POLYGRAPH PROTECTION ACT OF 1987

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• Document Page Count: 15
• Document Creation Date: December 23, 2016
• Document Release Date: January 17, 2013
• Sequence Number: 23
• Publication Date: March 3, 1988
• Content Type: OPEN SOURCE

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March 3, 1988
CONGRESSIONAL RECORD ? SENATE
of the points in support of the INF
Treaty that I have made in this
speech. They also make one additional
and specially impressive point. They
call attention to the virtually unani-
mous support of the INF Treaty by
the European leaders in NATO. Here,
Mr. President, are the countries that
are literally on the firing line. If the
NATO military alliance were weak-
ened and NATO was unable to with-
stand a pact attack these are the coun-
tries that would suffer. Many of their
people would lose their lives. All of
them would lose their freedom. The
leaders of these countries know the
INF Treaty- makes NATO stronger.
This is why, Mr. President, the Senate
should promptly ratify it.
Mr. President, I ask unanimous con-
sent that the editorial to which I have
just referred be printed in the RECORD.
There being no objection, the edito-
rial ordered to be printed in the
RECORD, as follows:
THE TREATY, EUROPEANS AND THE JITTERS
What does Europe think of the treaty to
eliminate Euromissiles? The answer, as the
Senate weighs ratification, is clear: Virtual-
ly all West European leaders support the
treaty. Some Americans say that behind the
official blessings lie deep divisions and
doubts. But they confuse genuine support
for this treaty and equally genuine concern
about the state of the alliance. Failure to
ratify the treaty would only deepen those
concerns.
European leaders support the I.N.F.
agreement because it would leave NATO
stronger, not because somebody's twisting
their arms. It would eliminate a class of
weapons threatening to Europe in which
the Russians hold a clear superority. It is
the first arms accord dealing directly with
European security. Not least, it holds the
door open for further diplomatic opportuni-
ties with Mikhail Gorbachev's Soviet Union.
That's strongly desired by Europeans from
far left to far right.
Still, Americans who insist they know the
real European mind ignite charge after
charge. They contend that the treaty weak-
ens deterrence. But why? More than 300,000
American troops remain in place. So do 90
percent of U.S. nuclear weapons in Europe-
4,000 warheads on various delivery systems,
including bombers that can reach Soviet ter-
ritory.
The critics see It all leading to a denu-
clearized Europe, leaving Moscow with a
threatening superiority in conventional
forces. But European leaders are well aware
that deterrence still requires nuclear weap-
ons on their territories and they won't be
suckered into that game by Moscow. The
critics maintain that the treaty will make
Europe safe for conventional war. How will
eliminating Soviet advantages in missiles
with ranges between 300 and 3,000 miles do
that? They say it will neutralize Bonn. Did
Bonn feel safer when Moscow had the edge
in mid-range missiles?
Reagan Administration policies have un-
dermined European confidence in America.
In its early years, the Administration unset-
tled Europe with talk of the possibility of
limited nuclear war. Then it undercut the
doctrine of nuclear deterrence with talk of
rendering nuclear weapons impotent with a
space shield over the U.S., not Europe. Then
in Reykjavik, President Reagan proposed
eliminating all ballistic missiles, having
breathed nary a word of that remarkable
idea to his allies.
Little wonder that many Europeans worry
loudly about American thinking and the
balance of strategic and conventional forces.
The treaty may give a focus to this fretting.
But it did not create the worries nor does it
exacerbate the underlying problems. On the
contrary, it strengthens the alliance mili-
tarily and demonstrates its political strength.
In the face of dire Soviet threats, Europe-
ans went ahead with deployment of the U.S.
Euromissiles, and through the alliance's
steadiness, brought about the agreement to
destroy all such missiles.
The Senate will serve both the alliance
and the ratification process best by doing
what the treaty's critics fail to do: take the
treaty on its merits?and the Europeans at
their word.
POLYGRAPH PROTECTION ACT
Mr. SPECTER. Mr. President, al-
though I strongly support this bill, I
am voting against cloture at this time
because I strongly believe such a pro-
cedure establishes an attitude of
undue rush to judgment by the
Senate.
This bill was called for floor action 2
days ago on the afternoon of Tuesday,
March 1. The bill was considered by
the Senate for only a few hours that
afternoon and a cloture motion was
filed the same afternoon without any
indication of a filibuster or extensive
debate.
Extended discussion is unnecessary
to emphasize the importance of
debate, appropriate consideration and
the Senate's deliberative process. That
does not occur when a cloture motion
is filed virtually contemporaneously
with a bill's reaching the Senate floor.
Yesterday, on March 2, amendments
were considered with a 10-minute time
limitation so that each side had 5 min-
utes for the presentation of argu-
ments. That rush-atmosphere is
hardly conducive to appropriate con-
sideration.
An amendment was considered yes-
terday on their bill expressing the
sense of the Senate to oppose a $400
million loan from the World Bank to
Mexico to establish a steel industry.
Debate on that important matter was
limited to 15 minutes, slowing the pre-
vailing attitude that the Senate
should rush to judgment on such im-
portant matters. That procedure, in
my judgment, is most unwise and the
Senate should take the time which it
needs to give appropriate consider-
ation to such issues.
Accordingly, I believe that it is
unwise to establish a practice for pre-
mature resort to cloture. The Senate
has ample time to consider these mat-
ters.
On Monday last, .6 hours of debate
were set on a resolution which, most
agreed, did not require that much
time. In any event, the 6 hours were
not used.
There is ample time during the
course of the workday for the Senate
to be in session to give appropriate
time to consider issues like the pend-
ing bill and the World Bank loan. Ac-
cordingly, while I strongly support the
A.V6x-re
1793
pending substantive egis a ion, I am
equally strongly opposed to this clo-
ture practice and believe the Senate
should reject it.
ORDER OF PROCEDURE
Mr. BYRD. Mr. President, I simply
take a moment to remind all offices
that the rollcall vote on the motion to
invoke cloture will begin at 9:30 a.m.,
some 5 minutes from now. That will be
a 30-minute rollcall vote and the call
for the regular order will be automatic
at the conclusion of the 30 minutes.
So if there are any offices that are
listening and I am sure there are, I
suggest that they make preparations
for reminding all Senators that the
vote is rapidly approaching.
Mr. President, I yield the floor.
CONCLUSION OF MORNING
BUSINESS
Mr. BYRD. Mr. President, I ask that
morning business be closed.
The ACTING PRESIDENT pro tern-
pore. Without objection, it is so or-
dered.
Mr. BYRD. Mr. President, the man-
datory quorum was waived. So I will
not suggest the absence of a quorum.
Morning business has been closed.
The ACTING PRESIDENT pro tern-
pore. The majority leader is correct.
Mr. BYRD. Very well.
Mr. President, I suggest what I
intend to be a short quorum, and if no
Senator objects to the calling off of
this quorum, it will be a short quorum.
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tern.
pore. The clerk will call the roll.
The legislative clerk proceeded to
call the roll.
Mr. BYRD. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so or-
dered.
OLYGRAPH PROTECTION ACT
OF 1987
The ACTING PRESIDENT pro tem-
pore. Under the previous order the
hour of 9:30 o'clock a.m. having ar-
rived the clerk will report the motion
to invoke cloture.
The legislative clerk read as follows:
CLOTURE MOTION
We, the undersigned Senators in accord-
ance with the provisions of Rule XXII of
the Standing Rules of the Senate hereby
move to bring to a close the debate upon the
committee substitute to the bill S. 1904,
Polygraph Protection Act of _1987.
Senators Edward M. Kennedy, Howard
Metzenbaum, Brock Adams, Lowell Weicker,
Patrick Leahy, John F. Kerry, Tom Harkin,
Thomas Daschle, Orrin G. Hatch, Don
Riegle, Christopher Dodd, Barbara A. Mi-
kulski, Timothy E. Wirth, J.J. Exon, Dale
Bumpers, and Robert Stafford.
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S 179f1 CONGRESSIONAL RECORD ? SENATE March 3,1988
VOTE
The ACTING PRESIDENT pro tern-
pore. By unanimous consent the
quorum call has been waived.
The question is, Is it the sense of the
Senate that debate on the committee
substitute to S. 1904, the Polygraph
Protection Act of 1987, shall be
brought to a close? The yeas and nays
are mandatory under the rule.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. CRANSTON. , I announce that
the Senator from Tennessee [Mr.
GORE] and the Senator from Illinois
[Mr. Simon] are necessarily absent.
I also announce that the Senator
from Delaware [Mr. BIDEN] is absent
because of illness.
Mr. SIMPSON. I announce that the
Senator from Kansas [Mr. DOLE] is
necessarily absent.
The PRESIDING OFFICER (Mr.
Dixon). Are there any other Senators
in the Chamber who desire to vote?
The yeas and nays resulted?yeas 77,
nays 19, as follows:
[ltolleall Vote No. 42 Leg.]
YEAS?T7
Adams
Armstrong
Baucus
Bentsen
Bingaman
Bond
Boren
Boschwitz
Bradley
Breaux
Bumpers
Burdick
Byrd
Chafee
Chiles
Cohen
Conrad
Cranston
D'Amato
Danforth
Daschle
DeConcini
Dixon
Dodd
Domenic'
Durenberger
Evans
Exon
Ford
Fowler
Glenn
Graham
Grassley
Harkin
Hatch
Hatfield
Heflin
Heinz
Hollings
Humphrey
Inouye
Johnston
Kassebaum
Kasten
Kennedy
Kerry
Lautenberg
Leahy
Levin
Lugar
Matsunaga
Melcher
Metzenbaum
Mikulski
Mitchell
Moynihan
Murkowski
Nunn
Packwood
Pell
Proxmire
Pryor
Reid
Riegle
Rockefeller
Roth
Rudman
Sanford
Sarbanes
Sasser
Shelby
Simpson
Stafford
Stennis
Weicker
Wilson
Wirth
NAYS-19
Cochran McClure
Garn McConnell
Gramm Nickles
Hecht Pressler
Helms Quayle
Karnes Specter
McCain Stevens
Biden
Dole
Symms
Thurmond
Trible
Wallop
Warner
NOT VOTING-4
Gore
Simon
The PRESIDING OFFICER. On
this vote, the yeas are 77 and the nays
are 19. Three-fifths of the Senators
duly chosen and sworn having voted in
the affirmative, the motion is agreed
to.
POLYGRAPH PROTECTION ACT
OF 1987
The Senate continued with the con-
sideration of the bill S. 1904.
Mr. BYRD addressed the Chair.
The PRESIDING OFFICER. The
majority leader.
Mr. BYRD. Mr. President, may I ask
a question of the distinguished acting
Republican leader? Included in the
order last evening was a provision to
allow for up to three amendments to
be called up from the other side of the
aisle. What are the prospects, may I
ask of the distinguished acting Repub-
lican leader, on that matter?
Mr. SIMPSON. Mr. President, I
would advise the majority leader that
the Senator from Texas has indicated
to me that he would not be presenting
those amendments. He will withdraw
those amendments. Perhaps the Sena-
tor from Texas wishes to comment
upon that.
Mr. BYRD. I yield.
Mr. GRAMM. If the distinguished
majority leader would yield.
The PRESIDING OFFICER. The
Senator from Texas.
Mr. GRAMM. Mr. President, I had a
discussion this morning with the dis-
tinguished Senator from Massachu-
setts, a discussion dealing with the
area of the pharmaceutical industries.
He gave me assurances that would be
dealt with, and based on that, we are
not offering additional amendments.
Mr. BYRD. I thank all Senators. I
ask unanimous consent that no fur-
ther amendments now be in order,
which would leave the debate time in
position for Senators to speak on the
matter. I believe it is 40 minutes equal-
ly divided.
Mr. SIMPSON. That is correct.
Mr. BYRD. I thank the acting Re-
publican leader, and I thank all Sena-
tors, particularly the Senator from
Texas [Mr. Gaamm] and the Senator
from Massachusetts [Mr. KENNEDY].
Mr. KENNEDY. Mr. President, I
know the Senator from Utah wants to
speak on this bill. We just had a vote.
We will be glad to do whatever the
leadership wants, as long as we wind
up the consideration, have third read-
ing, and have the vote after that. I
imagine that will be in a short period
of time.
Mr. BYRD. Very well. Mr. President,
shall we count on the full use of the 40
minutes?
Mr. KENNEDY. Mr. President, I
think it will be less. I plan to speak
just briefly, 4 or 5 minutes. The Sena-
tor from Utah wants to speak for 4 or
5 minutes. He is at the Judiciary Com-
mittee now, and he wanted to be noti-
fied.
I do not believe anyone has contact-
ed us on our side. I think most of
those who wanted to speak have
spoken.
Mr. SIMPSON addressed the Chair.
The PRESIDING OFFICER. The
acting Republican leader.
Mr. SIMPSON. Mr. President, let me
suggest, if I may, 20 minutes are allo-
cated on our side, the side in opposi-
tion to the bill. Senator GRAMM has a
conflict, and perhaps if he goes for-
ward for 5 minutes and perhaps if Sen-
ator KENNEDY would like to go for-
ward, we can do it a bit hi reverse. We
can have Senator QUAYLE speak in op-
position, and then yield back.
Mr. KENNEDY. Fine.
Mr. BYRD. Mr. President, for the
time being, I believe the Senators
would prefer to leave the 40 minutes
in place, if it is needed. It may not be
needed, and the respective offices on
both sides should take that into con-
sideration, that the vote on final pas-
sage may occur earlier than anticipat-
ed.
The PRESIDING OFFICER. There
remain 40 minutes of debate evenly di-
vided on the bill.
Mr. KENNEDY. Mr. President, I
would be glad to yield such time as the
Senator from Texas desires.
The PRESIDING OFFICER. The
Senator from Texas.
Mr. GRAMM. Mr. President, I will
be brief. We have debated this bill now
for several days. I think Members at
least have come to a conclusion as to
where they stand on it. I for one think
the issues are not as clear as I wish
they were.
No one believes that polygraphs are
an infallible tool in ferreting out infor-
mation. I think one thing that we have
all come to understand is that the
polygraph is a very dull tool. It is a
procedure that has inherent problems,
and I think, quite frankly, all of us are
concerned about the intrusive nature
of the polygraph examination in terms
of putting people under stressful situa=
tions and creating the potential that
people are going to turn up negative
tests when, in fact, they are telling the
I think everyone in this great body is
concerned about the impact on people
Who test negative and who are affect-
ed by it. I think also there is real and
legitimate concern about how the tests
are administered. But I feel this bill
goes far beyond the response that is
justified by these concerns.
What a great paradox it is that we
go on at great length about the prob-
lems with the polygraph exam, and we
take steps that deny the private sector
the right to use it in prescreening and
severely restrict its use, under any cir-
cumstances, for the private sector, and
yet we totally exempt the Federal
Government, State governments, and
local governments.
It is as if what government does is so
important, so critical to the future of
the Republic, that we are forced in
government to use dull, inefficient, in-
trusive tools, but the private sector is
so insignificant, so irrelevant to the
future of America that the sector of
the economy that pays the bills and
pulls the wagon is excluded from the
use of a tool which government clearly
finds in some circumstances indispen-
sable.
I know the distinguished Senator
from Massachusetts feels strongly
about the use of polygraph. He has
spoken with great effectiveness about
the inherent problems with the test. I
would like to remind my colleagues
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Mairli 3, 1,988 CONGRESSIONAL RECORD ? SENATE
that with all the problems we have
with polygraph, polygraph is used by
all of the intelligence agencies that
work on behalf of our Nation.
We found out one thing clearly from
the Walker spy case, and that is, if the
Soviet Union viewed polygraph in the
same way that the GAO study viewed
it, they clearly have not shown it in
terms of their policy because they told
Walker: "You are so important to us
that we don't want you to put yourself
in a position where you have got to
take a polygraph examination."
So do I think there are problems
with private use of polygraph today in
the Nation? Yes. But I think we are
going too far, for all practical pur-
poses, in excluding the use of poly-
graph for prescreening and so severely
limiting it in other uses as to render it
virtually ineffective.
I think there are many uses. Wheth-
er we are talking about polygraph for
people who are flying airplanes, driv-
ing trucks and buses, driving trains,
where drug tests have an inherent
problem that if you are not using the
drug at the time you are given the test
it does not show up, I for one am loath
to preclude the use of this test, imper-
fect though it be.
Forty States have responded to the
problems discussed here. It LI not as if
no other element of government has
become concerned about this problem.
I, for one, do not understand why sud-
denly this is a Federal problem. I
happen to believe that the State that I
represent, the great State of Texas, is
perfectly competent in setting stand-
ards for the use of polygraph, whether
it is being used to detect whether air-
line pilots are using cocaine or wheth-
er it is being used to determine where
convenience store cash register opera-
tors are stealing from the company
and therefore stealing from the people
who are buying milk, bread, and eggs
from the store.
I think the State of Texas is compe-
tent to determine what kind of stand-
ards ought to be used, in using poly-
graph, to ask people who are going to
work in day care centers whether or
not they have ever been indicted or
convicted for child molesting.
Now, I know that there are always
other ways of going back into all these
records. I am not saying that a failed
polygraph examine is in and of itself
proof of anything other than a failed
polygraph examine, but at least it
allows you to then go back and look at
the records more carefully. I think
this bill goes too far. I think it unnec-
essarily and unreasonably tramples on
States rights and I urge my colleagues
to vote no.
Do I think this bill is going to pass?
Yes, I do. Do I think, given the fact
that the House has already cast a vote
that would sustain a Presidential veto,
that the President may look at the
final product and decide that this is
not the way to go and veto it, and
therefore the vote would be on sus-
taining that veto, I do not know
whether that is going to happen or
not, but I think it is a clear possibility.
If we get a substantial vote here, I
think that gives the President more
leeway to look at this bill.
I do not believe this is a wise bill. I
do not think it is in the public interest.
I do not think it balances the rights of
people who do not want to take poly-
graph examines with the rights of
people who do not want someone using
narcotics while they are flying planes
or driving buses or driving trains.
There ought to be some reasonable
compromise. If the problem is with
private sector testing and the proce-
dures, perhaps we need some Federal
guidelines. But to come in and simply
outlaw prescreening, to so severely
limit the use of polygraphs for the pri-
vate sector when we in no way affect
the ability of the public sector, it is as
if we are not concerned about privacy
and the rights of people. If those
people happen to be working in wild
flower research at the Department of
Agriculture, suddenly we are not con-
cerned about their rights and the
problems with this test. If they
happen to be working as security
guards at a bank or if they happen to
be working in child day care centers or
they happen to be flying an aircraft,
suddenly we are concerned that no
one should have a right to ask them a
question and have some ability to -de-
termine whether they are answering
that question honestly so that they
might look behind that question. So I
know there are those who are con-
cerned about abuses, and so am I. But
one abuse does not justify another.
In my humble opinion this bill is not
in the public interest. I urge my col-
leagues to vote no.
I reserve the remainder of my time.
Mr. President, I am not sure who
controls time on this side. I think it
was equally divided.
The PRESIDING OFFICER. That is
correct.
Mr. GRAMM. I would like the dis-
tinguished Senator from Indiana to
control the time since I have to leave
the floor.
The PRESIDING OFFICER. The
Senator from Texas has yielded the
floor. Who yields time?
The Senator from Indiana controls
the time in opposition. Who yields
time?
Mr. QUAYLE addressed the Chair.
The PRESIDING OFFICER. The
Senator from Indiana.
Mr. QUAYLE. I yield myself such
time as I may consume.
The PRESIDING 01,710ER. The
Senator from Indiana is advised there
are 11 minutes and 8 seconds remain-
ing on his side. The Senator from Indi-
ana is recognized for such time as he
may need.
Mr. QUAYLE. I yield myself 8 min-
utes.
Mr. President, first, I congratulate
the chairman of the committee, Sena-
tor KENNEDY, on the legislation before
us. He and Senator HATCH have fought
S 1795
valiantly, and I think that they will in
fact have an overwhelming vote.
There was friendly but adversarial dis-
cussion on this bill.
My opposition goes to this bill on
two fundamental points. One, I do not
believe that the Federal Government
should involve itself in something in
which the State governments and
State agencies are doing quite well. It
has been pointed out that a number of
States which in fact already have
either a ban or requirements on poly-
graphs are taking it very seriously. I
think this is the beginning of getting
into preemployment screening, and I
do not know where it is going to end.
Once we start with lie detectors, we
will get on to perhaps drug testing, al-
though the Senate went on record yes-
terday saying it would not do that.
But drug testing is not reliable in
many cases either. We will get into all
sorts of other preemployment things,
perhaps like the preemployment psy-
chological tests that some might say
are harassing or intimidating. Once
the Federal Government starts down
this road, I do not know where it will
end.
As far as principle, I think that is a
very fundamental point that I simply
cannot overcome in trying to support
this bill, even though I, like others,
have a great lack of confidence in lie
detector tests. I cannot help if employ-
ers want to rely on information that is
not valid. If they want to make dumb
mistakes, I do not think it is the role
of the Federal Government to clear up
those mistakes.
- Second, I do believe there is a tinge
or perhaps a bit of hypocrisy in this
bill. What we do is say it is OK to do
in certain instances, particularly for
the Federal Government, but it is not
OK for the private sector. As a matter
of fact, even if we would apply the
standards of polygraphers for the Fed-
eral Government, that still would not
be OK for the private sector. Once
again we are saying that Washington
knows best.
Unfortunately, I had the Washing-
ton syndrome come home last night as
I was unable to attend the game but
Washington beat the very capable,
skillful, dedicated Indiana Pacers at
the Capital Centre, devastating them.
Washington won out in that basket-
ball game last night and now Washing-
ton is going to win out once again
today. I could not control or influence
the outcome of that basketball game. I
do believe, however, we have had some
impact on what Washington is going
to do now to my State and to the rest
of the country on this particular vote.
Mr. President, many Senators have
come to me and asked how they
should vote on this bill. And I am
going to say now to Senators who have
asked me that, if they have any desire
whatsoever to vote for this bill, they
ought to go ahead and vote for it. I
have philosophical concerns about it,
particularly the Federal preemption
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S 1796 CONGRESSIONAL RECORD ?SENATE March 3,T.1988
and the Federal Government getting
involved in something I do not believe
it should, and I do not know where
that road leads us, but I say this is
going to be construed more as a politi-
cal vote.
It is very important to some political
constituencies. I know that organized
labor has this very high on their
agenda. To many of the so-called civil
rights groups, I ? am sure this will be
cast as perhaps a civil liberties vote.
So I would say that Senators on this
side of the aisle particularly that are
inclined to give maybe the administra-
tion the benefit of the doubt and want
to go along in case, as the Senator
from Texas said, there may be a veto,
I would say there is almost no chance
at all for a veto. I do not think it is
going to happen. Therefore, I do not
think Senators, who have some con-
cern about this and are worried about
maybe not changing their vote on it
when the veto comes back?there is
not going to be a veto. This adminis-
tration will sign this bill.
This administration a year ago op-
posed this bill on the fundamental
philosophical point that this was an
unreasonable Federal intrusion and
something that was clearly relegated
to the States. This year they did not.
This year they set up a statement of
opposition on three minor concerns
that they had. This administration on
this bill is caving like a house of cards.
They in fact will not veto this bill. And
therefore why should, unless you are
just really philosophically opposed to
this, you go out on a limb on some-
thing that is not politically popular,
and vote in opposition to it?
So I would say to those Senators
who have still not made up their mind
that as far as my advice to them, if
you want to vote for this bill, you have
any inkling that you want to be on
record on the political right side of the
issue, and you do not have the major
philosophical objection as far as the
Federal Government, go ahead and
vote for it. Do not worry about a veto.
A veto is not going to happen. This ad-
ministration does not have the back-
bone at this time to veto this bill.
They will not do it. As a matter of
fact, you could probably almost send
anything down there under this bill,
and it will get passed. They will sign it.
They may say if you go too far in
conference we might not sign it. Well,
there will be lots of threats, a lot of
joking. But I know this administration
pretty well. I deal with them, dealt
with them for a number of years. And
on this issue from a year ago their po-
sition has changed dramatically. They
have folded up shop like a house of
cards, and they will not veto this bill.
I might just say, Mr. President, that
this has been a debate on what I con-
sider to be a very minor bill. I do not
consider this a major piece of legisla-
tion. I think it is a piece of legislation
that did not warrant the Senate's at-
tention. I do not think it warranted
the 3 days we took on this bill. There
could have been ways to delay this bill
even further. We decided not to be-
cause it just simply was not beyond
the few that have the philosophical
opposition. So there is no use to pro-
long debate.
The cloture has been invoked. We
can see where the votes are. There
were something like 122 amendments
that were filed that could have been
called up in a postcloture type of fili-
buster. It could have gone on and on
and on on a very minor piece of legis-
lation. It could have been a very long
and protracted debate but we decided
there was no reason to be a Don Qui-
xote on this, that there will be other
issues that will come along that will be
far more important legislation.
But even on this matter, having 120-
some amendments on the desk on
postcloture, spending 3 days invoking
cloture, also we now have an arrange-
ment for not putting a sense-of-the-
Senate resolution on the arresting of
Senators on this bill. We now have 5
hours I believe dedicated to the issue
after this bill. So it became much
more entangled with much more
debate than it indeed deserved. But I
think that these issues are important.
I am still, as I said, principally philo-
sophically opposed.
The PRESIDING OFFICER. The
Senator's 8 minutes have expired.
Mr. QUAYLE. I yield myself an ad-
ditional minute.
Mr. President, I am still opposed to
this bill. I think the role that we are
on involving ourselves in is something
that has been relegated to the States
properly?they have done a good job?
and is something that I cannot sup-
port. I will vote in opposition to that
because of the double standard I think
it sets. It is a philosophical opposition
that I have.
But once again, those Senators that
are inclined to vote for this or trying
to think this issue through, if you
have any inclination at all to vote for
this bill, you might as well do it. It will
be signed. You will not have to face a
veto because the administration will
simply sign this legislation in my judg-
ment.
I reserve the balance of my time.
The PRESIDING OFFICER. Who
yields time? The Senator from Indiana
has 2 minutes and 32 seconds remain-
ing.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The
Senator from Utah.
Mr. HATCH. Mr. President, I would
like to take a few minutes to say why
we are here today and why we are
where we are today. After 3 days of
debate and numerous amendments, we
are on the verge of passing a signifi-
cant change in Federal labor laws.
Why? Because the bill before us, S.
1904, is a carefully crafted compromise
designed to protect both individual
rights and employer rights. -
Mr. President, I believe my record in
this body is second to none when it
comes to defending the rights of the
private sector. But I have been a will-
ing participant in fighting for employ-
ee rights as well. That is why I am
proud to be the lead cosponsor of this
legislation along with the sponsor,
Senator KENNEDY. It protects both em-
ployers and employees and does so in a
manner that does not violate the other
fundamental interests.
The record is fairly clear on the limi-
tation of the polygraph. But do not
take my word for it. Do not take the
committee word for it. Look at the sci-
entific record. All the scientific data
indicates that preemployment poly-
graphs cannot?I reemphasize that
word "cannot"?predict future per-
formance. The machine was simply
not designed to predict future per-
formance.
Given this fact and the fact that
more than 2 million Americans are
given polygraphs every year, we know
that even under the best of circum-
stances, with the best polygrapher
doing the best test and perming the
best analysis 300,000 honest Ameri-
cans are branded as liars every year.
That is pure and simply wrong.
That is a stigma that they are going
to wear like a scarlet letter every day
of their remaining lives. Let us change
the world "lies" to "careers."
The evidence also indicates that a
carefully crafted polygraph test given
in conjuction with an investigation can
be of assistance. This bill permits all
employers to use the polygraph in
such instances so long as the results of
the exam are not the sole basis of the
resulting employment action. In other
words, the bill is a reasonable and re-
sponsible attempt to focus use of the
polygraph where it is likely to be the
most accurate.
Mr. President, if polygraph testing is
so critical to screening of felons and
drug abusers, if polygraph testing was
the last defense against anarchy in the
workplace as the opponents on the
floor have argued, then one would
imagine that States like New Jersey
where the polygraph is already
banned would be awash in criminality.
The State's economy should be devas-
tated on the brink of collapse but of
course everybody knows that it is not.
Over the last 3 years I have asked
every employer organization that has
met with me on this issue to pull to-
gether data, hard evidence, that dem-
onstrates how the polygraph ban has
hurt these States. To this date, I have
received absolutely no data because
there is none. We have also heard
about how effective the polygraph is
in scaring _confessions out of appli-
cants.
I do not doubt for a minute that the
polygraph is a very terrifying experi-
ence. But really, is this body really
ready to say that we feel it is so impor-
tant for employers to be able to terrify
a few applicants into confessions that
we are willing to pay the price of
branding 300,000 honest AmeriCans as
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March 3, 1988 CONGRESSIONAL RECORD ? SENATE S 1797
liars every single year? I think not. I
am not willing to do that.
Mr. President, I wonder how many
of my colleagues would like to take a
polygraph on a regular basis. I wonder
how many of them would like to take
a polygraph, period. I wonder why
anybody would want to take one.
There are some instances where per-
haps we have to utilize them. This bill
takes care of those instances. But I do
not? think anybody wants to take
them.
I wonder how many of us would like
to see our chances to represent our re-
spective States hang upon a 15-minute
special polygraph given by some ill-
trained, unbonded examiner of, you
know, someone else's choosing.
Well, that is disturbing to me. I
think it is disturbing to many other
People. Of course, with that under-
standing, let us just welcome every-
body to the real world of the poly-
graphing in the private sector. This
bill is going to change that.
Mr. President, employers are not
without tools to screen applicants. But
unfortunately some, I would say the
best, tools really take some time:
Checking resumes, references, person-
al involvement in interviews, testing
where appropriate, and knowing how
to ask the applicant questions. These
methods are still the key to hiring
people. We all know that, because that
is the way we hire our staffs here.
Finally, Mr. President, some have
argued that the banning of free em-
ployment polygraph tests will destroy
the private sector. As the ranking
member of the Committee on Labor
and Human Resources, I can say with
great confidence that this bill is not an
economy destruction bill. I can guar-
antee that a lot of them will come out
of this committee in the future, in this
year. You will be able to know when
they come, because I will be right here
arguing against them, and I will be ar-
guing vociferously against them, but
this is not one of those bills. S. 1904 is
a carefully crafted compromise de-
signed to protect employer rights and
the rights of employees. I hope my
colleagues will support this bill and
give individuals throughout the
Nation some needed added protection.
Mr. President, I appreciate the ef-
forts made by our staffs on this bill,
and I appreciate the leadership of Sen-
ator KENNEDY on this bill. He has been
prepared and has done a terrific job,
and he has explained many good rea-
sons why this bill is important. I have
enjoyed working with him and will
enjoy working with him through the
rest of this process.
This bill deserves to be passed for
the benefit of employers and employ-
ees. It is the right thing to do.
I am sick and tired of people using
this instrument in an improper way,
knowing that with 15-minute quickie
polygraphs, virtually all of them are
not accurate.
I ask unanimous consent to ?have
printed in the RECORD a letter from
the National Federation of Independ-
ent Business and a letter from the Na-
tional Restaurant Association.
There being no objection, the letter
was ordered to be printed in the
RECORD, as follows:
NATIONAL FEDERATION OF
INDEPENDENT BUSINESS,
- Washington, DC', March 1, 1988.
Hon. ORRIN G. HATCH,
U.S. Senate,
Washington, DC.
DEAR ORRIN: On behalf of the more than
500,000 small business members of the Na-
tional Federation of Independent Business
(NFIB), I want to convey our support for
your efforts to delete the mandatory post-
ing requirements (Section 4) contained in S.
1904, the Polygraph Protection Act of 1987.
If a roll call vote occurs on your amend-
ment, it will be a Key Small Business Vote
for NFIB in the 100th Congress.
As our field representatives travel the
country each day renewing memberships,
we ask our members to respond to a survey
of eight questions. The questions on the
survey are changed each quarter. Though
not taken from a statistically valid stratified?
sample, the responses are certainly indica-
tive of the pulse of small business at the
time they are taken.
On the issue of polygraph examinations,
94.7 percent of those surveyed do not ad-
minister polygraph tests to prospective em-
ployees. With regard to current employees,
93 percent do not administer polygraph
exams.
Government paperwork, whether state or
federal, remains a burden to small business-
men and women. The notification require-
ment in S. 1904 serves no useful purpose in
our view. It is patently absurd to require
employers to post a notice for an action
they cannot take. Therefore we support
your efforts to relieve small business of this
improper burden.
Once again, Orrin, I thank you for your
efforts on behalf of our nation's small em-
ployers.
Sincerely,
JOHN J. MOTLEY
Director, Federal
Governmental Relations.
NATIONAL RESTAURANT ASSOCIATION,
-Washington, DC, February 26, 1988.
Senator ORRIN G. HATCH,
Washington, DC.
DEAR SENATOR HATCH: It is my understand-
ing that Senate floor action is expected on
S. 1904, the Polygraph Protection Act of
1987, in the near future. As always, thank
you for your efforts on behalf of the Na-
tional Restaurant Association in crafting
this legislation.
S. 1904 addresses a primary concern of the
business community?it preserves the ability
of employers to utilize polygraphs in the
event of theft or misconduct in the work-
place. This bill is significantly less restric-
tive than the House bill proposing an abso-
lute ban on polygraph testing, which the as-
sociation adamantly opposes.
I urge your ardent protection of S. 1904
section 7(d) provisions that preserve inci-
dent-specific polygraph testing. Only if
these provisions are retained during floor
consideration and in conference, can the as-
sociation maintain its support of polygraph
Many thanks for your continued interest
in the foodservice industry.
Sincerely,
MARK GORMAN,
Senior Director,
Government Affairs.
S. 1904?POLYGRAPH PROTECTION ACT
(Kennedy (D) Massachusetts and 13 others)
S. 1904 differs in various respects from its
House counterpart, H.R. 1212. The Presi-
dent's senior advisors have indicated that
they would recommend that H.R. 1212 be
vetoed. However, the Administration also
strongly opposes S. 1904 unless amendments
Including the following are made:
Expand section 7(d) (which would permit
Polygraph examinations to be administered
In connection with ongoing investigations of
business loss or injury) to allow the investi-
gation of serious workplace problems that
threaten not only material loss, but also the
health, safety and well-being of other em-
ployees;
Revise section 8 to transfer from the De-
partment of Labor to a more appropriate
agency the responsibility for establishing
standards governing certification of poly-
graph examiners; and
Delete provisions in section 6 which would
authorize private civil actions by employees
or job appliants against employers who vio-
late the provisions of S. 1904. These provi-
sions are unnecessary given the other en-
forcement provisions contained in the bill.
Mr. HATCH. Mr. President, I should
like to make a statement on adminis-
tration policy.
While it is clear that the administra-
tion still opposes S. 1904, they have
not sent us a veto threat.
I find this shift of position encourag-
ing. I look forward to working with
the administration during the confer-
ence, and I hope we can report a bill
that the President will be able to sign.
Mr. President, I believe that the ad-
ministration has been able to look and
realize that there are some really good
arguments for this particular legisla-
tion. I think they also understand that
this legislation is a carefully crafted
compromise among all sides and that
we have worked hard to pass this legis-
lation.
I hope that by the vote today, we
send the message that this legislation
deserves to become -law. I will do ev-
erything I can through the remaining
part of this process to see that it does.
I compliment our committee and our
staff members, and certainly Senator
KENNEDY and others who have played
an important role.
The PRESIDING OFFICER. Who
yields time?
The Senator from Massachusetts is
advised that his side has 11 minutes
and 41 seconds remaining.
Mr. KENNEDY. I yield myself 8
minutes.
The PRESIDING OFFICER. The
Senator from Massachusetts is recog-
nized for 8 minutes.
Mr. KENNEDY. Mr. President, as
we come to the final moments of dis-
cussion of this legislation, I want to
take a moment of the Senate's time.
First, I wish to express my apprecia-
tion to the Senator from Utah [Mr.
HATCH], who is the ranking minority
member of the Committee on Labor
and Human Resources, the former
chairman of this committee, with
whom I have had the opportunity to
work closely in the shaping and the
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S 1798 CONGRESSIONAL RECORD ? SENATE
drafting of this legislation. It has been
an ongoing and continuing challenge.
Senator HATCH had introduced other
legislation dealing with polygraphs in
the last Congress. We were unable to
get floor consideration of that legisla-
tion, and we have gone back to the
drafting board. We now come to the
Senate and urge our colleagues to vote
favorably on what we consider to be
an extremely important piece of legis-
lation that will provide a much greater
degree of dignity to the American
worker, fairness to the worker, and a
greater sense of realism in terms of
the use and abuse of polygraphs in the
workplace.
Mr. President, we do not take the
Senate's time lightly. We believe that
this legislation is important. Over the
course of this past year, we have been
able to work with a number of individ-
uals, corporations, and trade associa-
tions in the private sector in fashion-
ing and shaping this legislation. I, for
one, am very grateful for their help,
their assistance, and their insights as
well as for their cooperation and sup-
port. We have worked with a number
of the representatives of workers who
have given enormously revealing testi-
mony of what has happened to many
of them and is happening to many of
them in different job sites all across
this country. It is indeed a chilling
story that has been revealed to us, not
only during the course of our hearings
but also in private conversations. We
are grateful to them for their help and
support.
In the past hours, we have received
some information from the adminis-
tration in connection with reservations
they have expressed about this par-
ticular approach. We have been very
much aware of the division that had
existed within the administration with
respect to their official position. Some
of the agencies within the Justice De-
partment, who have commented upon
the value of polygaphs in the past,
had differing views from the position
which has been taken by the Depart-
ment of Labor.
By and large, I feel that their in-
volvement has been a constructive
one; and we hope that before the ink
is dry on this legislation, we might be
able to persuade them, and to gain
their support. I think their impact has
been important and useful, but I think
the legislation must come into law
with or without their support. I would
prefer that we have their support.
Mr. President, as we come to a final
conclusion on this matter, I want to
remind our colleagues why this meas-
ure is of importance. We have more
than 2 million polygraphs given in this
country every year, and that number
has grown dramatically, almost expon-
entially, all across our Nation.
It is fair, I believe, in evaluating the
effectiveness of the polygraph, in
trying to tell the difference between
truth and deception, for Members of
Congress to speak on the issue. In
many instances, it is a instrument
which is abusing the rights of millions
of workers and in many instances scar-
ring those individuals in ways that
they will remember for the rest of
their lives, and that their families will
remember for the rest of their lives.
We have been extremely fortunate
in having the Office of Technology As-
sessment do a very thorough and com-
prehensive review of all the studies
that have been done on polygraph
over a period of some 18 years, right
up to the most modern ones. We have
a number of experts in this area. One
of the most significant and thoughtful
is Professor Raskin, of the State of
Utah.
What we find are some undeniable
truths: With the current number of
polygraphs taking place in this coun-
try, there are going to be up to 320,000
individuals, workers, who will be
wrongfully labeled by the polygraph.
Two-thirds of those individuals will be
telling the truth but labeled deceptive.
What that means in terms of those
families, what that means in terms of
the possibilities of future employment,
what that means in terms of their
future is one of the most heartrending
stories that affect working men and
women in this country.
That problem is growing. Somehow
or other even on the floor of the
Senate, we have the false understand-
ing or false impression that we are get-
ting truth with the administration of
the polygraph.
The scientifie and medical informa-
tion is that truth is only part of the
story and a small part of the story.
We have not ruled out all poly-
graphs, Mr. President, and we have
recognized that under certain circum-
stances when you have a reasonable
suspicion that individuals have been
involved in a specific economic loss on
injury, we permit under limited cir-
cumstances the use of the polygraph.
Under these circumstances, the possi-
bility of gaining the truth is enhanced
dramatically, and under these circum-
stances the polygraph itself will not be
used solely in making the ultimate
judgment in terms of the employment
possibilities for that individual, with-
out additional supporting evidence.
So, we believe that we have here rec-
ommending to the Senate an equitable
balance.
The PRESIDING OFFICER. I must
reluctantly advise the Senator the
time has expired.
Mr. KENNEDY. I yield myself 2
minutes.
The PRESIDING OFFICER. The
Senator is recognized for an additional
2 minutes.
Mr. KENNEDY. With this balanced
bill, that has been described in the
past days, we believe that we are meet-
ing our responsibilities both to the
workers and to the private sector.
Mr. President, in just making some
concluding remarks, I want to remind
our colleagues who are concerned
about the Federal aspects of this legis-
lation that this is an? intrusion in the
March 3, 1988
States, that one of the great States
righters of this body and one of the
great libertarians of this body was a
distinguished Senator from North
Carolina, Senator Ervin. No one ever
accused Senator Ervin of wanting to
extend the long arm of the Federal
Government, but those of us who had
the opportunity to serve with him
know of his deep devotion to the con-
stitutional civil liberties of this coun-
try, and it was Senator Ervin who said
over a decade ago that the polygraph
is "20th century witchcraft". He was
right.
So, Mr. President, ,we understand
that the polygraphs do not stop lies; in
too many instances they tell lies.
It is important that we in this body
are going to put the polygraph, which
has been used as an instrument to in-
timidate and to terrify so many work-
ers in this country, on the scrap heap,
so to speak, with other instruments
which have been used in the same
manner in the past.
I again think that with this legisla-
tion we are going to see the day when
the average worker in this country is
going to be able to walk into his or her
workplace with the sense of dignity
and self-respect.
With this legislation, I think we are
striking a blow for greater sense of de-
cency not only for millions of workers
but for Amerfican society.
I urge my colleagues to vote in favor
of this legislation.
I withhold the remainder of the
time.
The PRESIDING OFFICER. The
Senator from Massachusetts is advised
he has 1 minute and 15 seconds re-
maining.
Who yields time to the Senator from
Mississippi?
Mr. QUAYLE. I yield the remainder
of my time to the Senator from Missis-
sippi.
The PRESIDING OFFICER. The
Senator from Mississippi has 2 min-
utes and 32 seconds.
Mr. COCHRAN. Mr. President, I
thank the distinguished Senator from
Indiana for yielding to me. He has pro-
vided strong leadership in our commit-
tee on this issue and I commend him
for that.
In looking at the proposal before us,
one aspect jumps out at the Senate.
Here again we are being asked to sub-
stitute Federal regulations, Federal
judgment on issues such as qualifica-
tions for the performance of a job, li-
censing in the States, for the judg-
ment and wisdom of State legislators
and State government officials, for no
good reason.
I say that, Mr. President, because in
States such as mine?where for 20
years there has been a law on the
books regulating the administration of
polygraph examinations and the li-
censing of polygraph examiners?
State regulation has worked very well.
While workers and prospective em-
ployees are protected, those who have
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March 3, 1988 CONGRESSIONAL RECORD ? SENATE
a legitimate interest in the use of poly-
graphs as an investigative technique?
the State government, city govern-
ments, police departments, other in-
vestigators?are permitted to use them
because they have been shown to be
useful tools in the investigative proc-
ess.
One witness before our committee
testified that in States where there
are no restrictions on the use of poly-
graphs for prospective employees or
those in the workplace, losses from in-
ventory are 25 percent less than in
States where polygraphs are banned,
such as in Massachusetts and other
States.
The evidence is clear that passage of
this legislation today will increase con-
sumer costs in many areas and in-
crease losses in certain businesses.
Others who testified in opposition to
the bill included the Jewelers of Amer-
ica, American Retail Federation, and
others who have had day-to-day prac-
tical experience, in the workplace in
selective use of the polygraph exami-
nation.
Obviously, the committee felt that
the polygraph examination could be
useful and was appropriate in some
circumstances, since it exempted many
areas of Government activity and
many contractors who do business
with the Federal Government.
So, in the wisdom of the Federal
Government, on the one hand, the
polygraph is lawful and appropriate to
be used and, on the other, it is not.
I suggest, Mr. President, that we
vote against this bill. Let us leave the
regulation of the use of polygraphs to
the States where it rightfully belongs.
Mr. FOWLER. Will the Senator
from Massachusetts yield for a ques-
tion?
Mr. KENNEDY. I certainly will yield
for a question from the Senator from
Georgia.
Mr. FOWLER. We need the contin-
ued use of the polygraph for preem-
ployment screening of those who
handle controlled substances. The
House passed by a very wide margin
such an exemption to the Williams
bill?by a vote of 313 to 105. Would
the Senator from Massachusetts be
willing to accept that language in the
conference between the two bodies on
this legislation?
Mr. KENNEDY. Senator HATCH and
I have discussed this, we have dis-
cussed this with the other Senate con-
ferees, discussed this with the spon-
sors of the House amendment, and dis-
cussed this with the principal sponsors
and likely House conferees. We will be
willing to agree to recede to the House
conferees insistence on the amend-
ment dealing with the employees who
handle controlled substances.
Mr. FOWLER. I thank the Senator
froth Massachusetts, and will not offer
my amendment.
Mr. DURENBERGER. Mr. Presi-
dent, I rise today in support of S. 1904,
the Polygraph Protection Act of 1987.
This bill is designed to curb the abuses
of widespread polygraph testing and
to protect the rights of individuals
who are subjected to the lie detector
test. I applaud the efforts of my dis-
tinguished colleagues from Massachu-
setts and Utah, Mr. KENNEDY and MT.
HATCH, in crafting a sensible, fair re-
sponse to the growing misuse and
abuse of polygraph examinations.
Over the last decade, private em-
ployer's use of polygraphs has in-
creased dramatically. The American
Polygraph Association estimates that
approximately 98 percent of the over 2
million polygraphs given each year are
administered by private employers.
Only 2 percent of all tests are adminis-
tered by the public sector. Mr. Presi-
dent, I find this fact alarming. Over 2
million tests are being given each year;
yet, there are no uniform standards
for polygraph machines, there are no
uniform licensing requirements for ex-
aminers, and there are no uniform
protections for individuals who take a
polygraph examination. Up until now,
the Federal Government has relied
upon State legislatures to regulate the
use of lie detector tests. However, I be-
lieve that the time has come for Con-
gress to establish national minimum
standards for polygraph examinations.
S. 1904 bans the use of lie detector
testing for preemployment and
random employee screening. Employ-
ers have increasingly been using lie de-
tectors to test job applicants and cur-
rent employees to determine character
traits such as honesty and trustworthi-
ness. However, there is no scientific
evidence to suggest that a polygraph
test can accurately or reliably predict
the honesty or dishonesty of an indi-
vidual. The Polygraph test does accu-
rately measure stress by plotting
changes in three physiological re-
sponses?blood pressure, respiration,
and sweat gland activity?but it cannot
pinpoint the cause of stress. And be-
cause there is no physiological re-
sponse unique to lying, stress caused
by anger, fear or anxiety will produce
the same physiological reaction as
stress caused by deception.
As a result, many honest individuals
are being denied employment because
they have failed a polygraph exam,
while many dishonest individuals are
being employed because they were
able to outsmart a machine or an ex-
aminer. Mr. President, polygraph ex-
aminers simply cannot identify stress
caused by deception, nor can they
assess such obscure qualities as hones-
ty or trustworthiness in a 15-minute
interview. Even in criminal investiga-
tions, where there is a scientific basis
for using the polygraph, interviews of
suspects regarding their involvement
in a specific incident last at least 2
hours.
S. 1904 does recognize the scientific
basis for using the lie detector test in
investigations of specific incidents.
The bill allows employers to use the
polygraph examination when investi-
gating an economic loss; however, the
employer must meet the following re-
S 1799
quirements before requesting an ex-
amination. First, the employer must
have experienced an economic loss,
such as theft, embezzlement, or indus-
trial espionage. Second, the employer
must have reason to believe that the
employee had access to the property
in question. Third, the employer must
have reason to suspect that the em-
ployee was involved in the incident. Fi-
nally, the employer must file a police
report: an insurance report; or an in-
ternal statement describing the details
of the situation. Once an employer has
met these requirements, he or she may
request an employee to take a poly-
graph test as long as the test does not
violate State or local law, or any col-
lective bargaining agreement.
Under the bill, an employee has the
right to refuse to submit to the poly-
graph examination. And, his or her
employer is prohibited from taking
any adverse employment action based
solely upon that refusal. An employer
may only discipline or dismiss an em-
ployee when there is additional sup-
porting evidence.
If an employee does submit to a
polygraph examination, S. 1904 pro-
vides important protections. For exam-
ple, an employee must be advised of
his or her rights in writing prior to the
examination, and the employee must
be given an opportunity to review all
questions which will be asked in the
interview. S. 1904 also defines the
types of questions an examiner may
ask, and specifies that the employee
may terminate the test at any time.
Again, once the interview is complet-
ed, an employer may not take discipli-
nary action against an individual
based solely upon the results of the
polygraph examination. However, evi-
dence used to support dismissal may
include statements or confessions
made during an examination.
To protect the privacy rights of the
tested employee, S. 1904 provides that
the information disclosed during an
examination may not be released to
anyone other than the employee or
employee's designee, the employer,
government agencies authorized to
conduct such tests, or any person au-
thorized by a warrant to obtain such
information. Because irrelevant, yet
highly personal, details are often dis-
closed in a polygraph examination, I
believe that this provision is a particu-
larly important safeguard against the
misuse of information obtained in an
interview.
The final component of S. 1904 gov-
erns the regulation of polygraph ma-
chines and examiners. This legislation
requires the Secretary of Labor to set
minimum standards for polygraph ex-
aminers relating to conduct, compe-
tency, bonding, instrumentation, train-
ing, and recordkeeping. I believe uni-
form standards are necessary to
ensure a minimum degree of accuracy
in an already unreliable test, and to
prevent employers from taking em-
ployment action based on bad results
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S 1800 CONGRESSIONAL RECORD ? SENATE
obtained from a faulty instrument or
an inexperienced examiner.
Federal, State, and local govern-
ments are all exempt from the provi-
sions of S. 1904, as are Federal Gov-
ernment contractors with national se-
curity responsibilities. As former
chairman of the Senate Select Com-
mittee on Intelligence, I recognize the
necessity of a "national security" ex-
emption. The polygraph examination
has limitations, but it does play a role
in the effort to protect highly sensi-
tive information.
Mr. President, opponents of S. 1904
use the above exemptions to argue
that polygraph testing should be good
enough for use in the private sector if
it is good enough for use in the public
sector. I don't buy this statement, be-
cause the Federal Government has in
place very strict rules governing lie de-
tector testing. For example, the Feder-
al Government trains its own examin-
ers, defines who can be tested, and
prohibits the denial of employment
based solely on the results of a poly-
graph. In general, Federal Govern-
ment uses the lie detector?test as only
one component of an extensive back-
ground investigation.
Because S. 1904 sets minimum na-
tional standards for use of the lie de-
tector test, this bill will only affect
States which have no polygraph regu-
lations or have less strict laws. There-
fore, in States where use of the lie de-
tector test has been banned, such as
my home of Minnesota, S. 1904 will
have little effect.
Mr. President, I would also like to
express my support for the amend-
ment offered by my distinguished col-
league from Ohio, Mr. METZENBAIIM,
on an issue unrelated to polygraph
testing. My colleague's amendment,
which I am pleased to cosponsor, ex-
presses this body's opposition to the
proposed $400 million World Bank
loan to the Mexican steel industry.
The World Bank has proposed to lend
Mexico $400 million to restructure and
? modernize an inefficient steel indus-
try. However, I - cannot understand
how this loan will assist economic de-
velopment when there is already an
excess capacity of world steel produc-
tion. Mexico will be unable to repay its
World Bank loan and unable to repay
its loans to American banks if it
cannot sell steel. And although I agree
that it is in the best interest of the
United States to promote growth in
the Mexican economy. I do not believe
that a $400 million loan to the Mexi-
can steel industry will provide steady
jobs and stable growth. This loan will
only put Mexico deeper into debt and
will further harm an ailing United
States steel industry. I urge my col-
leagues to send a strong message to
the World Bank that it should reject
the proposed loan to Mexico.
Mr. President, I support S. 1904 be-
cause I believe that American workers
need protection from the widespread
abuse and misuse of the lie detector
test. The bill crafted by my colleagues
from Massachusetts and Utah is a sen-
sible and balanced response to a grow-
ing problem, and it has broad support
in both the public and private sectors.
I am pleased that S. 1904 is being con-
sidered by this body. I urge all of my
colleagues to support the Polygraph
Protection Act of 1987.
Mr. KERRY. Mr. President, I sup-
port S. 1904, the Polygraph Protection
Act of 1987. I believe that this legisla-
tion represents an appropriate balance
of the interests of employees and em-
ployers, and is a reasonable and fair
solution to the problems inherent in
widespread polygraph testing. This bill
has bipartisan support, and also has
support from labor, business, and civil
liberties organizations. As a member of
the Labor Committee in the 99th Con-
gress, I cosponsored similar legislation.
I commend Senator KENNEDY for
bringing this bill before the Senate.
I oppose the use of polygraphs in
preemployment screening, which this
bill would prohibit. This bill does not
prohibit the use of polygraphs in post-
employment investigations of econom-
ic loss, with appropriate safeguards.
This is a reasonable and balanced ap-
proach. The bill contains appropriate
exemptions where they are needed,
and I oppose the attempts of some to
carve out additional industry exemp-
tions. This legislation does not need
amendments to cater to specific spe-
cial interests, beyond the carefully
crafted amendments included in the
bill as amended by the Senate.
S. 1904 already has the support of a
number of organizations which op-
posed other polygraph bills, including
the American Association of Rail-
roads, the American Bankers Associa-
tion, the National Association of Con-
venience Stores, the National Grocers'
Association, the National Mass Retail-
ers Institute, the National Restaurant
Association, the National Retail Mer-
chants Association, and the Securities
Industry Association.
The use of polygraphs has tripled
over the past 10 years. As industry re-
liance on this device grows, Congress
has an obligation to decide whether
the use of this tool constitutes an in-
fringement of the rights of employees
and prospective employees. I believe
that polygraph use in preemployment
screening, because of questions about
its reliability as well as the possibility
of abuse, constitutes such an infringe-
ment.
The polygraph instrument, some-
times called a lie detector, cannot ac-
tually detect lies. It is wholly depend-
ent on a subjective reading by a pdly-
grapher. A 1983 OTA study by Dr.
Leonard Saxe of Boston University
concluded that lies were detected be-
tween 50.6 percent to 98.6 percent of
the time, and that true statements
were correctly classified between 12.5
percent and 94.1 percent of the time.
That represents not much better than
a toss of the coin in many instances.
These statistics refute the use of the
polygraph as a means of judging the
veracity of a subject.
As a prosecutor in Massachusetts, I
found the polygraph to be sometimes
a useful tool in criminal investigations.
I am pleased, therefore, that this legis-
lation contains an exemption for Fed-
eral, State, and local governments as
well as for contractors doing sensitive
defense work. I also believe that an ex-
emption for private employers in the
areas of armored-car personnel, securi-
ty alarm systems, and other security
personnel is warranted as a law en-
forcement tool, in conjunction with
other law enforcement measures.
But of the estimated 2 million
people a year who are administered
polygraph tests, 98 percent of them
are given by private business, with 75
percent of those tests being given for
preemployment screening.
The OTA study concluded that "the
available research evidence does not
establish the scientific validity of the
polygraph test for personnel screen-
ing." Yet the increasing amount of
preemployment testing means an in-
creasing number of our citizens who
are dependent on the results of this
often unreliable machine. American
courts cannot compel defendants to
take these tests, and employers should
not be able to mandate the test as a
condition of employment.
I also have other concerns about the
use of the polygraph as a tool of in-
timidation. A Florida polygrapher
noted that the polygraph was "the
best confession-getter since the cattle
prod." Many polygraphers say that
the bulk of their confessions take
place just prior to the actual examina-
tion when the subject is told about the
high accuracy of the machine. They
believe that the specter of an infallible
lie detector causes people to confess
rather than be caught by the machine.
This technique is unfair to prospective
employees, who are not guilty of any
crime, and is more reminiscent of the
methods of a totalitarian country than
of the United States of America.
For this reason I have opposed ef-
forts to add an exemption to this bill
for voluntary polygraph examinations.
I have serious questions about how
voluntary these tests would actually
be in many instances, given the bal-
ance of power between employer and
employee and the inherent potential
for coercion in a so-called voluntary
test. I have also opposed other efforts
to open up loopholes in this bill by
granting exemptions for specific indus-
tries. Given the unreliability of poly-
graph testing, particularly the 15
minute quickie tests given in many
commercial and industry situations,
these tests are unwarranted, unneces
sary and unfair.
The State of Massachusetts long ago
banned the use of the polygraph for
employment purposes. In 1959, we
became the first State in the country
to bar its use in employment. As is
well known, the economy of Massa-
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Mai:ch 3, 1988 CONGRESSIONAL RECORD ? SENATE
chusetts has thrived without the use
of this device in industry. Merchants
and industries in Massachusetts have
not suffered the huge losses that some
have alleged would take place with a
polygraph ban. I am told that some
national companies which operate in
States like Massachusetts, or the 20
other States that ban or restrict poly-
graph use, do test prospective employ-
ees out of State on a regular basis.
This bill would end this wholesale cir-
cumvention of our State laws.
This is an important and timely
piece of legislation. Last year, we cele-
brated the 200th anniversary Of our
Constitution. This year, let us remem-
ber that the Constitution is a living
document, and let us protect the con-
stitutional rights of American workers.
I am pleased to join with my col-'
leagues in supporting the passage of S.
1904.
Mr. MATSUNAGA. Mr. President, I
rise to urge my colleagues to pass, as
amended, the Polygraph Protection
Act of 1987. As reported by the Labor
and Human Resources Committee the
bill strikes a delicate balance between
protecting the rights of employees and
ensuring that employers have appro-
priate means to protect their business-
es in cases of specific illegal incidents.
Mr. President, the polygraph test is
administered over 2 million times each
year. In the private sector, most poly-
graph tests are administered for
preemployment screening purposes of
random tests of employees. The test
measures changes in blood pressure,
respiration patterns, and perspiration.
The test does not measure deception.
Changes in these physiological condi-
tions may also indicate fear, anxiety,
embarrassment, or resentment rather
than deception.
Mr. President, the testimony pre-
sented to the Committee on Labor and
Human Resources, of which I am a
member, indicates that the broad, pro-
spective questions which are common
to preemployment and random poly-
graph examinations are often Inaccu-
rate. The inaccuracy of polygraph ex-
aminations does not vary by industry.
Although we may be particularly sym-
pathetic to the concerns of some in-
dustries in their effort to protect
themselves from unscrupulous poten-
tial employees, there is no evidence
which leads us to believe that the use
of polygraphs is any more effective for
preemployment and random screening
in these particular industries. I urge
my colleagues, therefore, to avoid di-
luting the protections offered in this
measure by adopting industry-wide ex-
emptions to the bill.
The committee did find that a poly-
graph test used to investigate specific
illegal incidents under strictly regulat-
ed conditions can be effective, though
it is far from infallible. The bill, there-
fore, allows the use of a polygraph test
in the course of an ongoing investiga-
tion if an employee had access to the
property that is the subject of the in-
vestigation and the employer has a
reasonable suspicion that the employ-
ee was involved in the incident. How-
ever, adverse action may not be taken
against an employee based solely upon
the results of a polygraph test; addi-
tional supporting evidence must be
presented to justify such action. Fur-
thermore, the bill requires that em-
ployees may refuse to take the exami-
nation without fear of recrimination.
In addition, the bill established specif-
ic conditions under which the test may
be administered and establishes mini-
mum qualifications for polygraph ex-
aminers.
Finally, Mr. President, though many
would like to leave the resolution of
this issue to the States, it is clear that
State regulation has not been and will
not be effective. State policy on poly-
graph use varies widely. In fact, nine
States have no laws governing the use
of polygraphs. Without interstate uni-
formity, employers and examiners
have been able to circumvent the in-
tention of State laws, and individuals
are often uncertain about the rights
they may have with respect to poly-
graphs. It is clearly time. that a uni-
form national policy be adopted.
Mr. President, I wish to congratulate_
the two principal sponsors of this leg-
islation, the senior Senator from Mas-
sachusetts, Mr. KENNEDY and the
senior Senator from Utah, Mr. HATCH,
I am pleased to be an original cospon-
sor of this bipartisan measure to pro-
tect employees and job applicants
from unjust employment actions. I
strongly urge my colleagues to support
S. 1904.
Mr. GRASSLEY. Mr. President, I
would like to address the subject
before us, namely, the use of poly-
graphs in the workplace.
The employment relationship is one
which we, in our free market economy,
value highly. Businesses, large and
small, depend upon their workers to
make goods and deliver services. Like-
wise, individuals look to employers to
provide an opportunity to earn a
living. A cooperative and trusting rela-
tionship between employees and em-
ployers generally creates the best envi-
ronment for good profits, as well as
good wages.
In regulating the workplace, Con-
gress should strive to foster coopera-
tion between workers and business
owners. The current proposal before
the Senate on polygraphs, does not,
however, advance that spirit of coop-
eration. Rather, the legislation is a
piecemeal approach to supposed-em-
ployer abuse of polygraphs.
First, the bill exempts government
employers, from State ?and local to
Federal offices. If the polygraph is so
untrustworthy, why are we allowing
Government officials to continue to
use it? It seems to me that we in the
Government, especially we in the Con-
gress, must begin to live by the legisla-
tion we impose on private industry.
Second, the bill attempts to create a
narrow situation in which an employer
may require an employee to take a
S 1801
polygraph. But, the exception may
swallow the rule. As long as an em-
ployer has a "reasonable suspicion"
that an employee was involved in an
incident where the employer suffered
a loss or injury, the employer can
order a polygraph. The only thing the
employer must do is file a report, and
that report can, at a minimum, be
filed in the employee's personnel file.
As a result of this exception, a host
of new litigation will arise. The courts
will pass upon whether the employer
was justified in ordering the poly-
graph?whether the employer had
"reasonable suspicion." And, the
courts will decide whether the employ-
er filed an appropriate report about
the incident leading up to the poly-
graph.
Finally, the bill creates a blanket
prohibition on the use of polygraphs
as a preemployment screening device.
Before there is any employment rela-
tionship between the applicant and
the employer, we are telling the em-
ployer that he may not use the poly-
graph as a final check on the appli-
cant, to confirm or corroborate the
judgment about the applicant.
The vast majority of employers in
this country do not use the poly-
graph?it is costly and its value is lim-
ited. But there are industries which
may find the polygraph to be worth-
while?those involved in child care, se-
curity services, financial services- or
narcotics, just to mention a few. The
complete ban may unnecessarily limit
these employers.
Clearly, the polygraph cannot be a
substitute for good management and
supervision. And Americans must be
protected from unwarranted invasions
by employers and those who adminis-
ter the polygraph. The use of poly-
graphs may have gotten out of hand
in the last few years, and while the
problem needs to be addressed, I do
not believe that this bill is our best
step forward. I will vote against S.
1904.
Mr. METZENBAUM. Mr. President,
I am an original cosponsor and a
strong supporter of the Polygraph
Protection Act of 1987. I want to con-
gratulate my chairman, Senator KEN-
NEDY, for leading -this effort to correct
an unjust situation facing America's
workers. He is a tireless champion for
the working men and women of this
country and the polygraph bill is an-
other fine example of his commitment
in this area. I also want to congratu-
late Senator HATCH for his leadership
on this bill.
It is settled that polygraph tests are
not accurate "lie detectors." The
American Medical Association, testify-
ing before the Labor Committee,
stated that polygraph tests "measure
nervousness and excitability, not
truth." Honest workers and job appli-
cants may well be nervous when
strapped to a machine and asked a
series of intimidating or personal ques-
tions. We cannot have careers and rep-
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S 1802 CONGRESSIONAL RECORD ? SENATE March 3, 1988
utations depending on the results of
such a frightening, unscientific test.
But currently there is no Federal pro-
tection for millions of workers subject-
ed to these tests by private employers.
The Kennedy-Hatch bill corrects this
critical problem.
The Polygraph Protection Act
strikes a careful balance. It bans poly-
graph use in the two areas where the
results are most suspect: preemploy-
ment screening and random testing.
This will eliminate the most abusive
uses of the polygraph in the private
sector. The bill allows polygraph use
where the employer has reasonable
suspicion that a particular employee
was involved in an internal theft.
Under such limited circumstances,
polygraph tests can serve as one tool
to help reduce the serious problem of
internal theft.
This bill has a broad range of sup-
port from labor, civil liberties groups
and a number of business associations.
I again commend Senators KENNEDY
and HATCH. I enthusiastically support
the Polygraph Protection Act of 1987
and I urge all my colleagues to support
it.
The PRESIDING OFFICER. Who
yields time?
Mr. KENNEDY. Mr. President, lam
prepared to yield back the remainder
of my time.
The PRESIDING OFFICER. The
Senator from Massachusetts yield
back the remainder of his time.
All time has expired or been yielded
back.
The question is on adoption of the
committee substitute as amended.
Mr. BYRD. Mr. President, I suggest
the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. BYRD. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BYRD. Mr. President, I ask
unanimous consent to proceed for 2
minutes.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BYRD. Mr. President, the roll-
call vote is imminent and the order
was entered last evening making the
call for the regular order automatic at
the conclusion of 15 minutes. There-
fore, I would suggest that Senators be
on their way to the floor now as soon
as possible.
Mr. President, I take a minute just
to compliment and thank the two
managers of the bill, Senator KENNEDY
and Senator HATCH. They have demon-
strated good teamwork on this bill,
good cooperation and skill in manag-
ing the bill, handling it in committee
and in bringing it to final conclusion
shortly. They are to be commended.
I especially, though, commend Mr.
KENNEDY. He has been in considerable
physical pain during this debate, yet
has not asked for any special consider-
ation. He did not ask to end the debate
last night. He, as a matter of fact, was
wanting to press on all the time. And
so I admire him for that extra effort
that he has put forth over and above
the common effort that is ordinarily
needed in his position as manager of
the bill.
Mr. President, I yield the floor.
Mr. HATCH. Mr. President, I thank
the distinguished majority leader and
my colleague for his remarks.
Mr. KENNEDY. Mr. President, I ask
unanimous consent that I may proceed
for 30 seconds.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. KENNEDY. Mr. President, I
want to also thank the majority
leader. We know that there is a very
full calendar and there is a great deal
of business for this body, and we know
that there were several who had some
concerns with the legislation. It is
always a challenge to the leadership to
try to work these matters out. I am
grateful to the leader. I know I speak
for all the members of our committee
and, hopefully, for those who will vote
in support and even those who might
express some opposition.
I thank the leader very much, as
well as the Senator from Utah.
- The PRESIDING OFFICER. The
question is on agreeing to the commit-
tee substitute, as amended.
The committee substitute, as amend-
ed, was agreed to.
The PRESIDING OFFICER. The
question is on the engrossment and
third reading of the bill.
The bill was ordered to be engrossed
for a third reading and was read the
third time.
Mr. KENNEDY. Mr. President, I ask
unanimous consent that the Senate
proceed to the immediate consider-
ation of H.R. 1212, Calendar Order No.
431, the House companion bill.
The PRESIDING OFFICER. The
bill will be stated by title.
The assistant legislative clerk read
as follows:
A bill (H.R. 1212) to prevent the denial of
employment opportunities by prohibiting
the use of lie detectors by employers in-
volved in or affecting interstate commerce.
There being no objection, the Senate
proceeded to consider the bill.
Mr. KENNEDY. Mr. President, I ask
unanimous consent that all after the
enacting clause be stricken and the
text of S. 1904, as amended, be substi-
tuted for the House language.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. KENNEDY. Mr. President, I ask
unanimous consent that the vote or-
dered on final passage of the Senate
bill be transferred to final passage of
H.R. 1212.'
The PRESIDING OFFICER. Is
there objection? Without objection, it
is so ordered.
Mr. KENNEDY. Mr. President, I ask
for the yeas and nays.
The PRESIDING OFFICER. Is
there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The
question is on the engrossment of the
amendment and third reading of the
bill.
The amendment was ordered to be
engrossed and the bill to be read a
third time.
The bill was read the third time.
The PRESIDING OFFICER. The
bill having been read the third time,
the question is, Shall it pass? The yeas
and nays have been ordered and the
clerk will call the roll.
The assistant legislative clerk called
the roll.
Mr. CRANSTON. I announce that
the Senator from Tennessee [Mr.
GORE] and the Senator from Illinois
[Mr. SimoN] are necessarily absent.
I also announce that the Senator
from Delaware [Mr. BIDEN] is absent
because of illness.
Mr. SIMPSON. I announce that the
Senator from Kansas [Mr. DOLE] is
necessarily absent.
The PRESIDING OFFICER (Mr.
BREAUX). Are there any other Sena-
tors in the Chamber desiring to vote?
The result was announced?yeas 69,
nays 27, as follows:
[Rollcall Vote No. 43 Leg.]
Adams
Baucus
Bentsen
Bingaman
Boren
Boschwitz
Bradley
Breaux
Bumpers
Burdick
Byrd
Chafee
Chiles
Cohen
Conrad
Cranston
D'Amato
Danforth
Daschle
DeConcini
Dixon
Dodd
Domenici
Armstrong
Bond
Cochran
Garn
Graham
Gramm
Grassley
Hecht
Helms
Biden
Dole
So
YEAS-69
Durenberger
Evans
Exon
Ford
Fowler
Glenn
Harkin
Hatch
Hatfield
Heflin
Heinz
Hollings
Humphrey
Inouye
Johnston
Kasten
Kennedy
Kerry
Lautenberg
Leahy
Levin
Lugar
Matsunaga
NAYS-27
Karnes
Kassebaum
McCain
McClure
McConnell
Murkowski
Nickles
Pressler
Quayle
Melcher
Metzenbaum
Mikulski
Mitchell
Moynihan
Nunn
Packwood
Pell -
Proxmire
Pryor
Reid
Riegle
Rockefeller
Sanford
Sarbanes
Sasser
Shelby
Simpson
Specter
Stafford
Stennis
Weicker
Wirth
Roth
Rudman
Stevens
Symms
Thurmond
Trible
Wallop
Warner
Wilson
NOT VOTING-4
Gore
Shnon
the bill (H.R. 1212), as amended,
was passed, as follows:
H.R. 1212
Resolved, That the bill from the House of
Representatives (H.R. 1212) entitled An
Act to prevent the denial of employment
opportunities by prohibiting the use of lie
detectors by employers involved in or affect-
ing interstate commerce," do pass with the
following amendment:
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March 3, 1988 CONGRESSIONAL RECORD ? SENATE
Strike out all after the enacting clause
and insert:
SECTION I. SHORT TITLE.
This Act may be cited as the "Polygraph
Protection Act of 1988".
SEC 2. DEFINITIONS.
As used in this Act:
(1) COMMERCE.?The term "commerce" has
the meaning provided by section 3(b) of the
Fair Labor Standards Act of 1938 (29 U.S.C.
203(b)).
(2) EMPLOYER.?The term "employer" in-
cludes any person acting directly or indi-
rectly in the interest of an employer in rela-
tion to an employee or prospective employ-
ee.
(3) LIE DETECTOR TEST?The term "lie de-
tector test" includes?
(A) any examination involving the use of
any polygraph, deceptograph, voice stress
analyzer, psychological stress evaluator, or
any other similar device (whether mechani-
cal, electrical, or chemical) that is used, or
the results of which are used, for the purpose
of rendering a diagnostic opinion regarding
the honesty or dishonesty of an individual;
and
(B) the testing phases described in para-
graphs (1), (2), and (3) of section 8(c).
(4) POLYGRAPH.?The term "polygraph"
means an instrument that records continu-
ously, visually, permanently, and simulta-
neously changes in the cardiovascular, res-
piratory, and electrodermal patterns as min-
imum instrumentation standards.
(5) RELEVANT QUESTION.?The term "rele-
vant question" means any lie detector test
question that pertains directly to the matter
under investigation with respect to which
the examinee is being tested.
(6) SECRETARY.?The term "Secretary"
means the Secretary of Labor.
(7) TECHNICAL QUESTION.?The term "tech-
nical question" means any control, sympto-
? matic, or neutral question that, although
not relevant, is designed to be used as a
measure against which relevant responses
may be measured.
SEC 3. PROHIBITIONS ON LIE DETECTOR USE.
Except as provided in section 7, it shall be
unlawful for any employer engaged in or af-
fecting commerce or in the production of
goods for commerce?
(1) directly or indirectly, to require, re-
quest, suggest, or cause any employee or pro-
spective employee to take or submit to any
lie detector test;
(2) to use, accept, refer to, or inquire con-
cerning the results of any lie detector test of
any employee or prospective employee;
(3) to discharge, dismiss, discipline in any
manner, or deny employment or promotion
to, or threaten to take any such action
against?
(A) any employee or prospective employee
who refuses, declines, or fails to take or
submit to any lie detector test; or
(B) any employee or prospective employee
on the basis of the results of any lie detector
test; or
(4) to discharge, discipline, or in any
manner discriminate against an employee
or prospective employee because?
(A) such employee or prospective employee
has filed any complaint or instituted or
caused to be instituted any proceeding
under or related to this Act;
(Li) such employee or prospective employee
has testified or is about to testify in any
such proceeding; or
(C) of the exercise by such employee, on
behalf of such employee or another person,
of any right afforded by this Act.
SEC. I. NOTICE OF PROTECTION.
The Secretary shall prepare, have printed,
and distribute a notice setting forth excerpts
from, or summaries of, the pertinent provi-
sions of this Act. Each employer shall post
and maintain such notice, in conspicuous
places on its premises where notices to em-
ployees and applicants to employment are
customarily posted.
SEC. 5. AUTHORITY OF THE SECI?ETAIff.
(a) IN GENERAL?The Secretary shall?
( 1) issue such rules and regulations as
may be necessary or appropriate to carry
out this Act;
(2) cooperate with regional, State, local,
and other agencies, and cooperate with and
furnish technical assistance to employers,
labor organizations, and employment agen-
cies to aid in effectuating the purposes of
this Act; and
(3) make investigations and inspections
and require the keeping of records necessary
or appropriate for the administration of
this Act.
(b) SUBPOENA AUTHORITY.?For the purpose
of any hearing or investigation under this
Act, the Secretary shall have the authority
contained in sections 9 and 10 of the Feder-
al Trade Commission Act (15 U.S.C. 49,and
50).
SEC 6. ENFORCEMENT PROVISIONS.
(a) CIVIL PENALTIES.?
(1) IN GENERAL?Subject to paragraph (2),
any employer who violates any provision of
this Act may be assessed a civil penalty of
not more than $10,000.
(2) DETERMINATION OF AMOUNT.?In deter-
mining the amount of any penalty under
paragraph fl 1, the Secretary shall take into
account the previous record of the person in
terms of compliance with this Act and the
gravity of the violation.
(3) COLLECTION.?Any civil penalty as-
sessed under this subsection shall be collect-
ed in the same manner as is required by sub-
sections (b) through (e) of section 503 of the
Migrant and Seasonal Agricultural Worker
Protection Act (29 U.S.C. 1853) with respect
to civil penalties assessed under subsection
(a) of such section.
(b) INJUNCTIVE ACTIONS BY THE SECRE-
TARY.?The Secretary may bring an action to
restrain violations of this Act. The district
courts of the United States shall have juris-
diction, for cause shown, to issue temporary
or permanent restraining orders and injunc-
tions to require compliance with this Act.
(c) PRIVATE CIVIL ACTIONS.?
(1) LIABILITY.?An employer who violates
this Act shall be liable to the employee or
prospective employee affected by such viola-
tion. Such employer shall be liable for such
legal or equitable relief as may be appropri-
ate, including but not limited to employ-
ment, reinstatement, promotion, and the
payment of lost wages and benefits.
(2) COURT.?An action to recover the liabil-
ity prescribed in paragraph (1) may be
maintained against the employer in any
Federal or State court of competent jurisdic-
tion by any one or more employees for or in
behalf of himself or themselves and other
employees similarly situated.
(3) COSTS.?The court, in its discretion,
may allow the prevailing party, other than
the United States, a reasonable attorney's
fee as part of the costs.
(d) WAIVER OF RIGHTS PROHIBITED.?The
rights and procedures provided by this Act
may not be waived by contract or otherwise,
unless such waiver is part of a written set-
tlement of a pending action or complaint,
agreed to and signed by all the parties.
SEC. 7. EXEMPTIONS.
I& NO APPLICATION TO GOVERNMENTAL EM-
PLOYERS.?The provisions of this Act shall
not apply with respect to the United States
Government, a State or local government, or
any political subdivision of a State or local
government.
(b) NATIONAL DEFENSE AND SECURITY EXEMP-
TION.?
S 1803
( I) NATIONAL DEFENSE.?Nothing in this Act
shall be construed to prohibit the adminis-
tration, in the performance of any counter-
intelligence function, of any lie detector test
to?
(A) any expert or consultant under con-
tract to the Department of Defense or any
employee of any contractor of such Depart-
ment; or
(B) any expert or consultant under con-
tract with the Department of Energy in con-
nection with the atomic energy defense ac-
tivities of such Department or any employee
of any contractor of such Department in
connection with such activities.
(2) SECURITY.?Nothing in this Act shall be
construed to prohibit the administration, in
the performance of any intelligence or coun-
terintelligence function, of any lie detector
test to?
(A)(i) any individual employed by, or as-
signed or detailed to, the National Security
Agency or the Central Intelligence Agency,
(ii) any expert or consultant under contract
to the National Security Agency or the Cen-
tral Intelligence Agency, (iii) any employee
of a contractor of the National Security
Agency or the Central Intelligence Agency,
or (iv) any individual applying for a posi-
tion in the National Security Agency or the
Central Intelligence Agency; or
(B) any individual assigned to a space
where sensitive cryptologic information is
produced, processed, or stored for the Na-
tional Security Agency or the Central Intelli-
gence Agency.
(c) EXEMPTION FOR FBI CONTRACTORS.?
Nothing in this Act shall be construed to
prohibit the ,administration, in the perform-
ance of any counterintelligence function, of
any lie detector test to an employee of a con-
tractor of the Federal Bureau of Investiga-
tion of the Department of Justice who is en-
gaged in the performance of any work under
the contract with such Bureau.
(d) LIMITED EXEMPTION FOR ONGOING INVES-
TIGATIONS.?Subject to section 8, this Act
shall not prohibit an employer from request-
ing an employee to submit to a polygraph
test if?
(1) the test is administered in connection
with an ongoing investigation involving
economic loss or injury to the employer's
business, including theft, embezzlement,
misappropriation, or an act of unlawful in-
dustrial espionage or sabotage;
(2) the employee had access to the property
that is the subject of the investigation;
(3) the employer has a reasonable suspi-
cion that the employee was involved in the
incident or activity under investigation;
and
(4) the employer?
(A) files a report of the incident or activity
with the appropriate law enforcement
agency;
(B) files a claim with respect to the inci-
- dent or activity with the insurer of the em-
ployer, except that this subparagraph shall
not apply to a self-insured employer;
(C) files a report of the incident or activi-
ty with the appropriate government regula-
tory agency; or
(D) executes a statement that?
(i) sets forth with particularity the specif-
ic incident or activity being investigated
and the basis for testing particular employ-
ees;
ail is signed by a person (other than a
polygraph examiner) authorized to legally
bind the employer;
(iii) is provided to the employee on re-
quest;
(iv) is retained by the employer for at least
3 years; and
(v) contains at a minimum?
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,
S 1804 CONGRESSIONAL RECORD ? SENATE March 3,)988
(I) an identification of the specific eco-
nomic loss or injury to the business of the
employer;
(II) a statement indicating that the em-
ployee had access to the property that is the
subject of the investigation; and
(III) a statement describing the basis of
the employer's reasonable suspicion that the
employee was involved in the incident or ac-
tivity under investigation.
(e) EXEMPTION FOR SECURITY SERVICES.?
(1) IN GENERAL?Subject to paragraph (3),
this Act shall not prohibit the use of a lie de-
tector test on prospective employees of a pri-
vate employer whose primary business pur-
pose consists of providing armored car per-
sonnel, personnel engaged in the design, in-
stallation, and maintence of security alarm
systems, or other uniformed or plainclothes
security personnel and whose function in-
cludes protection of?
(A) facilities, materials, or operations
having a significant impact on the health or
safety of any State or political subdivision
thereof, or the national security of the
United States, as determined under rules
and regulations issued by the Secretary
within 60 days after the date of the enact-
ment of this Act, including?
(i) facilities engaged in the production,
transmission, or distribution of electric or
nuclear power;
(ii) public water supply facilities;
(iii) shipments or storage of radioactive or
other toxic waste materials; and
(iv) public transportation; or
(B) currency, negotiable securities, pre-
cious commodities or instruments, or pro-
prietary information.
(2) ComPLIANCE.?The exemption provided
under paragraph (1) shall not diminish an
employer's obligation to comply with?
(A) applicable State and local law; and
(B) any negotiated, collective bargaining
agreement,
that limits or prohibits the use of lie detec-
tor tests on such prospective employees.
( 3) APPLICATION.?The exemption provided
under this subsection shall not apply if?
(A) the results of an analysis of lie detector
charts are used as the basis on which a pro-
spective employee is denied employment
without additional supporting evidence; or
(B). the test is administered to a prospec-
tive employee who is not or would not be
employed to protect facilities, materials, op-
erations, or assets referred to in paragraph
(1).
(f) NUCLEAR POWER PLANT EXEMPTION.?
This Act shall not prohibit the use of a lie
detector test by an employer on any employ-
ee or prospective employee of any nuclear
power plant. This subsection shall not pre-
empt or supersede any state or local law
that prohibits or restricts the use of lie de-
tector tests.
(g) Nothing in this Act shall be construed
to preclude the use of a lie detector test to
any expert or consultant or any employee of
such expert or consultant under contract
with any Federal Government department,
agency, or program where a security clear-
ance is required by the Federal Government
for such expert or consultant and such
expert or consultant, as a result of the con-
tract, has access to classified and sensitive
Government information.
SEC. 8. RESTRICTIONS ON USE OF EXEMPTIONS.
(a) OBLIGATION TO COMPLY WITH CERTAIN
LAWS AND AGREEMENTS.?The exemptions pro-
vided under subsections (d) and (e) of sec-
tion 7 shall not diminish an employer's obli-
gation to comply with?
(1) applicable State and local law; and
(2) any negotiated collective bargaining
agreement,
that limits or prohibits the use of lie detec-
tor tests on employees.
(b) TEST AS BASIS FOR ADVERSE EMPLOYMENT
AcrioN.?Such exemption shall not apply if
an employee is discharged, dismissed, disci-
plined, or discriminated against in any
manner on the basis of the analysis of one
or more polygraph tests or the refusal to
take a polygraph test, without additional
supporting evidence The evidence required
by section 7(d) may serve as additional sup-
porting evidence.
(c) RIGHTS OF EXAMINEE.?Such exemption
shall not apply unless the requirements de-
scribed in section 7 and paragraphs (1), (2),
and (3) are met.
(1) PRETEST PHASE.?During the pretest
phase, the prospective examinee?
(A) is provided with reasonable notice of
the date, time, and location of the test, and
of such examinee's right to obtain and con-
sult with legal counsel or an employee repre-
sentative before each phase of the test;
(B) is not subjected to harassing interro-
gation technique;
(C) is informed of the nature and charac-
teristics of the tests and of the instruments
involved;
(D) is informed?
(i) whether the testing area contains a
two-way mirror, a camera, or any other
device through which the test can be ob-
served;
(ii) whether any other device, including
any device for recording or monitoring the
conversation will be used,' or
Mil that the employer and the examinee,
may with mutual knowledge, make a record-
ing of the entire proceeding;
(E) is read and signs a written notice in-
forming such examinee?
(i) that the examinee cannot be required to
take the test as a condition of employment;
(ii) that any statement made during the
test may constitute additional supporting
evidence for the purposes of an adverse em-
ployment action described in section 8(b);
(iii) of the limitations imposed under this
section;
(iv) of the legal rights and remedies avail-
able to the examinee if the polygraph test is
not conducted in accordance with this Act;
and
(v) of the legal rights and remedies of the
employer; and
(F) is provided an opportunity to review
all questions (technical or relevant) to be
asked during the test and is informed of the
right to terminate the test at any time; and
(G) signs a notice informing such exam-
inee of?
(i) the limitations imposed under this sec-
tion;
(ii) the legal rights and remedies available
to the examinee if the polygraph test is not
conducted in accordance with this Act; and
(iii) the legal rights and remedies of the
employer.
( 2) ACTUAL TESTING PHASE.?During the
actual testing phase?
(A) the examinee is not asked any ques-
tions by the examiner concerning?
(i) religious beliefs or affiliations;
beliefs or opinions regarding racial
matters;
(iii) political beliefs or affiliations;
(iv) any matter relating to sexual behav-
ior; and
(v) beliefs, affiliations, or opinions regard-
ing unions or labor organizations;
(B) the examinee is permitted to terminate
the test at any time;
(C) the examiner does not ask such exam-
inee any question (technical or relevant)
during the test that was not presented in
writing for review to such examinee before
the test;
(D1 the examiner does not ask technical
questions of the examinee in a manner that
is designed to degrade, or needlessly intrude
on, the examinee;
(E)the examiner does not conduct a test
on an examinee when there is written evi-
dence by a physician that the examinee is
suffering from a medical or psychological
condition or undergoing treatment that
might cause abnormal responses during the
test; and
(F) the examiner does not conduct and
complete more than five polygraph tests on
a calendar day on which the test is given,
and does not conduct any such test for less
than a 90-minute duration.
(3) POST-TEST PHASE.?Before any adverse
employment action, the employer must?
(A) further interview the examinee on the
basis of the results of the test; and
(B) provide the examinee with?
al a written copy of any opinion or con-
clusion rendered as a result of the test; and
(ii) a copy of the questions asked during
the test along with the corresponding
charted responses.
(d) QUALIFICATIONS OF EXAMINER.?The ex-
emptions provided under subsections Id)
and (e) of section 7 shall not apply unless
the individual who conducts the polygraph
test?
(1) is at least 21 years of age;
(2) has complied with all required laws
and regulations established by licensing and
regulatory authorities in the State in which
the test is to be conducted,*
131(A) has successfully completed a formal
training course regarding the use of poly-
graph tests that has been approved by the
State in which the test islo be conducted or
by the Secretary; and
(B) has completed a polygraph test intern-
ship of not less than 6 months duration
under the direct supervision of an examiner
who has met the requirements of this sec-
tion;
(4) maintains a minimum of a $50,000
bond or an equivalent amount of profession-
al liability coverage;
(5) uses an instrument that records con-
tinuously, visually, permanently, and simul-
taneously changes in the cardiovascular,
respiratory, and electrodermal patterns as
minimum instrumentation standards;
(6) bases an opinion of deception indicat-
ed on evaluation of changes in physiological
activity or reactivity in the cardiovascular,
respiratory, and electrodermal patterns on
the lie detector charts;
(7) renders any opinion or conclusion re-
garding the test?
(A) in writing and solely on the basis of an
analysis of the polygraph charts;
(B) that does not contain information
other than admissions, information, case
facts, and interpretation of the charts rele-
vant to the purpose and stated objectives of
the test; and
(C) that does not include any recommen-
dation concerning the employment of the ex-
aminee; and
(8) maintains all opinions, reports, charts,
written questions, lists, and other records re-
lating to the test for a minimum period of 3
years after administration of the test.
(e) PROMULGATION OF STANDARDS.?The Sec-
retary shall establish standards governing
individuals who, as of the date of the enact-
ment of this Act, are qualified to conduct
polygraph tests in accordance with applica-
ble State law. Such standards shall not be
satisfied merely because an individual has
conducted a specific number of polygraph
tests previously.
SEC. 9. DISCLOSURE OF INFORMATION.
(a) IN GENERAL.?A person, other than the
examinee, may not disclose information ob-
tained during a polygraph test, except as
provided in this section.
(b) PERMITTED DISCLOSURES.?A polygraph
examiner, polygraph trainee, or employee of
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March,?, 1988 CONGRESSIONAL RECORD ? SENATE
a polygraph examiner may disclose informa-
tion acquired from a polygraph test only
to?
(1) the examinee or any other person spe-
cifically designated in writing by the exam-
inee;
(2) the employer that requested the test;
(3) any person or governmental agency
that requested the test as authorized under
subsection (a), (b), or (c) of section 7; or
(4) any court, governmental agency, arbi-
trator, or mediator, in accordance with due
process of law, pursuant to an order from a
court of competent jurisdiction.
(c) DISCLOSURE BY EMPLOYER.?An employ-
er (other than an employer covered under
subsection (a), (b), or (c) of section 7) for
whom a polygraph test is conducted may
disclose information from the test only to a
person described in subsection (b).
SEC. 10. EFFECT ON OTHER LAW AND AGREEMENTS.
This Act shall not preempt any provision
of any State or local law, or any negotiated
collective bargaining agreement, that is
more restrictive with respect to the adminis-
tration of lie detector tests than this Act.
SEC. II. EFFECTIVE DATE.
(a) IN GENERAL?Except as provided in
subsection (b), this Act shall become effec-
tive 6 months after the date of enactment of
this Act.
(b) REGULATIONS.?Not later than 120 days
after the date of enactment of this Act, the
Secretary shall issue such rules and regula-
tions as may be necessary or appropriate to
carry out this Act.
SEC. IL EXEMPTION FOR PREEMPLOYMENT TESTS
FOR USE OF CONTROLLED SUB-
STANCES.
(a) IN GENERAL.?An employer, subject to
section 7, may administer a scientifically
valid test other than a lie detector test to a
prospective employee to determine the
extent to which the prospective employee
has used a controlled substance listed in
schedule I, II, III, or IV pusuant to section
202 of the Controlled Substances Act (21
U.S.C. 812).
0.1 EXCEPTIONS.?
( I) ACCURACY AND CONFIDENTIALITY.--Para-
graph (1) shall not supersede any provision
of this Act or Federal or State law that pre-
scribes standards for ensuring the accuracy
of the testing process or the confidentiality
of the test results.
(2) COLLECTIVE BARGAINING AGREEMENTS.?If
prospective employees would be subject to a
negotiated collective bargaining agreement,
paragraph (1) shall apply only if testing is
conducted in accordance with such agree-
ment.
SEC 12. MEXICO STEEL LOAN.
The Senate finds.?
(1) during the past decade the United
States steel industry has witnessed signifi-
cant economic disruption and employment
losses due to increased foreign competition;
(2) the United States steel industry has
lost more than $12,000,000,000, more than
half its workforce, and closed scores of
plants throughout the country;
(3) in order to regain its competitive pos-
ture, the United States industry has invested
more than 8 billion dollars on moderniza-
tion, obtained painful wage concessions
from its remaining workforce, and slashed
production capacity by one-third; ,
(4) there are more than 200,000,000 excess
tons of steel capacity worldwide, causing
severe financial strains on steel industries
in many countries;
(5) the proposed loan by the International
Bank for Reconstruction and Development
(hereafter referred to as the "World Bank")
would provide Mexico's steel companies
with subsidized financing to further the glut
of worldwide steel production;
(6) the proposed loan could do irreparable
damage to the United States steel industry,
therefore, it is the sense of the Senate that
the proposed loan is not in the best interests
of the United States or in the best interests
of Mexico's own economic revitalization;
and the World Bank should reject the pro-
posed loan.
SEC. 13. EFFECTIVE DATE.
(a) IN GENERAL.?Except as provided in
subsection (b), this Act shall become effec-
tive 6 months after the date of enactment of
this Act.
(b) REGmAnoNs.?Not later than 120 days
after the date of enactment of this Act, the
Secretary shall issue such rules and regula-
tions as may be necessary or appropriate to
carry out this Act.
Mr. KENNEDY. Mr. President, I
move to reconsider the vote by which
the bill was passed.
Mr. HATCH. Mr. President, I move
to lay that motion on the table.
The motion to lay on the table was
agreed to.
Mr. HATCH. Mr. President, I just
want to say a few words about the
staff who worked so hard to help us
pass this legislation. Tom Rollins and
Jay Harvey on Senator KENNEDY'S
staff and Kevin McGuiness on my own
staff all did an excellent job of putting
together this compromise. I also want
to thank Deanna Godfrey, Jeannette
Carlile and Angela Pope on my Labor
Committee staff who are so critical to
my efforts on the floor. All have spent
hours on this legislation and other
issues, and their efforts often go un-
acknowledged. I hope they know how
much their work is appreciated.
Finally, I would like to express my
gratitude to Mike Tiner, who has lived
and breathed this issue for 3 years. His
efforts were key to our success.
Mr. HATFIELD. Mr. President, I ask
unanimous consent to be able to pro-
ceed out of order on very important
remarks for my State for 5 minutes.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
OREGON TIMBER SALE APPEALS
Mr. HATFIELD. Mr. President, I
would like to take a few minutes of
the Senate's time to discuss a very se-
rious situation that has developed in
my home State over the last few days.
Beginning last Wednesday, a very
small segment of the environmental
community in Oregon filed appeals on
36 timber sales being reoffered for sale
on the Siskiyou National Forest under
the provisions of the Federal Timber
Contract Payment Modification Act of
1984. Then, on the first 3 days of this
week, the same group filed 189 more
appeals on three more national forests
in Oregon: 80 appeals on the Siuslaw
National Forest, 41 appeals on the
Umpqua National Forest, and 68 ap-
peals on the Willamette National
Forest. These 225 appeals are more
than were filed on all timber sales in
both Oregon and Washington during
the last 3 years combined.
They were filed in spite of the fact
that most of these reoffered sales were
modified to improve them under the
most current environmental standards.
S 1805
They were filed despite the knowl-
edge that most or all of the timber
sale programs of each of the national
forests involved would be delayed or
completely halted, which would result
in serious economic disruption
through unemployment and lost Fed-
eral forest and tax receipts to local
governments.
These appeals were filed despite
clear evidence that it is the forest
products industry that is among the
leaders in Oregon's effort to move out
of the economic recession that has
burdened the State for nearly a
decade. And of no apparent concern to
the fringe. And I emphasize this, did
not represent the mainstream' of envi-
ronmental organizations. But a fringe
environmental group precipitating this
tidal wave of potential litigation, as
many as 9,000 jobs hang in the bal-
ance.
And therein lies our dilemma, Mr.
President. It is the continued unwill-
ingness of one environmental faction
to accept the lawful decisions of the
Congress regarding the management
of our public lands by awaiting the
final forest plans, which leads us to
these appeals. In their haste, and in
pushing frivolous appeals by using
word processors and simply inserting
the name of a timber sale, these ac-
tions constitute an end-run around a
consensus process crafted through
compromises made by all sides.
My major concern is that this action
is a polarizing affront to the consen-
sus-building, earnest discussion-proc-
ess which has been the hallmark of
Oregon natural resource legislation.
These appeals constitute a collapse in
trust, a reckless provocation that actu-
ally could serve to harm the environ-
mental values they purport to protect.
I am confident that the public will
see this action for what it is and reject
it so that there can continue to be a
consensus approach to timber manage-
ment and environmental protection
issues.
Mr. President, the bottom line is
simply this: you cannot call yourself
an environmentalist and at the same
time support this type of irresponsible
behavior. We environmentalists recog-
nize that the very essence of the word
is responsible stewardship of the
Earth's natural resources. We debate
how many jobs must be maintained.
We debate what must be protected at
all costs and what should be subject to
compromise. We debate amongst our-
selves as to the proper balance of de-
velopment and preservation. And
though these in-house disagreements
occur frequently?and sometimes quite
emotionally?the debate remains
within the parameters of common
sense. Some of these people have
crossed that threshold more times
than I can count, but today they have
exhausted the last ounce of reason-
ableness. The challenge to every
'person in my State who thinks of him-
self or herself as a true environmental-
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S 1806 CONGRESSIONAL RECORD ? SENATE
ist is to let these people know that
their masquerade party is over. We
cannot allow them to exploit Oregon's
reputation as reasonable people with a
passionate love of the Earth. Let us
call it like it is: these people are not
environmentalists. They seek to set
back the clock of environmental
progress leaving behind the wreckage
of people out of work and communi-
ties in collapse. Such action tears
down the well-earned reputation of
the Oregon environmentalist commu-
nity.
Mr. President, those of my col-
leagues with whom I have worked on
national forest issues over the years,
know that I have definite views about
the importance of national forest man-
agement to my State, indeed, to the
entire Pacific Northwest. I have long
believed that predictable multiple use
forestry, implemented by using the
best sustained-yield silvicultural meth-
ods available, results in vital environ-
mental protection and contributes to
economic stability in our timer-de-
pendent communities. This is especial-
ly important considering that almost
60 percent of the forest products in-
dustry in Oregon is dependent upon
public timber for its supply of raw ma-
terial.
But let me remind my colleagues
that the sale of public timber from our
national forests did not begin until
after World War II. Until that time,
all of the forest products required by
users in the United States and around
the world came from those same pri-
vate landowners who are now so re-
viled.
It should note construed from these
comments that I support the unsus-
tainable harvesting of timber. My
record in this body establishes clearly
my strong support for sustained-yield
public forestry, as well as support for
research that will lead to even greater
yields from an increasingly narrower
land base.
Over the years I have supported
these principles in the face of increas-
ing assaults on balanced national
forest management in my region by
pseudo-enviranmentalists who do not
speak for mainstream environmental
concerns.
In 1969, Congress passed the Nation-
al Environmental Policy Act [NEPA],
which established the process by
which environmental impact state-
ments were to be prepared. Through
this process, the Federal Government
would be required to analyze fully the
potential effects of all its actions on
our natural resources. I can recall Sen-
ator Scoop Jackson offering the pre-
diction that these EIS's would be doc-
uments about a page long by which
the public could easily determine al-
ternative options for proposed actions.
Today, in fact, these EIS's frequently
run more than thousands of pages in
length and are even heavier than
those famous continuing resolutions
about which the President is so fond
of railing against the Congress.
In our efforts to improve national
forest management, we enacted the
National Forest Management Act
[NFMA] in 1976, in response, I might
add, to an environmental lawsuit.
NFMA went a step beyond the 1960
Multiple Use Sustained Yield Act by
setting forth specific management cri-
teria for such resource values as wild-
life, watershed, timber, and recreation
in a comprehensive national forest
planning process. Oregon and Wash-
ington are developing new manage-
ment plans using these new guidelines.
The plans are late, and there is much
debate and discussion over their con-
tent, but they are proceeding ahead.
But for some, waiting is difficult.
Some do not accept the process by
which we manage our vast resources.
And I am not referring to the Sierra
Club, the Friends of the Columbia
Gorge, the Wilderness Society, the
Oregon Rivers Council, the National
Wildlife Federation, the Audubon So-
ciety, and other groups with which I
have worked?and I add that they dis-
agree with me often and vigorously,
but they are reasonable about it and
never abuse the process in the manner
we are now witnessing.
In fact, much of the last two decades
has been spent working with these or-
ganizations to shape natural resource
policy. These fruitful efforts in
Oregon were embodied in the two
Roadless Area Review and Evaluation
studies [RARE I and RARE a wil--
derness-bill-a-year for 20 years, and
various other natural resource de-
bates.
During my years in this body I have
had the pleasure of drafting and/or
assisting in the passage of several
pieces of resource legislation relating
to Oregon. These efforts include the
Oregon Dunes National Recreation
Area, the Hells Canyon National
Recreation Area, the Yaquina Head
Recreation and Research Area, the
Cascade Head National Research
Area, all four of Oregon's Wild and
Scenic Rivers, additions to Crater
Lake National Park, the prohibition of
mining in Crater Lake National Park,
the buyout of mining claims in the
Three Sisters Wilderness, the John
Day Fossil Beds National Monument,
the Columbia River Gorge National
Scenic Area, the quadrupling of Or-
egon's Federal wilderness, and I will
soon introduce a major Wild and
Scenic Rivers bill for my home State.
The environmental process that has
been established through this record
of coalition and consensus-building is
now being abused through frivolous
appeals and lawsuits, and the predict-
able resource allocation that provides
community stability for scores of
timber-dependent economies is con-
stantly jeopardized.
But in this instance, Mr. President,
the interests of the majority are being
subjugated to those of a fringe minori-
ty. In this instance, a system I still
regard as workable and viable is being
misused in a way that has nothing to
,
March 3,1988
do with merit or substance. Most chal-
lenges to these timber sales have
failed on their merits. And having
failed on the merits, the challenges
are now being directed at an already
overburdened agency on procedural
grounds. One could quickly draw the
conclusion that these appeals have
been offered to delay, distract, and
harass. Sincere attempts to improve
forest management are one thing, but
sabotage of the process is another.
I have labored for many years to
ensure that the legitimate claims of
concerned environmentalists are heard
and acted upon. During a 1985 crisis
involving the Mapleton Ranger Dis-
trict of the Siuslaw National Forest,
Congress authorized the substitution
of reoffered timber sales for new green
sales which were halted because of a
court injunction. The purpose of this
action was to ensure a smooth flow of
raw material to timber-dependent
communities while still ensuring that
legitimate environmental concerns
about new sales on lands without EIS's
were protected.
In 1986, in response to yet another
challenge to timber sales?this time on
the BLM's Medford District?Congress
again provided for the agency to move
reoffered sales forward While protect-
ing the appeal rights of concerned en-
vironmentalists.
The theme has been consistent: the
protection and balancing of competing
legitimate interests in environmental
disputes.
I must admit that I cannot under-
stand the motive for this latest attack
on western Oregon's timber sale pro-
gram. If the Forest Service or the Con-
gress had pushed through the irra-
tional harvesting of public timber on
lands that had not been subjected to
close planning, I might understand.
But this is not the case. Over half of
the sales being reoffered for sale
under the 1984 Timber Contract Pay-
ment Modification Act have been
modified for environmental consider-
ations. That has been done in spite of
the fact that the land base remains
narrower than it should be because
lands released for multiple use man-
agement under the 1984 Omnibus
Oregon Wilderness Act have not yet
been put into appropriate production.
The new forest plans, once implement-
ed in final form, will establish the ap-
propriate land allocations for those re-
leased lands.
Mr. President, this brief recounting
of natural resource policy in Oregon
over the last 20 years illustrates that
cooperation and reason are the two
crucial elements for the successful res-
olution of difficult public land con-
flicts. Accordingly, I encourage those
interested in resource protection issues
to choose this proven path which leads
to fairness, equity, and wise manage-
ment, and to reject those irresponsible
methods which lack respect and civil-
ity for the process so many have
worked so long to create.
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