F.D.A. RESTRICTIONS ARE AS VILE ALTERNATIVE OF THE FIRST
           AMENDMENT AS THE SOMEWHAT BROADER ADVERTISING RESTRICTIONS
           CONTAINED IN THE PROTOCOL OF THE COMMERCE BILL. I ASK UNANIMOUS
           CONSENT THE LETTER BE PLACED IN THE RECORD AT THIS POINT.
           

           THE PRESIDING OFFICER: WITHOUT OBJECTION,
           

           MR. HATCH: THERE ARE OTHER PROVISIONS OF THE BILL THAT ARE
           CONSTITUTIONAL INFIRMED. PHARYNX THE LOOK BACK PENALTIES IN THE
           COMMERCE BILL IMPOSED ON TOBACCO COMPANIES IF TEEN SMOKE BEING
           DOES NOT MEET FOLESE TORE REDUCTION, ARE CONSTITUTIONALLY
           CHALLENGED UNLESS VOLUNTARILY AGREED TO BY THE TOBACCO
           COMPANIES. I MUST ADD THE COMMERCE BILL NOW TERMS. PENALTIES
           "IS YOUR CHARGES." BUT THIS IS SIMPLY AN ATTEMPT TO ELEVATE
           FORM OVER SUBSTANCE. HOWEVER TERMED THESE PAYMENTS ARE THE

           FUNCTIONAL EQUIVALENT OF FINES. CHIEF AMONG THE GROUNDS
           CHALLENGING THIS PROVISION WILL AN DUE PROCESS CHALLENGE. THE
           SUPREME COURT HAS HELD THAT IMPOSED PENALTIES MUST BE RELATED
           TO THE OBJECT OF THE LEGISLATION. PENALTIES SHOULD NOT BE
           IMPOSED WITHOUT A SHOWING OF FAULT. AND I WOULD REFER YOU TO
           THE LANDIS V. KLEIN CASE IN 1973 WHERE IT WAS SAID PENALTIES
           WITHOUT FAULT CREATE AN IRRELEVANT REBUTABLE PRESUMPTION WHICH
           IS DISFAVORED BY THE COURT. GIVEN WHAT WE KNOW OR DO NOT KNOW

           ABOUT HOW TEENS REACT TO ADVERTISING, IT IS POSSIBLE THAT EVEN
           IF THE TOBACCO INDUSTRY DOES ALL THAT IT CAN BE TO PREVENT TEEN
           SMOKING, AND TEEN SMOKING STILL WILL NOT -- THAT TEEN SMOKING
           STILL WILL NOT MEET THE TARGET. BESIDE LOOK BACK PENALTIES IT
           CONTAINS A PROVISION THAT COMPANIES LOSE THE LIABILITY CAP
           PROTECT IN UNDER AGE SMOKING EXCEEDS TARGETS BY A SET AMOUNT.
           THIS IS ALSO DONE WITHOUT A SHOWING OF FAULT. THUS IT IS CLEAR

           THE COURT -- A COURT WOULD INTERPRET THE COMMERCE BILL'S
           PENALTIES AS PUNITIVE. THE LOOK-BACK PROVISIONS THEREFORE
           POSSIBLY COULD FALL INTO THE PROVISION OF THE CONSTITUTION THAT
           PROHIBITS CONGRESS FROM PASSING A BILL OF ATTAINER. I REFER TO
           THE CUMMINGS VS. MISSOURI CASE IN 1867. GEORGE III AND
           PARLIAMENT USED BILLS OF ATTAIN DER TO PUNISH THEIR POLITICAL
           ENEMIES AND FRAMERS OF THE CONSTITUTION WISELY FOR BADE

           CONGRESS FROM DOING THE SAME. CERTAIN PAYMENTS BY THE INDUSTRY
           RAISED TAKINGS CLAUSE ISSUES. FOR INSTANCE IT COULD BE ARGUED
           THAT SOME OF THE PAYMENTS MADE BY THE INDUSTRY CONSTITUTE A
           FORCED SEIZURE OF MONEY. THE INITIAL $10 BILLION UP FRONT
           PAYMENT AND THE FIRST SIX ANNUAL PAYMENTS ARE OWED REGARDLESS
           OF WHETHER THERE IS ANY TOBACCO RELATED INCOMES AND REGARDLESS
           IF THERE ARE ANY TOBACCO SALES. I MIGHT ALSO ADD THAT THE
           PROVISION THAT ADDS THAT COMPANIES THAT HAVE RELATED COMPANIES
           TO THEIR TOBACCO COMPANY, ALTHOUGH THEY MAY BE IN FOOD AS IT IS

           THE CASE WITH R.J.R. REYNOLDS AND PHILIP MORRIS TO MENTION TWO,
           THAT THOSE FOOD COMPANIES INTEREST SUDDENLY PENALIZED HAVE TO
           PAY THE PAYMENTS UNDER THIS BILL EVEN THOUGH THEY HAVE
           ABSOLUTELY NO RELATION TO IT AND NO FAULT IS SHOWN. WELL, THESE
           PAYMENTS CAN NEITHER BE CHARACTERIZED AS TAX OR LICENSING FEE
           AND WOULD CONSTITUTE UNCOMPENSATED TAKINGS UNDER THE FIFGT
           AMENDMENT. I WILL REFER TO WEB'S FIRST PHARMACIES VERSUS

           BECKWITH A 1908 CASE WHERE BANK SEIZURES WERE TAKINGS UNDER THE
           FIFTH AMENDMENT. I MUST NOTE THE CURRENT VERSION OF THE
           COMMERCE BILL REQUIRES ALL TOBACCO MANUFACTURERS TO RELEASE
           ATTORNEY-CLIENT AND WORK PRODUCT DOCUMENTS TO THE F.D.A. AND
           ESTABLISH FINANCE AND RUN A DOCUMENT DO POSTORY. NOW WHILE THIS
           IS A WORTHWHILE GOAL, I BELIEVE THAT THE WRONG DOINS OF THE
           TOBACCO COMPANIES HAVE BEEN HIDDEN FOR FAR TOO LONG AND THE
           INFORMATION WILL HELP THE F.D.A. IN REGULATING TOBACCO. EVEN SO

           IT MUST BE DONE IN A CONSTITUTIONAL MANNER, OR IT IS ALL FOR
           KNOT. WE MUST REMEMBER THE JUNE 20TH AGREEMENT PRESUPPOSED
           VOLUNTARY PARTICIPATION BY THE TOBACCO COMPANIES IN RELEASING
           PROPRY FERRY ACCOUNTS AND ESTABLISHING AND FINANCING THE
           DOCUMENT DEPOSITORY. WHILE LITIGATION DOCUMENTS ALREADY MADE
           PUBLIC CAN BE FORWARDED TO THE F.D.A. IT IS PROBLEMATIC IT THE
           INDUSTRY COULD BE REQUIRED TO RELEASE I DIGS AL REQUIREMENTS,
           ESPECIALLY WORK PRODUCT, CONFIDENTIAL OR PRIVILEGED DOCUMENTS.

           SUCH DOCUMENTS ARE PROPERTY AS DID HE FIND BY THE FIFTH
           AMENDMENT. I REFER YOU TO THE NI KEPT EI CORPORATION VS. THE
           CITY OF KANSAS CITY, A 1983 CASE WHERE THE CORPORATION
           DOCUMENTS WERE HELD TO CONSTITUTE PROPERTY UNDER THE FIFTH
           AMENDMENT. MOREOVER, PURSUANT TO SAME THEORY THE FORCED FUNING
           BY THE INDUSTRY OF THE DID HE POSTORY, THE LEETSING OF
           BUILDINGS, SALARIES OF PERSONNEL, ET CETERA, INDEED AS FOR
           CONFISCATION OF CASH OR OTHER VALUABLE ASSETS WOULD CONSTITUTE

           A TAKING UNDER THE FIFTH AMENDMENT REQUIRING COMPENSATION.
           AGAIN I WOULD REFER YOU TO WEB'S FABULOUS PHARMACY'S INC. AT
           PAGES 162 TO 163. LET ME CONCLUDE MY REMARKS THAT BY SAYING
           UNLESS WE HAVE THE VOLUNTARY PARTICIPATION OF THE TOBACCO
           INDUSTRY, I DOUBT A COMPREHENSIVE BILL LIKE THE PRESENT
           COMMERCE BILL COULD BE IMPLEMENTED. SUCH A BILL WILL
           UNDOUBTEDLY BE SUCCESSFULLY CHALLENGED IN THE COURTS AND I
           BELIEVE THE LITIGATION AND INEVITABLE APPEALS COULD TAKE YEARS
           TO RESOLVE. MINORITY LEADER I MAKE MY CASE THAT IF THIS BILL

           PASSES IN ITS CURRENT FORM WITHOUT THE COOPERATION OF THE
           TOBACCO COMPANIES WHICH WILL BE THE CASE, THEN THIS BILL WILL
           BE LITIGATED FOR AT LEAST TEN YEARS, AND IN THE END I BELIEVE
           IT IS LIKELY TO BE OVERTURNED BECAUSE IT WILL BE FOUND
           UNCONSTITUTIONAL. AND IF THAT'S SO, THEN WE ARE RISKING THE
           LIVES OF TEN MILLION MORE KIDS WHO WILL BECOME ADDICTED TO
           TOBACCO AND DIE PREMATURELY AS A RESULT OF OUR FAILURE TO DO
           WHAT IS RIGHT RIGHT NOW ON THE FLOOR OF THE SENATE AND IN THE

           HOUSE OF REPRESENTATIVES. IT'S IMPORTANT THAT THESE
           CONSTITUTIONAL ISSUES BE ADDRESSED. THAT'S WHY I AM HERE TAKING
           THE TIME TO ADDRESS THEM. IT IS IMPORTANT THAT WE NOT IGNORE
           THE CONSTITUTION. IT IS IMPORTANT THAT WE UPHOLD THE
           CONSTITUTION. IN THE MEANTIME, IF THOSE THINGS OCCUR, AND WE
           PASS THIS BILL, AND WE HAVE TEN YEARS OF LITIGATION AND THE
           BILL IS FOUND TO BE UNCONSTITUTIONAL IN THE END ANYWAY, WHAT
           HAVE WE DONE?
           IN THE MEANTIME THOUSANDS, MILLIONS OF OUR KIDS WILL GET HOOKED
           ON CIGARETTES AND INDEED MANY OF THESE CHILDREN PROBABLY 10

           MILLION OF THEM WILL DIE PREMATURELY AT LEAST ACCORDING TO
           CURRENT STATISTICS. I KNOW THAT THE HEALTH OF OUR CHILDREN IS
           OF PARAMOUNT CONCERN TO ALL OF MY COLLEAGUES. SO LET US AT
           LEAST DO THE RIGHT THING AND PASS A BILL THAT IS
           CONSTITUTIONAL. THE PROTECTION OF THE CONSTITUTION AND THE
           PROMOTION OF PUBLIC HEALTH ARE NOT INCONSISTENT GOALS. THE
           AMERICAN PEOPLE DEMAND BOTH AND WE SHOULD GIVE IT TO THEM. JUST
           STOP AND THINK ABOUT IT. THIS BILL IS ALLEGEDLY $516 BILLION,

           BUT THAT'S AT A COST OF $1.10 PER PACK COST TO THE
           MANUFACTURERS. A WHOLE RAFT OF OTHER ADD-ON COSTS ARE NOT ADDED
           INTO THE EQUATION AT THAT POINT. THE WHOLE CHARGES THE RETAIL
           CHARGES, THE CHARGES THAT COME FROM CONTRABAND, THE CHARGES
           FROM THE LOOK-BACK PROVISIONS THAT AREN'T EVEN FIGURED IN.
           THAT'S WHY THE TRUE NIFS WHO HAVE DONE THE ECONOMIC MODELS THAT
           REALLY AMOUNT TO SOMETHING ON THIS THING, THAT'S WHY THEY HAVE

           CONCLUDED THAT THE COST PER PACK IS GOING TO BE OVER $5 PER
           PACK OR OVER $50 PER CARTON OF CIGARETTES. WELL, THESE ARE
           IMPORTANT THINGS. IF THAT'S SO, THEN WE DON'T DO SOMETHING
           ABOUT IT BY DOING THE RIGHT THING NOW AND DOING THAT WHICH IS
           CONSTITUTIONAL RATHER THAN THAT WHICH IS UNCONSTITUTIONAL, THEN
           I THINK EVERYBODY WHO VOTES FOR THIS BILL WOULD DESERVE A GREAT
           DEAL OF CONDEMNATION FOR WHAT IS HAPPENING. WHAT REALLY BOTHERS
           ME TO BE HONEST WITH YOU IS HOW PEOPLE IN THE PUBLIC HEALTH
           COMMUNITY JUST VOLUNTARILY CHOOSE TO IGNORE THESE ISSUES. WHO

           SEEM TO JUST WANT TO KILL THE TOBACCO COMPANIES AT THE SAME
           TIME TRYING TO GOUGE THEM FOR EVERY PENNY THEY GET. NOW NOBODY
           DISLIKE THE TOBACCO COMPANIES MORE THAN I DO AND NOBODY HAS
           FOUGHT HARDER TO TRY AND GET THE TOBACCO COMPANIES PUT IN LINE.
           BUT FRANKLY, UNLESS THEY COME ON BOARD, UNLESS WE CAN BRING
           THEM TO THE TABLE AND RIGHT NOW THE HATCH-FEINSTEIN AMENDMENT
           WILL BE $60 BILLION MORE -- 6 -- $60 BILLION MORE THAN THE $368
           BILLION MORE IN THE AGREEMENT THAT ALL OF US IT WAS AND AT THE

           WHEN THE TIME CAME AND WONDERED HOW IN THE WORLD COULD THE
           COMPANIES AGREE TO THAT. I HAVE REASON TO BELIEVE THEY WON'T
           LIKE OUR BILL ANYMORE THAN THEY LIKE THE $368.5 BILLION BILL,
           BUT THEY WILL COME ON BOARD WITH THAT TYPE OF APPROACH AND I
           THINK WE OUGHT TO GIVE EVERY CONSIDERATION TO THAT TYPE OF AN
           APPROACH. WELL I WOULD LIKE TO BE MUCH MORE SPECIFIC ON THE
           CONSTITUTIONAL ISSUES, BUT I KNOW THAT THE MANAGERS OF THE BILL
           WOULD LIKE TO MOVE ON. SO I WOULD LIKE TO PLACE MY REMAINING
           MORE DETAILED REMARKS IN THE RECORD, BECAUSE THEY INCLUDE A
           MORE IN-DEPTH CONSTITUTIONAL ANALYSIS OF THE ISSUES INVOLVED

           AND I WILL DO THAT BE YIELD THE FLOOR. I ASK UNANIMOUS CONSENT
           THAT THEY BE PLACED IN THE RECORD AT THIS TIME.
           

           THE PRESIDING OFFICER: WITHOUT OBJECTION. MR. DASCHLE: MR.
           PRESIDENT?
           
           

           THE PRESIDING OFFICER: THE DEMOCRATIC LEADER.
           

           MR. DASCHLE: MR. PRESIDENT, LET ME BEGIN. I KNOW THAT WE ARE
           ABOUT TO FINALLY COME TO A VOTE ON THIS AMENDMENT. I BEGIN BY
           SIMPLY COMPLEMENTING THE SUMMON SOURCE OF THE LEGISLATION
           ACTION, AMENDMENT FOR WHAT I KNOW IS A WELL-INTENDED EFFORT TO
           ADDRESS ONE OF THE MOST CONVENTION OF THE ISSUES WE MUST FACE
           -- CONSEQUENTIAL OF THE ISSUES WE MUST FACE AND I CERTAINLY
           DON'T DENY A STRONG CASE CAN BE MADE FOR FOLLOWING THROUGH WITH

           WHAT IS DESCRIBED AS THE INTENT OF THIS AMENDMENT. I HAPPEN TO
           COME DOWN ON THE OTHER SIDE, AND AIM GOING TO TRY TO EXPLAIN MY
           REASONS WHY I BELIEVE THIS AMENDMENT OUGHT TO BE DEFEATED, BUT
           IT IS NOT WITHOUT HIGH REGARD FOR THE SPONSORS, BOTH SENATOR
           GREGG AND SENATOR LEAHY AND THE EFFORT THEY ARE PUTTING FORTH
           IN ATTEMPTING TO EXPLAIN EXACTLY WHAT THE STAKES ARE WITH
           REGARD TO THE LEGISLATION ITSELF. LET ME JUST SAY, AS TO THE
           QUESTION OF IMMUNITY, ONE THING THAT I THINK NEEDS TO BE SAID

           IS THAT THERE IS NO IMMUNITY IN THIS BILL. PERIOD. THERE IS
           NONE. NO ONE SHOULD BE MISLED. THERE IS NO IMMUNITY IN THIS
           LEGISLATION. THERE ARE WAYS WITH WHICH WE DEAL WITH THE TOBACCO
           COMPANIES AND THEIR LEGAL STANDING, BUT NO ONE SHOULD SAY THAT
           THIS SOMEHOW ADVANCES, THAT IS THE BILLS, PROVIDES IMMUNITY FOR
           THE TOBACCO COMPANIES. NOW ON THE ISSUE OF IMMUNITY AND

           LIABILITY, I THINK THE MANAGERS OF THE BILL HAVE MADE GREAT
           PROGRESS OVER THE COURSE OF THE LAST WEEK, WORKING WITH THE
           ADMINISTRATION. THEY HAVE IMPROVED DRAMATICALLY WHAT WAS DONE
           IN THE COMMERCE COMMITTEE INITIALLY. WHAT THE COMMERCE
           COMMITTEE ITSELF DID IN MY VIEW RAISED SERIOUS CONCERNS THAT I
           FRANKLY FELT HAD TO BE ADDRESSED IN ONE WAY OR ANOTHER, IF
           INDEED WE WERE GOING TO RESOLVE THE OVERALL ISSUE OF HOW WE

           APPROACH TOBACCO POLICY IN THE FUTURE. THERE WERE SPECIAL
           PROTECTIONS FOR THE TOBACCO INDUSTRY THAT WERE WRITTEN IN TO
           THE COMMITTEE BILL ORIGINALLY, THAT I BELIEVE WERE VERY, VERY
           SERIOUS AS A MATTER OF PUBLIC POLICY. ALLOWING, FOR EXAMPLE,
           PARENT COMPANIES OF TOBACCO COMPANIES TOTAL IMMUNITY, WOULD
           HAVE BEEN WRONG. TO SAY THAT WE ARE GOING TO BAN ALL CLAIMS
           TAKEN TO COURT BASED ON ADDICTION, TO BAN THOSE WOULD HAVE BEEN

           WRONG. TO SAY THAT WE WERE GOING TO PREVENT STATE COURTS FROM
           HEARING ALL CLAIPLGS WOULD HAVE BEEN WRONG. MR. PRESIDENT, I
           WANT TO MAKE SURE ALL OUR COLLEAGUES UNDERSTAND, EVERYONE OF
           THOSE PROVISIONS HAVE BEEN ELIMINATED. ALL OF THOSE SPECIAL
           PROVISIONS NO LONGER EXIST. THE MANAGERS' AMENDMENT, WHICH IS
           NOW PART OF THE BILL, HAS ELIMINATED ALL OF THEM. THE ONLY
           REMAINING PROVISION IS A CAP ON YEARLY PAYMENTS, AND THAT CAP

           HAS BEEN RAISED FROM $6.5 BILLION, TO $8 BILLION. SO BEFORE ANY
           SENATOR IS CALLED UPON TO MAKE THEIR VOTE, I HOPE THEY
           UNDERSTAND THAT SIMPLE FACT. PERHAPS I SHOULD SAY THOSE SIMPLE
           FACTS. THERE IS NO IMMUNITY IN THIS BILL. THERE IS NO SPECIAL
           PROVISION UNLIKE WHAT WAS REPORTED OUT OF THE COMMERCE
           COMMITTEE, AND WHAT IS LEFT IS A CAP THAT HAS BEEN RAISED BY

           $1.5 BILLION ANNUALLY. AND LET ME EMPHASIZE SOMETHING ABOUT
           THAT CAP. THE CAP IS AVAILABLE ONLY TO THOSE COMPANIES THAT
           AGREE TO ADDITIONAL ADVERTISING RESTRICTIONS BEYOND WHAT IS
           CONTAINED IN THE F.D.A. RULE. AND THEY HAVE TO COMMIT NEVER TO
           WHICH LENGTH THE ENTIRE BILL TO BE ELIGIBLE FOR WHATEVER
           LIABILITY LIMITATIONS THERE MAY BE UNDER THAT CAP. THEY CAN'T
           ADVERTISE. THEY CAN'T CHALLENGE THE PROVISIONS OF THIS

           LEGISLATION JUST TO BE ELIGIBLE. AND THEN THERE IS ONE MORE
           THING. EVERY NEEDS TO UNDERSTAND THAT IN ORDER JUST TO BE ABLE
           TO DO THAT, THEY HAVE GOT TO PAY OUT AN UP FRONT PAYMENT OF $10
           BILLION. SO HERE IS WHAT WE ARE OFFERING THE TOBACCO COMPANIES.
           YOU PAY THE COUNTRY $10 BILLION, YOU AGREE TO LIMIT YOUR
           ADVERTISING WAY BEYOND WHAT THE F.D.A. RULE WILL PROVIDE, YOU

           ALSO AGREE NOT TO CHALLENGE THE PROVISIONS WITHIN THIS BILL,
           AND THEN WE WILL FIT YOU UNDER AN $8 BILLION LIABILITY CAP. AND
           ONLY THOSE COMPANIES WHICH
{END: 1998/05/21 TIME: 15-15 , Thu.  105TH SENATE, SECOND SESSION}