date, the Administration has been working with the Appropriations Committees to include items contained in the Bipartisan Budget Agreement in the FY 1998 appropriations bills, in the hope that these issues could be worked out. We are concerned that several of these and other priority issues are not being resolved in a satisfactory manner. If these issues are not resolved satisfactorily, the President's senior advisers would recommend that he veto the bill.

Department of Commerce

• Census Sampling -- Committee provision. The Administration strongly opposes the Committee's language that would prohibit any funds from being used for activities related to the design, planning, testing, or implementation of sampling in the 2000 Census, and would further require the passage of an authorization bill prior to the expenditure of more than $100 million for any 2000 decennial planning operations. This represents an unprecedented and unacceptable attempt to micromanage the decennial census. Such restrictions would seriously undermine decennial census planning operations, especially with regard to address list development, procurement, and the 1998 Decennial Dress Rehearsal. The President's senior advisers have indicated that they would recommend that the President veto the bill if it were to contain this provision.

  Census Sampling -- Hastert Amendment. The Administration also strongly opposes the Hastert amendment because it effectively bans sampling in the guise of providing for judicial review. The Hastert amendment would prohibit the Census Bureau from expending any funds on planning, preparing or testing for the use of sampling after a civil action is filed until the Supreme Court has determined that sampling is constitutional and authorized by statute.

  First, the Administration is concerned that the amendment's requirement for a final Supreme Court endorsement of sampling prior to any planning, testing or use of sampling in the 2000 census would simply act to ban sampling for the census. For example, the amendment does not satisfy constitutional standards for standing. The Supreme Court has required that a plaintiff must have suffered an injury that is "concrete and particularized." It is unlikely that those defined as "aggrieved parties" will be deemed to have the requisite injury to satisfy Article III. In the recent legislative veto decision, for example, the Court found that members of Congress did not have standing to challenge that statute. Raines v. Byrd, 117 S.Ct. 2312 (1997). This limitation is jurisdictional, cannot be waived, and can be raised by the Court on its own.

  Moreover, the Supreme Court held in 1992 that it could not rule on legal challenges to the Census Bureau's actions until after the President sends the census numbers to Congress. Franklin v. Massachusetts, 505 U.S. 788 (1992). There is thus a serious question as to whether the Court has the power to rule on the merits of a census before the results of that census are finalized. Given these problems, subsection (d)(2)'s requirement of a judicial endorsement of sampling effectively prohibits sampling.

  Finally, the Hastert amendment would likely lead to complicated, lengthy, and complex litigation highly unlikely to be resolved in a time frame to permit planning, testing, and use of sampling. Litigation is not consolidated in any one district, there is no deadline for filing suit, and no limit on the number of suits that may be filed. The Court will therefore be required to hear numerous appeals. This problem is magnified because virtually every United States citizen is an "aggrieved party," given a cause of action and an appeal of right to the Supreme Court. Denying funding during this potentially lengthy judicial process would effectively prevent use of sampling in the 2000 census.

  For all these reasons, the President's senior advisers would recommend that the President veto the bill if it were to contain the Hastert amendment.

  Census sampling -- Mollohan amendment. Without the limited use of sampling, the accuracy of the census would decrease significantly, especially with regard to children and minority groups that have traditionally been undercounted. The National Academy of Sciences, the General Accounting Office, the Commerce Department Inspector General, and the vast majority of the professional statistical community support the use of sampling in the decennial census. The Administration remains committed to working with Congress on this important issue, and supports the Mollohan amendment concerning Census 2000. In addition to striking the bill's restrictions on sampling, the Mollohan amendment would create a commission to monitor decennial census preparation and implementation and would periodically report on whether any part of the process had been manipulated so as to favor any region or group.

• National Oceanic and Atmospheric Administration. We are disappointed that the Committee bill would provide only $8 million of the $22 million requested for the President's Clean Water Initiative, which helps protect coastal communities from pollutants. The National Oceanic and Atmospheric Administration (NOAA) is the primary trustee of our Nation's coastal resources and, as such, plays an important role in this initiative. The $22 million initiative builds from NOAA's unique coastal responsibilities and partnerships with States and other Federal Trustee agencies. In addition, we are disappointed that the Committee has not included any funding for the Global Learning and Observations to Benefit the Environment Program (GLOBE). This program was developed to increase understanding of the Earth and has already formed partnerships with over 2,500 U.S. schools and 35 other countries, involving thousands of students across the U.S. and worldwide. The Committee is recommending over $30 million in funding for NOAA activities not requested by the Administration. We strongly urge that a portion of these funds be redirected to continue the Clean Water Initiative, GLOBE, and other priorities such as fisheries conservation and management.

• National Institute of Standards and Technology (NIST). The Administration greatly appreciates the overall funding level for NIST and the Committee's support of the Bipartisan Budget Agreement. However, we strongly urge the House to drop language restricting new Advanced Technology Program awards and to adopt language allowing continued Federal funding for Manufacturing Extension Centers beyond six years, as was passed by the House in H.R. 1274. The Administration strongly opposes the Hostettler amendment, which would eliminate funding for the Advanced Technology Program.

• National Information Infrastructure (NII). The Administration urges the House to reallocate resources between the NII grants program and the Public Broadcasting Facilities program. The Committee mark substantially reduces funding for the former and provides a large, unrequested increase for the latter. The NII program is meritorious, providing seed money for innovative projects that deploy, use, and evaluate advanced telecommunications and information technology.

The Administration finds the Committee bill's funding level for the Legal Services Corporation (LSC) unacceptable. The bill would fund the LSC at $141 million, $142 million below the FY 1997 enacted level and $199 million below the President's request of $340 million. The amount that the Committee bill would provide, 65 percent below the FY 1995 level of $400 million, would cripple the program and call into question the Federal Government's commitment to ensuring that all Americans, regardless of income, have access to the judicial system. The Administration strongly urges the House to fully fund the President's request. The President's senior advisers would recommend that he veto the bill if it contained the funding level in the Committee bill.

Reimbursement of Legal Fees

The Administration strongly opposes the Hyde amendment that would require the United States to pay attorney's fees and litigation costs to "prevailing parties" in federal criminal cases, unless the Government can demonstrate the case was "substantially justified." This would have a profound and harmful impact on the Federal criminal justice system. It would create a monetary incentive for criminal defense attorneys to generate additional litigation in cases in which prosecutors have in good faith brought sound charges, tying up the scarce time and resources that are vital to bringing criminals to justice.

The Fifth Amendment already requires that, in every Federal felony case, a grand jury of citizens find probable cause to bring charges against a defendant, thereby protecting against unjustified prosecutions. In addition, the Department of Justice and the courts have safeguards to guard against such prosecutions. The amendment, which would provide for reimbursement out of the budget of Federal prosecutors, would have a chilling effect on prosecutorial discretion.

The litigation generated by this proposal may require disclosure and compromise of confidential sources and law enforcement techniques. If the bill presented to the President were to include this provision, the President's senior advisors would recommend that he veto the bill.

Department of Justice

• Drug Courts and Drug Testing. The Administration is disappointed by the failure of the Committee to provide any of the $45 million requested increase for drug courts. The drug courts program is a proven, cost-effective means of using the coercive power of the courts to move non-violent offenders into drug treatment programs. Also, the President's budget would provide $30 million to offset the costs associated with drug testing State and local arrestees. The Administration is concerned that the Committee does not identify $30 million from the Byrne Grant program for the State and local portion of the drug testing program, as proposed by the President. The drug courts and drug testing programs could be restored to the requested levels by reducing the Committee's funding for the Local Law Enforcement Block Grant program. Finally, last year the Congress enacted legislation that requires States to implement drug testing and intervention programs as a condition for receiving Violent Offender Incarceration and Truth-In-Sentencing (VOI/TIS) grants. The Administration now urges the Committee to provide funding for the prisoner and parolee drug testing and intervention mandate by allowing States to offset the cost with VOI/TIS funding.

• Juvenile Justice Block Grant. The Administration appreciates the Committee's desire to provide additional support for juvenile justice programs. However, the Administration is concerned that the $300 million block grant program may authorize a broad and unfocused range of spending and urges the House to target $100 million for the prosecutorial grant program, which is designed to facilitate the cooperation and coordination of prosecutors and police with school officials, probation officers, youth social service professionals, and community members in an effort to reduce the incidence of gang activity and violent juvenile crime. The Administration also urges the House to target $50 million for the violent youth court program, which is designed to develop initiatives for use by the courts and court-related entities, such as probation and parole offices and victim/witness centers, to enhance and expedite the handling of youth violence cases.

The Administration appreciates the Committee's support for the State Department's accounts that fund diplomatic and consular activities, which would help reverse the erosion of the Department's worldwide operations. We are also pleased that the Committee provided the transfers as requested to support the International Cooperative Administrative Support Services (ICASS) program.

The Administration welcomes the first-year funding of $100 million for arrears payments, and strongly opposes the Bartlett amendment that would eliminate this funding. United States leadership in the United Nations and other international organizations on a host of issues of importance to the American people would be compromised if we fail to meet our binding obligations. Thus we are deeply concerned that this bill provide full funding for the FY 1998 annual assessments provided in Contributions to International Organizations and Contributions for International Peacekeeping Activities accounts. It is vital for the Administration to be able to pay annual costs, avoid new arrears, and have some flexibility to address unforeseen needs relating to peace and security around the world. While we appreciate report language that underscores the importance of funding the arrears, we want to work with the House to ensure that the final bill contains multi-year arrears funding provided for in the Balanced Budget Act, and consistent with the pending authorization bill. The Administration is committed to working with the House to resolve these important issues relating to the future of international organizations.

The Administration urges the House to strike two provisions that raise Constitutional concerns: section 609, which concerns diplomatic relations with Vietnam, and section 610, which relates to command and control of United Nations peacekeeping efforts. In addition to Constitutional concerns, we believe that the issues raised by these provisions are being addressed in the pending authorization bill in more workable and appropriate ways.

Ounce of Prevention Council

The Administration strongly opposes the Committee's termination of the Ounce of Prevention Council. Elimination of this program would hinder the Federal Government's ability to help neighborhoods implement balanced strategies to reduce crime through enforcement, prevention, and intervention. The Council awards discretionary grants for promising community collaborative crime prevention programs, publishes a catalog of crime prevention grants and programs, and provides information and technical assistance. It plays a critical role in helping communities gain access to information on crime prevention best practices. The Administration strongly urges the House to provide funding for the Council and has identified an appropriate offset for that purpose.

Arms Control and Disarmament Agency

The Administration opposes the Committee mark of $41.5 million for the Arms Control and Disarmament Agency (ACDA), which would undercut the Administration's efforts to reduce the threat of nuclear and other weapons to the security of the American people.

Comprehensive Nuclear Test Ban Treaty

In addition to the $2.8 million requested in the FY 1998 Budget, a $13 million budget amendment for Comprehensive Nuclear Test Ban Treaty requirements was transmitted on July 17th. The Administration urges the House to provide the full revised request for these important national security activities.

Equal Employment Opportunity Commission

The Administration strongly urges the House to fully fund the President's request of $246 million for the Equal Employment Opportunity Commission given the importance of its work in addressing unlawful discrimination.

Office of the United States Trade Representative

The Administration appreciates the Committee's increase in funding for, and its past support of, the Office of the United States Trade Representative (USTR). USTR has had to manage a seven-fold increase in the number of World Trade Organization dispute settlement cases since the signing of the Uruguay Round Agreement. Despite its substantially increased workload, USTR has virtually the same number of attorneys working in this area as it did in 1990. USTR's work will be even more important in FY 1998 and in future years as the United States seeks to capitalize on new market-opening opportunities and to improve access to existing markets through enforcement actions. Given these circumstances, the Administration has transmitted a fully-offset $1.7 million budget amendment. We urge the House to provide the revised request.

National Endowment for Democracy

The Administration strongly supports the Committee mark of $30 million, at the President's request level, for the National Endowment for Democracy. Full funding of the President's request is needed to support democracy-building programs throughout the world. We would strongly oppose any amendment offered on the House floor that would eliminate or reduce funding for these important programs.

Additional Administration concerns with the Committee bill are contained in the attachment.

Attachment

ADDITIONAL CONCERNS
H.R. 2267 -- DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE,
THE JUDICIARY, AND RELATED AGENCIES APPROPRIATIONS BILL, FY 1998
(AS REPORTED BY THE HOUSE COMMITTEE)

Department of Commerce

• Geostationary Satellites. The Administration is deeply concerned about the Committee's $22 million reduction to the Geostationary Satellites (GOES) program. GOES provide critical data for warnings and forecasts of severe weather events. In order to maintain satellite continuity, particularly given recent technical malfunctions on existing spacecraft, it is imperative that NOAA have sufficient funding to award the contract for the follow-on series of GOES satellites.

• Economic and Statistical Analysis. The Committee mark for Economic and Statistical Analysis (ESA) is insufficient to make necessary improvements to important economic indicators. For the past four years, ESA has been denied funding for improvements to GDP and related regional, national, and international accounts data. In the past, ESA has dealt with funding constraints by eliminating important but non-core activities such as the Pollution Abatement Survey and Regional Economic Projections. ESA cannot sustain the quality of the Nation's basic economic indicators under continued funding constraints.

• Bureau of Export Administration. The Senate has recently passed the Chemical Weapons Convention implementing language, and the House is expected to do so shortly. Therefore, the Administration urges the House to provide the full requested level, $2.3 million, to the Bureau of Export Administration (BXA) for this activity. In addition, we urge the House to include seizure and forfeiture authority language for the BXA. This language would allow the BXA to become part of the Department of Justice's Assets Forfeiture Fund and is proposed in the Commerce Department's General Provisions in the FY 1998 Budget.

• National Oceanic and Atmospheric Administration. We are concerned about language in the Committee bill detailing the National Oceanic and Atmospheric Administration's (NOAA's) appropriation at the line office level. Many of NOAA's programs involve multiple line offices, and this language would inhibit current synergies among line offices. The Administration requests elimination of this bill language. Also, the Committee Report earmarks NOAA funding on a project-by-project basis. We respectfully request the deletion of these excessive earmarks.

• Executive Support. The Administration opposes the Committee's action to freeze legislative and public affairs activities at FY 1995 levels for the Department, and to reduce funding and staff for the Immigration and Naturalization Service (INS). Freezing or reducing these activities would inhibit the Department's ability to clear legislation in a timely and responsive manner and constrain its capacity to serve Congress. The Administration urges the House to increase funding for the Executive Support offices and to delete restrictions on the use of detailees.

  The Administration also objects to the Committee's action to reduce the number of non-career appointments in the INS. Limiting non-career appointments to four will adversely affect INS' ability to provide executive leadership.

• Maritime Administration (MARAD). The $65 million that the Committee bill would provide for MARAD Operations and Training would be insufficient to continue MARAD's current operations into FY 1998. The House is urged to provide no less than the $69 million contained in the Senate bill. In addition, the $3.45 million that would be provided for Title XI administrative expenses might result in a reduction in personnel that would jeopardize the effective oversight and management of Title XI projects. The House is urged to restore funding for this activity.

• Relocation. The Committee bill would provide no funds in support of the Federal Communications Commission's (FCC's) scheduled move to the Portals complex. Failure to provide these funds would delay the move, which could result in the Government unnecessarily paying for rent on an unoccupied building. The Administration urges the House to provide the $30 million required for the FCC move in FY 1998.