SENATE PASSAGE OF POLYGRAPH LEGISLATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91B00390R000300210026-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 99
• Document Creation Date: December 23, 2016
• Document Release Date: April 18, 2013
• Sequence Number: 26
• Publication Date: March 8, 1988
• Content Type: MEMO

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/- 3 -S-1/1/-
STAT
STAT
OS REGISTRY
18 MAR 1988
8 March 1988
OCA88-0673
MEMORANDUM FOR:c5irector, Office_of Securft7j
ADGE/AL&MS/OGC
FROM:
Legislation Division
Ottice or uongressional Affairs
SUBJECT: Senate Passage of Polygraph Legislation
1. On 3 March 1988, the Senate passed S. 1906, the
"Employee Polygraph Protection Act of 1987" by a vote of
69-27. This vote, together with a vote of 254 to 158 for House
passage, means the bill has more than the twc-thirds margin
needed to make it veto-proof.
2. Attached for your information is a copy of the floor
debate and the text of the bill as finally passed.
3. Staff has indicated that any. concerns not already .
addressed by the Agency's exemptions can be addressed in the
conference report.
Attachment
STAT
OCA /LEG
(4 March. 1988)
Distribution:
Original
- Addressees
1 - D OCA w o
(w!att)
att)
STAT
1
(Liaison) (w/o att)
y (w/o att)
1 - egis
1 - OCA/Leg/Subject File: Polygraph
(w/o att)
1 - PS Signer (w/o att)
1 - OCA Read (w/o att)
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S 1638 CONGRESSIONAL RECORD ? SENATE March 1, 1988
The PRESIDING OFFICER. The
majority leader.
Mr. BYRD. Mr. President, I have
been discussing with the distinguished
acting Republican leader our going to
the polygraph bill, Calendar Order No.
528, S. 1904. I understand from the
distinguished acting Republican leader
that there would be an objection. I
shall move, and I also understand
from the distinguished acting Republi-
can leader, and Mr. HELMS, that there
will be a request for the yeas and nays
on the motion.
Mr. President, I would suggest that
Senators be informed by our respec-
tive Cloakrooms that the vote will
occur shortly. I will put in a brief
quorum so the Cloakrooms may get
out that message. Before I make the
motion I would be happy to yield to
the distinguished acting Republican
leader for anything that he might
wish to say at this point.
Mr. SIMPSON. Mr. President,
indeed the majority leader has been
very cooperative in sharing with those
of-us on this side of the aisle what his
intention is today and even into the
week. Because of the adjournment yes-
terday we are in the position of morn-
ing business where we are to receive a
nondebatable motion to proceed to S.
1904, it is perfectly appropriate in
every way, and we have those who
have objected to any type of ordinary
procedure to get to that, and under
the rules here. I do appreciate the op-
portunity to vote on the motion to
proceed. That will be expected within
a very few minutes.
I assume, then, that I might pass on
to those on this side of the aisle and to
all of the Senators that additional
votes could occur indeed during the re-
mainder of the session today. I doubt
seriously that this matter is going to
be resolved today. I do not know in the
totality of things that we will find out
soon.
But we are here to make progress on
that. Then if disposed of in timely
fashion, we will go on to either the
Price-Anderson legislation or the intel-
ligence oversight legislation as the ma-
jority leader would direct. Is that the
general_ understanding? I inquire of
the majority leader.
Mr. BYRD. Mr. President, yes. It is
the understanding. I hope that during
this week the Senate would be able to
proceed to the congressional oversight
legislation, Calendar Order No. 521, S.
1721 that came out of the Select Com-
mittee on Intelligence, and also the
Price-Anderson legislation. It would be
my present inclination to try to take
up the House bill, not necessarily in
that order.
But those are the two other pieces of
legislation that I hope we could deal
with this week and it could be one or
the other, and then the other before
the one. But I hope' that the Senate
will not be unduly delayed in complet-
ing action on the polygraph bill. But
in answer to the distinguished acting
Republican leader those two bills to
which he has referred are the two
measures that I would hope the
Senate could complete action on this
week or at least take some action on
one or both this week before we got
out. I do anticipate the Senate being
in a full week through Friday with
votes.
Mr. SIMPSON. Mr. President, I
thank the distinguished majority
leader. Indeed, it is helpful to have
this agenda because, as we do the
ritual known as holds, those are not
for purposes of total obstruction. They
are essentially for the purpose of noti-
fying the Members that they need to
be prepared for this debate and get in-
volved and ready themselves, and that
is, therefore, very helpful, I think, on
both sides of the aisle as we look at
that kind of an agenda. I thank the
majority leader.
Mr. BYRD. Yes. In many instances,
those holds are for that purpose, as
the assistant Republican leader has
said, of informing Senators that the
measure is about to be called up. They
may have amendments they wish to
debate, and so on.
POLYGRAPH PROTECTION ACT
OF 1987
Mr. BYRD. Mr. President, I now
move that the Senate proceed to con-
sideration of Calendar Order No. 528,
S. 1904,
The PRESIDING OFFICER. The
question is on agreeing to the motion
to proceed.
Mr. BYRD. Mr. President, I believe
the Senator from North Carolina
wishes to ask for the yeas and nays.
Mr. HELMS. 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.
Mr. BYRD. Mr. President, this is not
a debatable motion. I ask unanimous
consent to proceed for 15 seconds.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BYRD. Mr. President, this
motion is not debatable. I had said I
would suggest the absence of a
quorum.
I ask unanimous consent that the
call for the regular order be automatic
at the end of 15 minutes.
The PRESIDING OFFICER. Is
there objection? The Chair hears
none, and it is so ordered.
Mr. BYRD. 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.
The question is on agreeing to the
motion to proceed to the consideration
of S. 1904, Calendar Order No. 528, a
bill to strictly limit the use of lie de-
tector examinations by employers in-
volved in or affecting interstate com-
merce.
The yeas and nays have been or-
dered.
The clerk will call the roll.
The assistant legislative clerk called
the roll.
Mr. CRANSTON. I announce that
the Senator from Tennessee [Mr.
GORE], the Senator from Hawaii [Mr.
MATSUNAGA], and the Senator from', Il-
linois [Mr. &Bawl] are necessarily,
absent.
I also announce that the Senator
from Delaware [Mr. BIDER] is absent
because of illness.
Mr. SIMPSON. I announce that the
Senator from Kansas [Mr. Dorzl, the
Senator from Oregon [Mr. PACK-
wooD], and the Senator from New
Hampshire [Mr. RUDMAN] are neces-
sarily absent.
The PRESIDING OFFICER. Are
there any other Senators in the Cham-
ber who desire to vote?
The result was announced?yeas 74,
nays 19, as follows:
ERollcall Vote No. 33 Leg.]
Adams
Armstrong
Baucus
Bentsen
Bingaman
Boren
Boschwitz
Bradley
Breaux
Bumpers
Burdick
Byrd
Chafee
Chiles
Cohen
Conrad
Cranston
D'Amato
Danforth
Daschle
DeConcini
Dixon
Dodd
Domenici
Durenberger
Bond
Cochran
Gain
Gramm
Hecht
Helms
Karnes
YEAS-74
Evans
Exon
Ford
Fowler
Glenn
Graham
Grassley
Harkin
Hatch
Hatfield
Heflin
Heinz
Hollings
Humphrey
Inouye
Johnston
Kassebaum
Kasten
Kennedy
Kerry
Lautenberg
Leahy
Levin
Lugar
McCain
NAYS-19
McClure
McConnell
Murkowski
Nickles
Pressler
Quayle
Stevens
Melcher
Metzenbaum
Mikulski
Mitchell
Moynihan
Nunn
Pell
Proxmire
Pryor
Reid
Riegle
Rockefeller
Roth
Sanford
Sarbanes
Sasser
Shelby
Simpson
Specter
Stafford
Stennis
Weicker
Wilson
Wirth
Symms
Thurmond
Trible
Wallop
Warner
NOT VOTING-7
Biden Matsunaga Simon
Dole Packwood
Gore Rudman
So the motion was agreed to.
The PRESIDING OFFICER. The
clerk will report the bill.
The assistant legislative clerk read
as follows:
A bill (S. 1904) to strictly limit the use of
lie detector examinations by employers in-
volved in or affecting interstate commerce.
The Senate proceeded to consider
the bill, which had been reported from
the Committee on Labor and Human
Resources, with an amendment to
strike all after the enacting clause and
insert in lieu thereof, the following: -
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March 1, 1988
CONGRESSIONAL RECORD ? SENATE S 1637
presently detained temporarily in a
conference.
Mr. METZENBAUM. I thank the
leader.
The PRESIDING OFFICER [Mr.
ADAMS]. The Senator from West Vir-
ginia has yielded to the Senator' from
Ohio.
WORLD BANK LOAN FOR
MEXICO'S STEEL INDUSTRY
Mr. METZENBAUM. Mr. President,
I send a sense-of-the-Senate resolution
to the desk, on behalf of myself, Sena-
tor HEINZ and Senator DIXON regard-
ing a World Bank loan for Mexico's
steel industry.
Two days from now, the World Bank
is scheduled to consider approving a
$400 million loan to help Mexico re-
structure its ailing steel industry.
The administration thinks its a good
idea.
They couldn't be more wrong.
How can the United States, as ?a
prominent member of the World Bank
help Mexico turn its steel industry
around with subsidized financing
when it will not lift a finger for the
steel industy here at home?
Why back an effort which could
help a foreign country make more and
better steel? There's already world-
wide overcapacity.
Why back an effort which could
wind up costing American workers
their jobs?
It isn't fair.
It doesn't make sense.
Certainly I'm concerned about Mexi-
co's financial woes. The stability of
our friend and neighbor is critical to
our own national interest.
But I'm just as concerned about the
need to maintain a strong domestic
steel industry. That's critical to our
national interest too.
It makes no sense to provide subsi-
dies to help Mexico restructure its
steel industry while turning a deaf ear
to domestic Steel companies and work-
ers.
But that is the present course of our
Government.
Indeed, the administration has
called it folly to pump Federal dollars
into domestic steel companies.
This administration calls saving
American jobs "folly."
I call their steel policy a three-ring
circus.
The administration boasts that
Mexico has agreed to change its own
subsidy and pricing practices for steel
as a concession for obtaining this loan.
For instance, they say Mexico has ex-
pressed a willingness to raise its own
low energy prices which have helped
keep the cost of Mexican steel down.
This, the administration argues, will
help make? Mexican steel more com-
petitive with U.S. steel.
It's outrageous for the administra-
tion to support a policy that would
modernize our foreign competitors.
Tt's nonsense for the administration to
mable Mexico to produce more with
less, all at the expense of the United
States' industry.
If this is part of the administration's
"competitiveness" strategy then it is
the most absurd investment our
Nation could make.
In fact, Mr. President, it is such a
bad idea the administration has been
too embarrassed to share it with us.
It was only yesterday that the ad-
ministration informed some of our
staffs about the proposed loan. They
gave us less than 3 days' notice.
Mr. President, Mexico is facing an
economic crisis. It needs our help, and
we should do all we can to be a good.
friend to our neighbor. But I'm sure
the U.S. Government, and the World
Bank, can find more worthwhile
projects to support than this one.
Our Government has the ability to
block this loan. The U.S. Government
provides the World Bank with 20 per-
cent of its funding. It has a crucial
voice in deciding which projects are
funded. It is a voice that needs to be
raised to just say no.
That is why I am offering this sense-
of-the-Senate resolution today urging
the U.S. Government to use its best ef-
forts to prevent the approval of this
loan. -
Over the past decade, U.S. steel com-
panies have lost billions of dollars.
Bankruptcies have proliferated. Plants
have shutdown and communities have
been destroyed. Precious Federal re-
sources should be aimed at helping
American workers and industry, not
revitalizing a foreign one.
I urge my colleagues to support this
sense-of-the-Senate resolution.
Mr. President, I ask unanimous con-
sent at this point that I include in the
RECORD a letter from Bethlehem Steel
Corp., and another letter from LTV
Corp.
There being no objection, the mate-
rial was ordered to be printed in the
RECORD, as follows:
LTV Si.k.r.a. Co.,
Cleveland, OH, March 1, 1983.
HO/I. HOWARD METZENBAUM,
U.S. Senate,
Washington, DC.
DEAR SENATOR METZENBAUM: Yesterday we
were advised by representatives of the De-
partment of Treasury that the World Bank
intends to provide a $400 million loan to the
Mexican steel industry for its restructuring
and modernization. This loan is justified on
the basis that Mexico intends to reduce its
trade restrictions and some Mexican steel
Industry capacity will be eliminated.
We believe that loan should be opposed by
the Treasury Department. Worldwide steel
over capacity is recognized as a "root" prob-
lem to the world steel industry's current di-
lemma. This proposal, while eliminating
some inefficient capacity, appears to,
through its modernization program, have
the effect of increasing the Mexican steel
industry's net capacity, particularly in qual-
ity flat rolled steel products.
We believe it is fundamentally wrong to use
U.S. taxpayer dollars to subsidize restruc-
turing and modernization of the Mexican
steel industry. The end result can only exac-
erbate the world over capacity problem,
limit United States export opportunities
and, absent VRA continuation, further
threaten the domestic steel marketplace.
We urge to oppose this action.
Very truly yours,
DAVID L. CARROLL,
Vice President, Public Affairs.
BETHLEHEM STEEL CORP.,
Bethlehem, PA, March 1, 1988.
Hon. HOWARD M. METZENBAUM,
Senate Office Building,
Washington, DC. -
DEAR HOWARD: I have just learned of the
proposed World Bank loan of $400 million
to assist the Mexican steel industry in its re-
structuring efforts. This initiative appears
to be proceeding despite the continuing
world steel crisis and despite the Mexican
government's deplorable record in managing
its state-owned Sidermex steel producing
operations.
I strongly object to any such loan unless
and until a clear case has been made before
the Steel Caucus on its merits. I would
greatly appreciate any efforts by you and.
your Senate colleagues to assure that the
World Bank is working toward the common
good before any such loan is made.
Yours truly,
WALTER F. WILLIAMS. ?
Mr. -METZENBAUM. Mr. President,
I ask unanimous consent that addi-
tional Senators may be added as origi-
nal cosponsors before the close of busi-
ness this day.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. METZENBAUM. Mr. President.
I ask unanimous consent that the res-
olution be held at the desk pending
further action of this body.
Mr. BYRD. Reserving the right to
object, Mr. President, may I say that
there is a request for this to be re-
ferred to the committee, to the For-
eign Relations Committee. There
would be an objection to holding it at
the desk. If the Senator would change
his request to that of asking that it be
held at the desk for the remainder of
the day and then be referred to the
committee, I do not think I would -
have to object to that.
I am in sympathy with the objective
of the Senator because I have steel
mills in my State, of course, and I am
interested in this matter. But I do
have an objection that I would have to
make on behalf of another Senator. If
the Senator will change his request as
I have proposed, I believe that would
be agreeable.
Mr. METZENBAUM. Under the cir-
cumstances, the Senator from Ohio
would change his unanimous consent
request that it be held at the desk for
the balance of the business day, and?
then referred to committee unless fur-
ther action is dictated by the body
prior thereto.
The PRESIDING OFFICER. With-
out objection, the resolution will be
held at the desk for the remainder of
the day, and the resolution will be re-
ferred to the appropriate committee.
ORDER OF PROCEDURE
Mr. BYRD addressed the Chair.
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Mardi .1, .1688 CONGRESSIONAL RECORD ? SENATE
SECTION I. SHORT TITLE.
This Act may be cited as the "Polygraph
Protection Act of 1987".
SEC. 2. DEEnviTioNS.
As used in this Act:
(1) COMMERCE.?The term "conimerce" has
the meaning provided by section 3(b) of the
Fair Labor Standards Act of 1938 (29 U.S.C.
203 ( b)1.
(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, decepto graph, 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 tem "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; ?
(13) 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. 4. 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 SECRETARY.
(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)?
(A) any employer who violates section 4
may be assessed a civil money penalty not to
exceed $100 for each day of the violation;
and
(B) any employer who violates any other
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 (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) LrAvarry.?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.
(a) 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.
S 1639
(b) NATIONAL DEFENSE AND SECURITY EXEMP-
TION.?
(1) 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) SEcunrrY.?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 COIYTRACTORS.?
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-
TIGAT7ON5.?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;
(ii) 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
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S 1640 CONGRESSIONAL RECORD ? SENATE
(v) contains at a minimum?
(I) a.n 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.
SEC. 8. RESTRICTIONS ON USE OF EXEMPTIONS.
(a) OBLIGATION TO COMPLY WITH CERTAIN
LAWS AND AGREEMENTS.?The limited exemp-
tion provided under section 7(d) shall not
diminish an employer's obligation 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
ACTION.?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.
(CI 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
(iii) 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 examin-
ee 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
Mil 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;
(ii) 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;
ID) the examiner does not ask technical
questions of the examinee in a manner that
is designed to degrade, or needlessly intrude
on, the examinee;
/El 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) Posr-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.
(di QUALIFICATIONS OF EXAMINER.?Such ex-
emptions shall not apply unless the individ-
ual who conducts the polygraph test?
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;
(3)(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 is to 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 electroderm.al 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
March 1; 1988
(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
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; or
(3) any person or governmental agency
that requested the test as authorized under
subsection (a), (b), or lc) of section 7 or any
other person, as required by due process of
law, who obtained a warrant to obtain such
information in a court of competent juris-
diction.
(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. 11. 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.
Mr. KENNEDY. Mr. President, it is
quite apparent from the vote that was
just taken that the Senate is prepared
to debate this issue and hopefully
reach an early conclusion to its consid-
eration. I have talked with both my
colleague and principal cosponsor, the
Senator from Utah, as well as the ma-
jority leader?I have not had that op-
portunity with the minority leader?to
try and spell out at least some kind of
program for the benefit of the Mem-
bers so that we would know how we
might proceed and that we may move
in an orderly way, taking such time as
Is necessary for the consideration of
various amendments, but, nonetheless,
to move on through the various
amendments in an orderly procedure.
I do not know the disposition of
those that are in opposition to the leg-
islation, whether they are prepared to
enter into any time agreement or not
at this time or at any time. I would in-
quire, if there would be such a disposi-
tion or if there would be objection to
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March 1, 1988 CONGRESSIONAL RECORD ? SENATE S 1641
such disposition because, if there was
no objection, then I would seek out
the majority leader and see if he
would propose some kind of a time
consideration.
I see the Senator from Mississippi on
his feet. I think I know what his re-
sponse might be, but I would be glad
to yield to him for a question without
losing my right to the floor.
The PRESIDING OFFICER. The
Senator from Mississippi has been
yielded to for a question. The Senator
from Massachusetts has the floor.
The Senator from Mississippi.
Mr. COCHRAN. Mr. President, just
in response to the injuiry of the distin-
guished manager of the bill, I do know
that there are serious objections to
this bill on the part of several Sena-
tors. As a member of the committee,
the chairman will remember, when we
took it up, there were three votes in
committee against the bill. I was one
of those who voted against the bill
when it was reported out. I do know
there are amendments.
I do not imagine that it would be
helpful at this time to put a unani-
mous consent request before the
Senate. I think there would be an ob-
jection to limiting discussion or limit-
ing amendments at this point.
So I would hope that we could go
forward. There are amendments that
will be offered. We can debate those
and look at those. There is substantial
opposition to the bill, I might say.
The PRESIDING OFFICER. The
Senator from Massachusetts has the
floor.
Mr. KENNEDY. I think the Senator
has responded to the question. I hope,
as one Member, that we can go ahead
and proceed with the legislation and
consider various amendments and try
- to do it in a timely fashion. I think,
again, since there has been such an
overwhelming vote in favor of consid-
ering it, I think that, since Members
have indicated that the Senate should
consider this resolution, we do not
want to have an undue delay or undue
debate and not have some kind of reso-
lution of the various issues which
might be raised. We are familiar with
those that have been raised in the
committee deliberations, and I imagine
we will have a number of those again
raised here this afternoon.
So I will make my statement, and
the Senator from Utah will make his
statement, and hopefully we will move
ahead with the consideration of the
various amendments and get on with
the legislation.
Mr. President, today we begin con-
-sideration of S. 1904, the Polygraph
Protection Act of 1987, introduced by
myself and Senators HATCH, PELL,
STAFFORD, MATSUNAGA, METZENBAUM,
WEICKER, DODD, SIMON, HAFtKIN,
ADAMS, and Mmutsici on December 1
of last year.
On February 3, the Labor and
Human Resources Committee report-
ed the bill out favorably 13 to 3, with
Senator HUMPHREY joining the 12
original sponsors.
The time has come to restrict the
massive, unconscionable use of lie de-
tectors in the workplace.
This legislation is a fundamental
issue of workers' rights. Last year over
2 million workers were strapped to
these inaccurate instruments of in-
timidation.
We know that in most applications,
the devices cannot be trusted. It is
time to put an end to their unaccept-
able misuse that unfairly places so
many workers' jobs in jeopardy.
The abuse of polygraphs in the
workplace has been a concern of Con-
gress for almost 25 years. Scores of
bills have been introduced and dozens
of hearings held, but we have never
taken final action. Meanwhile, the use
of the machines has proliferated, espe-
cially in the workplace.
In 1964 a House Government Oper-
ations Subcommittee reported:
There is no lie detector, neither machine
nor human. People have been deceived by a
myth that a metal box in the hands of an
investigator can detect truth from decep-
tion.
A decade later, Senator Sam Ervin
observed:
A lie-detector test to innocent citizens
simply wanting a job reverses our cherished
presumption of innocence. If an employee
refuses to submit to the test, he is automati-
cally guilty. If he submits to the test, he is
faced with the burden of proving his inno-
cence.
All of these problems are compound-
ed by the fact that science has increas-
ingly found no scientific validity for
polygraphs in the overwhelming ma-
jority of applications.
In hearings by the Senate Labor
Committee in the last two Congresses,
we received strong testimony support-
ing the conclusion reached by the
Office of Technology Assessment in a
technical memorandum published in
1983:
While there is some evidence for the valid-
ity of polygraph testing as an adjunct to
criminal investigations, there is very little
research or scientific evidence to establish
polygraph test validity in screening situa-
tions, whether they be preemployment, pre-
clearance, periodic or aperiodic, random, or
dragnet.
Beginning with Massachusetts in
1959, 21 States and the District of Co-
lumbia have restricted or prohibited
the use of polygraphs in the work-
place.
Similarly, the vast majority of
courts refuse to admit polygraph tests
as evidence of guilt or innocence, due
to the documented unreliability of the
tests.
Yet the use of these machines has
climbed sharply in many jurisdictions,
in recent years. It is time for Congress
to act to protect American employees
from the massive misuse of this device,
which columnist William Safire has
called "the most blatant intrusion into
personal freedom in this country
today."
In the last Congress, the House of
Representatives passed Congressman
PAT WILLIAMS' private-sector ban on
polygraphs, with five industry exemp-
tions, by a vote of 236 to 173. The
Senate Labor and Human Resources
Committee reported out the Hatch-
Kennedy bill, with no industry exemp-
tions, by a margin of 11 to 5, with 4
Republicans and 7 Democrats voting
to report it favorably. Congress ad-
journed, however, before full action by
the Senate could take place.
In the current Congress, the House
of Representatives has again passed
the Williams bill, this time with only
two industry exemptions, by an even
wider margin of 254 to 158.
The bill before us today is an at-
tempt to balance the interests of em-
ployers and employees, based on the
known scientific evidence regarding
polygraphs and their potential for
abuse. It bans the use of preemploy-
ment and random testing, which make
up 85 percent of the testing being con-
ducted today and for which there is no
demonstrable validity.
At the same time, the bill preserves
the ability of employers to investigate
specific losses under limited circum-
stances, with employee safeguards in
place.
Under the bill, no employer can use
a polygraph for preemployment test-
ing of job applicants or random testing
of employees. But employers can use
the polygraph to investigate specific
economic losses, by testing employees
who had access to the property under
investigation and who they have rea-
sonable suspicion to believe were in-
volved in the incident.
The employer must file a police
report, an insurance claim, a report to
a regulatory agency, or sign a written
statement detailing the basis for the
polygraph test, before requesting any
employee to take the test.
No employee can be disciplined or
dismissed for refusing to take the test
or for failing the test without addi-
tional supporting evidence, and the
test can only be conducted under care-
fully prescribed circumstances.
The bill does not apply to Federal,
State, or local governments?because
the Constitution does. Most public em-
ployees are constitutionally protected
from polygraph tests, and the courts
are increasingly affirming this protec-
tion.
On October 28, the Texas Supreme
Court unanimously found that the
State mental health agency's use of
the polygraph "impermissably violates
privacy rights" protected by the State
constitution. The court went on to
hold that this protection should yield
only when the State can show that the
intrusion is "reasonably warranted for
the achievement of a compelling gov-
ernmental objective that can only be
achieved by no less intrusive, more
reasonable means."
Constitutional protections for public
employees, however, are not available
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S 1642
CONGRESSIONAL RECORD ? SENATE March 1, L988
to private sector employees, and it is
In the private sector that action by
Congress is essential to safeguard
workers' rights.
The principles of this legislation
have widespread support from both
business and labor. The bill before us
Is carefully balanced, and has received
the support of many polygraph users.
A number of large employer organi-
zations whose members currently use
the test and who opposed the House
bill, endorse and support our Senate
measure.
The American Association of Rail-
roads opposed the House bill, but en-
dorses the Senate bill.
The American Bankers Association
opposed the House bill, but endorses
the Senate bill.
The National Association of Conven-
ience Stores opposed the House bill,
but endorses the Senate bill.
The National Grocer's Association
opposed the House bill, but endorses
the Senate bill.
The International Mass Retailers
Association opposed the House bill,
but endorses the Senate bill.
The National Retail Merchants' As-
sociation opposed the House bill, but
endorses the Senate bill.
The National Restaurant Associa-
tion opposed the House bill, but en-
dorses the Senate bill.
The Securities Industry Association
opposed the House bill, but endorses
the Senate bill.
Some businesses oppose this bal-
anced approach, and some employee
advocates also oppose it. But it is a fair
measure based on the scientific evi-
dence available to us, and will offer
millions of workers long overdue pro-
tection from an employment practice
too frequently abused.
I urge my colleagues to reject
amendments weakening this bill, to
reject special interest exemptions, and
to support this important step to safe-
guard the rights and the jobs of mil-
lions of American workers.
The PRESIDING OFFICER (Mr.
FOWLER). The Senator from Utah.
Mr. HATCH. Mr. President, I am
sure that few of my colleagues expect-
ed to see, during this Congress, the
distinguished Senator from Massachu-
setts and myself standing side by side
in support of a labor bill, but S. 1904,
the Polygraph Protection Act of 1987,
is a truly unique bill. It is a bipartisan
measure that represents an equitable
compromise of several important, but
competing interests.
Applicants and employees have a
right to be judged on the basis of their
experience, their record, and their
character. They should not be pre-
judged, stigmatized or condemned by
the vagaries of a single test for which
the accuracy in many instances is
highly suspect. Conversely, in our
country, it is a regrettable fact that
employees steal. Workplace theft is
not uncommon in the United States.
But nevertheless, polygraphs, though
important, are not always accurate,
and even the courts of law reject them
as an evidentiary tool in most jurisdic-
tions of this country.
S. 1904, I think, addresses these two
concerns by barring the use of poly-
graph examinations where they are
the most likely to make a false identi-
fication, that is, in preemployment
screening or random verification
mechanism, but permitting the use of
these tests where they are the most
likely to be accurate, that is, when
given in conjunction with an investiga-
tion of a specific incident.
During the last several years, the
committee has been struggling with
the problem of how best to remedy
the problems caused by the wide-
spread use of the polygraph in the pri-
vate sector. It has been estimated that
over 2 million Americans are given a
polygraph examination every year,
and for many, the exam is given in a
manner which minimizes its chances
for accuracy. Too often, the polygraph
examination is given in an extremely
short period of time. These are called
15-minute quickie polygraphs, and the
possibility of false identification, espe-
cially of honest applicants, is extreme-
ly high.
The committee has established a
rather extensive record of the abuse
and misuse of lie detectors, a record
that proves quite conclusively that the
existing patchwork of State and local
regulation simply does not work. Em-
ployers have been rather candid in
their admission that the local prohibi-
tions are easily circumvented. Unfor-
tunately, it would appear that many
companies hire in one jurisdiction in-
tending to employ in another, their
sole reason for this tactic being to
avoid existing polygraph restrictions.
And perhaps, most importantly,
there is no scientific evidence that
demonstrates clearly that the preem-
ployment polygraph actually works.
Instead, a reading of the existing liter-
ature makes it quite clear that, while
the polygraph has some validity when
used in conjunction with an investiga-
tion, it cannot predict future perform-
ance.
On the other hand, Mr. President, it
is also clear that we have a problem of
theft in the workplace, and we do.
Something has to be done about that.
Although it is not pleasant to admit, it
is a fact that many employees, for a
variety of reasons, steal. While it is im-
portant that we protect the rights of
all citizens, we cannot at the same
time eliminate every effective mecha-
nism that an employer has available
today to combat crime in the work-
place.
It was these facts and consider-
ations, Mr. President, that led to the
formulation of S. 1904. By structuring
the bill as we have done, we have pro-
tected the rights of employees and ap-
plicants without jeopardizing the abili-
ty and rights of an employer to main-
tain a safe and crime-free workplace.
There are a few key provisions about
the bill, Mr. President, that I would
like to highlight. First, the bill does
not attempt to regulate Federal, State,
or local government use of the poly-
graph, thus avoiding conflicts with the
traditional police powers of State and
local governments.
Second, the bill makes clear that the
results of a polygraph examination
may not be the sole basis for taking an
adverse employment action against an
employee. Even the most passionate
advocates of the polygraph have told
the committee that an employer
should base its decision on more than
just the results of an exam.
Third, the bill resolves the difficul-
ties which arise when an employee re-
fuses to take a polygraph examination.
Under this legislation, an employer
may not give a polygraph test unless
there is a sufficient evidentiary basis
warranting the test. As the committee
notes in its report on S. 1904, an em-
ployer must have a reasonable suspi-
cion that the employee was involved in
the incident or activity in question,
and that the employee had access. The
report goes on to define "reasonable
suspicion" to include some observable,
articulate basis in fact, such as de-
meanor of the employee,`the totality
of the circumstances surrounding his
or her access to the property, and dis-
crepancies of fact which arise during
the investigaiton.
Once this evidentiary basis is estab-
lished, an employer can request that
an employee take a polygraph exami-
nation. If the employee does not pass
the test, this failure, combined with
the already established evidentiary
basis, is sufficient justification at least
with regard to this act for taking an
adverse employment action against
the employee.
Any employee refusing to take an
examination is treated under this leg-
islation the same as one who did not
pass the polygraph examination. An
employer is free to take any action
deemed appropriate. Without this pro-
vision, an employer would be taking a
serious legal risk when requesting a
polygraph exam and, as a result, few
would probably ever choose to make
such a request.
Fourth, an employer is free to act
upon statements or confessions made
during the examination process. In my
opinion, when such statements are
made in the controlled forum envi-
soned by the bill, that is, in conjunc-
tion with an investigation of economic
loss or injury, action upon such state-
ments is warranted.
Finally, the bill sets forth several
general standards concerning both
how a test can be given and the quali-
fications of an examiner. While the
American Polygraph Association does
not endorse this legislation, their rec-
ommendations in this area were heavi-
ly relied upon, and most of the provi-
sions in this section of the bill mirror
suggestions that their representatives
have made to the committee. Again, I
do not want my colleagues to be
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March .1, 1988 CONGRESSIONAL RECORD ? SENATE
misled by these comments and pre-
sume that the association endorses the
bill. They most certainly do not.
While these observations are by no
means an exhaustive summary of the
provisions of S. 1904, they highlight
the care given to the construction of
the bill and the utility of the provi-
sions which permit use of a polygraph
examination.
In sum, S. 1904 represents a Careful
balancing, after much consideration,
of a variety of competing interests. I
would like to say a word about the
principal union advocating passage of
this statute?the United Food and
Commercial Workers International
Union. In the past, I have earned. I
think, a somewhat undeserved reputa-
tion for fighting labor-backed legisla-
tion, but I have fought labor-backed
legislation which would throw undue
power toward the union movement. At
those times, I have repeatedly said
that when the unions were right,
when the legislation they advocated
was both necessary and equitable,
they would find an advocate in the
Senator from Utah.
I supported their efforts to pass the
Labor-Management Racketeering Act.
I was happy to see that legislation en-
acted into law. I was glad to assist Sen-
ator MOYNIHAN with the Senate's rati-
fication of ILO Conventions 144 and
147 earlier this year. Both efforts were
endorsed by the labor movement, and
it is no secret they are very pleased
with both of those matters. I am
happy to be the principal cosponsor of
S. 1904, and of course I could list
others.
We all know that this body will have
an opportunity before the November
elections to vote on several items on
the labor agenda. Several of these
bills, such as the so-called double-
breasting bill, will be vigorously op-
posed, because they are little more
than heavy-handed attempts to throw
power to unions at the expense of em-
ployees, open shop workers, minorities
and employers. Proposals such as this
raise serious questions, in my mind, as
to the quality of leadership of our
union movement at times.
S. 1904; the Polygraph Protection
Act of 1987, is not such a bill. William
Wynn, the president of the United
Food and Commercial Workers Inter-
national Union, should be congratulat-
ed for his willingness and foresight to
fashion a compromise that addresses
not just the needs of his members but
the needs of employers also. As one of
the few Members of this august body
to rise up through the ranks of a trade
union, I am proud that the union
movement has leaders like Bill Wynn.
His willingness to approach this issue
with an open mind, to work with both
sides of the aisle, and with anyone in-
terested in resolving this problem are
some of the key reasons that, unlike
other labor bills; S. 1904 has an excel-
lent chance, to become law.
Finally, Mr. President, I congratu-
late the chairman of the Committee
on Labor and Human Resources for
his handling of S. 1904 and his efforts
to move this bill on the floor. Federal
treatment of polygraph examinations
could have been an issue where both
sides retreated to their respective
camps and let action drown in a sea of
polemic speeches. Instead, the Senator
from Massachusetts has served as the
catalyst for the compromise now
before us.
I hope my colleagues will take notice
of today's unusual alliance on a labor
issue. S. 1904 is an effective, equitable
solution to the problem of polygraph
use in the private sector, and I ask
that all of my colleagues join in sup-
porting this important piece of legisla-
tion.
This bill is an effective and workable
solution to a vexing problem?how do
we address the problems arising from
polygraph use in the private sector
without jeopardizing an employer's
ability to combat crime in the work-
place.
The polygraph examination was
originally developed to assist criminal
investigations within the law enforce- -
ment community. It was intended to
help police investigators determine
whether the individual taking the test
had actually committed a specific act.
In describing this kind of test during
his testimony before the Committee of
Labor and Human Resources in 1986,
Dr. David Raskin, a noted polygraph
expert and professor of psychology at
the University of Utah, made the fol-
lowing observations: -
The control question technique is the test
most generally used in criminal investiga-
tions and other situations involving past
events, such as theft from an employer or
civil litigation. It incorporates questions spe-
cially designed to overcome many of the
problems inherent in the relevant-irrelevant
test. During an extensive and complicated
pretest interview which usually lasts at least
an hour, the relevant and control questions
are reviewed with the subject prior to their
presentation during the test phase. The con-
trol questions are designed to cause an inno-
cent person more concern than the relevant
question, and the innocent person is expect-
ed to show stronger reactions to them. In
the theft example, a control question might
be "During the first 23 years of your life,
did you ever take something which did not
belong to you?" That question is worded
and explained by the examiner in such a
way that the subject will answer "No" to
that question. Even though innocent sub-
jects are certain of the truthfulness of their
answers to the relevant questions, they will
be concerned about failing the test because
of deception or uncertainty about being
truthful in answering "No" to the control
questions on the test. The control questions
are- deliberately vague, cover a long period
In the subject's prior life, and include acts
which almost everyone has committed but
are embarrassed to admit in the context of a
Psychologically proper polygraph examina-
tion. On the other hand, guilty subjects are
more concerned about failing the test be-
cause they know that they are being decep-
tive to the relevant questions.
The outcome of a control question tests is
evaluated by a numerical scoring system
which is highly reliable. If the reactions are
stronger to the relevant questions, the sub-
S 1643
ject is diagnosed as deceptive. However,
stronger reactions to the control as com-
pared to the relevant questions are indica-
tive of truthfulness to the relevant ques-
tions. The control question procedure also
takes into account the individual reactivity
of the subject. Any factor which produces a-
generally high or low level of reactivity will
result in little difference between the reac-
tions to the relevant-control questions, and
the outcome will be inconclusive instead of
wrong. The control question test is adminis-
tered according to a standard format, and
the examination usually takes at least two
hours.
In most criminal investigations an inci-
dent has already occurred, and such meth-
ods are designed to assess the credibility of
suspects who deny knowledge or involve-
ment in criminal activity and informants
who offer information about the incident,
usually for some personal gain. Thus, appli-
cations in criminal investigation attempted
to determine truth or deception with regard
to a specific event which has already oc-
curred. Furthermore, every person has a
constitutional right to refuse to take such a
test without prejudice. Polygraph tech-
niques were originally developed for such
situations, and the scientific evidence indi-
cates that the control question test may
attain accuracies in the range of 85 to 95
percent when assessing credibility regarding
a past event.
UnfOrtunately, the most prominent
use of polygraphs in the private sector
Is not in conjunction with an investiga-
tion of a specific incident. Instead,
today many employers use polygraphs
to screen applicants. The tests- are
used to judge whether an individual is
likely to be an honest and hard work-
ing employee, to give the employer
some sense of security about the
people he is hiring.
The obvious problem with such use,
however, is that the polygraph was
not designed to predict future per-
formance. Consequently, the chances
for false identification are much
higher. And, in the preemployment
area, these mistakes tend to be false
positives instead of false negatives. As'
Dr. Raskin observed:
Whether we consider the laboratory or
field results, many more errors are made by
Incorrectly labeling innocent subjects as de-
ceptive than by labeling guilty subjects as
truthful. Those findings are consistent
throughout the scientific literature and em-
phasize the need for caution in the interpre-
tation of deceptive outcomes on polygraph
tests, especially when the results of such
tests are used in the employment context
where individuals may be required to take
the tests and their employability may be de-
termined entirely by the findings of the
polygraph examiner.
The problem of false positive errors is
magnified in those situations where the in-
cidence of deception is relatively low. That
Is known as the problem of baserate. When
the proportion of examinees practicing de-
ception differs from 50 percent, the confi-
dence in the outcome of a test is not the
same as the average accuracy of the test.
When most of the individuals tested are ac-
tually being truthful, many of the deceptive
outcomes are errors in labeling truthful
people as deceptive. Therefore, the confi-
dence in a deceptive test outcome is much
lower than we might expect with a highly
accurate test.
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S 1644 CONGRESSIONAL RECORD ? SENATE
When the proportion of guilty
people among those who are tested is
slight, which is the case in preemploy-
ment testing, the confidence that can
be placed in a finding of deception is
not high. For example, if we assume
that one out of every five persons
taking a preemployment polygraph
test is, in fact, guilty, and we are as-
suming that the overall may be as
high as 85 percent, which is rarely the
case in preemployment screening,
almost half of the individuals who fail
the test are in fact innocent.
It is estimated that there are ap-
proximately 2 million people a year
taking polygraph tests. Under the ex-
ample above, with the extremely gen-
erous assumption of 85-percent accura-
cy, roughly 320,000 honest people each
year would be labeled as deceptive be-
cause of false positive errors. Given
the reality about polygraphs in the
workplace today, some experts believe
the number of false identifications ex-
ceeds half a million each year.
It is interesting to note that these
figures are based upon the assumption
that the polygraph is being given in an
above board manner by competent ex-
aminers. Unfortunately, we also know
this assumption is false.
Too often applicants are subjected
to the 15 minute special, where the
level of accuracy is impossible to deter-
mine. During his testimony before the
committee, F. Lee Bailey, a staunch
advocate of the polygraph, stated that
such tests were not polygraph tests.
He went on to say that the type of ex-
amination he was defending takes a
minimum of 3 to 4 hours to complete.
The record is quite clear, Mr. Presi-
dent, that few employers are giving 3
to 4 hour polygraph examinations.
In sum, the committee has a rather
extensive record, on both a practical
and scientific basis, indicating that
preemployment polygraph examina-
tions are not accurate. As the Ameri-
can Psychological Association has
noted:
Despite many years of development of the
polygraph, the scientific evidence is still un-
satisfactory for the validity of psychophy-
siological indicators to infer deceptive be-
havior. Such evidence is particularly poor
concerning the polygraph use in employ-
ment screening.
The traditional response to these
findings is to list examples of confes-
sions that have been given by appli-
cants terrified by the prospects of
taking a polygraph examination. In
fact, some assert that the real benefit
of these tests is not the results of the
examination but their inherent ability
to terrify applicants into confession.
While no one can doubt the confes-
sional aspect of these exams, this fea-
ture is obtained at significant cost. Is
branding as liars over half a million
honest people each year a cost my col-
leagues are willing to pay to obtain the
occasional terrified confession? I think
not.
Another typical complaint heard is
that it is true that polygraphs have
been abused and misused, but that it is
an issue that is best left for the States.
Stephen B. Markman, Assistant Attor-
ney General for Legal Policy made
the following observation:
- The Framers of the Constitution set up a
structure that apportions power between
the national and state governments. The
values that underlie this structure of feder-
alism are not anachronisitic; they are not
the result of an historic accident; they are
no less relevant to the United States in 1986
than they were to our Nation in 1789. In
weighing whether a public function ought
to be performed at the national or state
level, we should consider the basic values
that our federalist system seeks to ensure.
Some of those principles include:
Dispersal of Power.?By apportioning and
compartmentalizing power among the na-
tional and 50 state governments, the power
of government generally is dispersed and
thereby limited.
Accountability.?State governments, by
being closer to the people, are better posi-
tioned as a general matter to act in a way
that is responsive and accountable to the ,
needs and desires of their citizens.
Participation.?Because state govern-
ments are closer to the people, there is the
potential for citizens to be more directly in-
volved in setting the direction of their af-
fairs. This ability is likely to result in a
stronger sense of community and civic
virtue as the people themselves are more
deeply involved in defining the role of their
government.
Diversity.?Ours is a large and desparate
nation; the citizens of different states may
well have different needs and concerns. Fed-
eralism permits a variegated system of gov-
ernment most responsive to their diverse
array of sentiment. It does not require that
public policies conform merely to a low
common denominator; rather, it allows for
the development of policies that more pre-
cisely respond to the felt needs of citizens
within different geographical areas.
Competition.?Unlike the national govern-
ment which is necessarily monopolistic in its
assertion of public authority, the exigence
of the states introduces a sense of competi-
tion into the realm of public policy. If, ulti-
mately, a citizen is unable to influence and
affect the policies of his or her state, an
available option always exists to move else-
where. This option, however limited, en-
hances in a real way the responsiveness of
state governments in a way unavailable to
the national government.
Experimentation.?The states, by provid-
ing diverse responses to various issues which
can be compared and contrasted, serve as
laboratories of public policy experimenta-
tion. Such experimentation is ultimately
likely to result in superior and in some in-
stances naturally uniform policies, as states
reassess their own and other states' experi-
ences under particular regulatory approach-
Containment?Experimenting with vary-
ing forms of regulation on a smaller, state
scale rather than on a uniform, national
scale confines the harmful effects of regula-
tory actions that prove more costly or detri-
mental than expected. Thus, while the suc-
cessful exercises in state regulation are
likely to be emulated by other states, the
unsuccessful exercises can be avoided.
While these values of federalism may
often mitigate in favor of state rather than
national action, other factors?including a
demonstrated need for national policy uni-
formity or for a monolithic system of en-
forcement?mitigate in favor of action by
the national government and must be bal-
anced in this process. For example, the need
March 1, 1.988
for a uniform foriegn policy on the part of
the United States clearly justifies national
rather than state action in this area. Simi-
larly, in the interstate commerce area, the
need for a uniform competition policy
argues strongly for national antitrust law;
and the need for efficient flow of interstate
transportation argues for national rather
than state regulation of airplane and rail
safety. In other words, by federalism, we are
not referring to the idea expressed in the
Constitution that certain governmental
functions are more properly carried out at
the level of the 50 states, while others are
more properly carried out by the national
government.
While reasonable individuals may well
differ on the direction in which these and
other factors of federalism point?and that
may well be the case in the context of S.
1815?it is nevertheless critical that we not
lose sight of the need to go through this
analytic process.
When these factors are examined in the
context of polygraph regulation, the bal-
ance in the Administration's judgment is
clearly struck in favor of state, not national,
regulation. Not only is there no need for na-
tional enforcement or uniformity with re-
spect to private sector polygraph use, but
the benefits of leaving regulation to the
states are evident; polygraph regulation is a
complex issue, subject to extensive ongoing
debate, in which a sustantial number of rea-
sonable responses are available to (and have
indeed been adopted by) the states.
Whether or not polygraphs should be reg-
ulated by some level of government is not
the issue here. Assuming that polygraphs
are abused by private employers?and there
is no question that such abuse is possible?
the states are as -capable as the national
government of recognizing and remedying
any such problem. In fact, they have the
greater incentive to do so since the rights of
their own citizens, to whom they, are imme-
diately accountable, are involved. As I indi-
cated earlier; 70 percent of the states have
already recognized a need for certain protec-
tions in this area and have provided them
through various forms of state legislation.
The position of the Department is
troubling for-several reasons. First, it
assumes incorrectly that Congress
cannot preempt State law in the area
of labor relations. In fact, most of the
important aspects of labor relations
have, over the last 50 years, become
subject to Federal statutory law. The
National Labor Relations Act of 1935,
the Fair Labor Standards Act of 1938,
the Labor-Management Reporting and
Disclosure Act of 1959, the Civil
Rights Act of 9164, the Age Discrimi-
nation in Employment Act of 1967, the
Occupational Safety and Health Act
of 1970, and the Rehabilitation Act of
1973 are just a few of the labor stat-
Ides enacted by Congress which have
preempted State labor law.
Second, the test proffered by the
Department of Justice is so stringent
that it is doubtful whether any cur-
rent Federal labor law or civil rights
statute would satisfy its standards. If
applied literally, it would appear to
preclude congressional involvement,
not only in the area of polygraph test-
ing, but also in every employment
practice currently regulated by the
Federal Government. Congress, on the
other hand, has consistently moved in
the other direction, and it is difficult
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March 1, 1988 CONGRESSIONAL RECORD ? SENATE
to imagine an employment issue other
than polygraph testing that is still
beyond the pukview of Federal control.
Since the 1940's, the U.S. Supreme
Court has broadly defined interstate
commerce, consistently ruling that
Congress has virtually unlimited au-
thority to enact legislation in the
labor context. See United States v.
Darby, 312 U.S. 100 (1941); Wickard v.
Filburn, 317 U.S. 111 (1942). As Justice
Stevens said in a recent decision:
Today, there should be universal agree-
ment on the proposition that Congress has
ample power to regulate the terms and con-
ditions of employment throughout the econ-
omy.
Concerning opinion, EEOC v. Wyo-
ming, 460 U.S. 226, 248 (1983).
It is interesting to note that during
the testimony presented on behalf of
the U.S. Department of Justice, the
Department's witness admitted that
it's opposition to S. 1815 would be con-
siderably diminished if it could be
shown that private employers were
crossing state lines to avoid complying
with polygraph bans in the States
where they were operating. In fact,
employer use of this deplorable prac-
tice is well documented.
Finally, the Department's position
would have us ignore the one fact on
which there seems to be a consensus
of opinion?existing state restrictions
and regulations have neither stopped
or curtailed polygraph abuse.
It should be clear that there is a
demonstrated need for uniform, na-
tional enforcement. The experience of
the last 10 years has shown most vivid-
ly that State statutes, such as they
are, have provided little effective pro-
tection for working men and women
against those who intentionally misuse
the polygraph instrument. To argue
that the States can, and are, providing
the best solution to polygraph abuse
its tantamount to arguing that Con-
gress should continue to ignore this
pervasive problem.
Even where States do provide some
regulations, it has often proved inef-
fectual. Take the case of Mary Brax-
ton, who testified before the commit-
tee. She was required to sign a consent
form when she was hired indicating
her willingness to take a polygraph
whenever her employer required her
to do so. She worked for 5 years with-
out any problems. In fact, on several
occasions, she received promotions.
, One day, she went to work and to
her surprise was asked to take a test.
She did and passed. The next day,
which was her day off, her manager
called and said she had to take an-
other exam. Her own words best de-
scribe what happened when she
showed up for the second test.
The examiner asked me, "Did I test
you yesterday?"
I told him, "Yes, but my manager
told me to come in and be retested
today."
He called the manager, and after
that he went about testing me again.
Before he hooked me up, he went over
some questions, like my name, wheth-
er I worked for the employer, how
long I had worked there, and what was
my position. He also asked me ques-
tion about whether I had ever stolen,
or if I knew of anyone who had. He
did not write anything down, and I am
not sure now whether he asked me all
these questions before he hooked me
up or while I was on the machine.
After the test, he looked puz7led and
said something like, "Are you sure this
is it? or "Is this all?" I felt like he was
not satisfied with the way the test had
come out.
He asked me some questions about
money at the pottery, and I told him
that I sometimes found money when I
swept the floor. We had a cup over the
register, and when we found money on
the floor, we would put it there for
anyone who needed some extra change
for Cokes or things.
He then wrote up a statement saying
that I had stolen $5 or $10 from the
pottery. I refused to sign it. He got
mad and threw the papers across the
desk and onto the floor. At that point
I got very nervous and wondered what
in the world was going on. I was still
doing 100 shakes a minute?as I am
doing now. He would not test me again
if I would not sign the paper. I agreed
to sign the paper if he would give me
another test, and the test would clear
me. He retested me?it lasted about 5
minutes or less, because he went
through the questions real fast. I
spent no more than 20 minutes with
the examiner that day.
After that, he showed my confession
to my employer. He did not show them
the test results. I had reported back to
my building and was informed later
that I had no job.
One of the employees walked up to
me and stated that he stole every day,
and he had taken the test, too, but
had not gotten caught.
I felt betrayed, because I had built
myself up on the job and had worked
hard for my employer, and all of. a
sudden everything was gone. I was
branded as a thief. I could not face the
world, my friends, and my kids. When
I told my kids, they felt bad about me
being fired, and they could not under-
stand because they said, "Mama, you
don't steal."
They had a rough time in -school,
too, after that because other kids said
that their mother had been fired be-
cause she stole.
My friends were supportive. They
came by and told me I should fight
the pottery on this. I did not talk to
people other than my friends and
family about it, because it was too
painful. I cried many nights about it. I
went to a doctor and got some pills to
help me.
One day, about 2 weeks later, I just
put it in my mind that I had to go look
for a job. While I was applying for a
job, I told the owner about what had
happened to me, and he told me that
he had heard about it. That made me
feel bad, because I did not get the job,
S 1645
and because someone in the communi-
ty knew about it, and I thought a lot
of people must have been talking
about it.
I applied for a number of jobs, but
no one would hire me. I finally went to
the unemployment office. I did not
think I would get any benefits, but I
did. The Pottery appealed the unem-
ployment decision, and I went to legal
aid. They helped me win again, and
they told me that I might sue the Pot-
tery and the Polygraph Examination
Co. I won my case against the poly-
graph examiner and his company. And
it took a number of years to live the
story down. Now, if I have to look for
a job, I tell the employer what hap-
pened to me and that I will not take a
polygraph test. If the test is required,
I do not want the job. So far that has
worked well for me.
Ultimately, Mrs. Braxton won her
law suit and a $21,000 judgment
against the polygraph company, un-
fortunately, she never received a cent
of her money, because the examiner
packed up his bags and fled the State,
free to practice his deplorable tactics
In another jurisdiction.
Mr. President, the case for taking
legislative action against the poly-
graph has been made. State regulation
will not work, nor is there any scientif-
ic evidence that the polygraph can
predict future performances. And,
there seems to be little if any interest
among private sector employers to
conduct the type of exam, a 3- or 4-
hour extensive polygraph test, that
most polygraph experts believe is nec-
essary to ensure some accuracy of
result.
S. 1904 was drafted with these reali-
ties in mind. Its primary purpose is
twofold. First, it prohibits preemploy-
ment and random polygraph tests,
where the possibility of mistaken iden-
tifications are the highest, where the
likelihood of identifying an honest
person as a liar is prevalent. Second, it
permits polygraph tests if given in
conjunction with an investigation of
economic loss or injury to the employ-
er, where the likelihood of accuracy is
highest.
The bill also requires that certain
standards be met when giving such ex-
aminations and that examiners be suf-
ficiently qualified, bonded, and con-
trolled. S. 1904 also makes it clear that
the polygraph, by itself, cannot be the
sole basis for taking an adverse em-
ployment action. I might note, Mr.
President, that this last point is one
constantly stressed by every reputable
polygrapher that I have talked with
during the last 3 years,
In drafting such a bill, there are ob-
viously a few key provisions. First, S.
1904 does not attempt to regulate Fed-
eral, State, or local government use of
the polygraph. While the opponents
of this legislation assert that this fact
is one of the bill's most critical fail-
ings, I feel it is one of its real
strengths.
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S 1646 CONGRESSIONAL RECORD ? SENATE
I do not feel it is appropriate for the
Committee on Labor and Human Re-
sources to be interfering with the tra-
ditional police powers of State and
local governments. Instead, S. 1904
carefully avoids such interference. As
to the Federal Government, Congress
has already established guidelines and
regulations governing the limited in-
stances in which it will use the poly-
graph. Again, I found little interest
among private sector employers to
engage in the kind of polygraph test-
ing practiced by the Federal Govern-
ment. Often these tests take 1 to 2
days and are followed by a detailed
field investigation. I have yet to meet
a private sector employer that utilizes
similar procedures.
Second, S. 1904 does not apply to
contractors for several agencies who
are subject to intelligence and coun-
terintelligence activities. Again, the
regulations governing use of poly-
graphs by such employers are ex-
tremely stringent and, given the com-
pelling governmental interest in na-
tional security, this limitation appears
not only justified but highly appropri-
ate.
Third, S. 1904 contains section 7(d)
which provides that an employer may
request an employee ". * to submit
to a polygraph test if the test is ad-
ministered in connection with an ongo-
ing investigation involving economic
loss or injury to the employer's busi-
ness, including theft, embezzlement,
misappropriation or an act of unlawful
industrial espionage or sabotage."
The committee's report makes it
clear that the term economic loss or
injury applies not only to instances
where the employer can demonstrate a
financial loss but also those instances,
such as money laundering, Which
might actually result in a short-term
gain to the employers.
Similarly, the report makes it clear
that also included under this term
would be instances such as theft from
property managed by an employer.
This language was added to address
the fact that many crimes and situa-
tions may cause only indirect econom-
ic loss or injury. For example, a repair-
man at an apartment building might
steal repeatedly from building tenants.
An artful lawyer might argue that
such theft would not cause direct eco-
nomic loss or injury to the employer
but to the tenant and thus would not
be an event subject to the act. The
committee report makes it clear that
such theft would be covered, thus
making it possible to avoid such an un-
intended anomaly.
Fourth, S. 1904 makes sure that the
results of a polygraph examination are
not the sole basis for an adverse em-
ployment action. As I noted before, I
have yet to hear from any reputable
polygraph expert that the results of a
polygraph should be the only basis on
which to decide an employee's fate.
They all appear to agree that there
should be some corroborating eviden-
tiary basis before an action is taken.
The legislation provides this require-
ment.
Fifth, S. 1904 addresses the issue of
what happens when an employee re-
fuses to take a polygraph requested by
an employer in conjunction with sec-
tion 7. According to section 8(b), an in-
dividual who refuses to take an exam
Is treated the same as one who did not
pass. An employer may take an ad-
verse employment action, including
termination, if it has additional sup-
porting evidence, the same evidentiary
basis needed to give a polygraph. Con-
sequently, an employer is not put in
an adverse legal situation by request-
ing that an employee take a polygraph
examination in accordance with the
requirements of the bill and the em-
ployee refuses. Without this provision,
the exemption would be a charade, of
little or no use in the private sector.
Sixth, S. 1904 addresses the impor-
tant issue of how to handle confes-
sions or statements made during the
examination. The bill makes it clear
that an employer is free to act upon
statements made before the examina-
tion or even during a test. The com-
mittee's review of the use of polygraph
has provided numerous examples of
individuals who have confessed to a
variety of acts when confronted with
the possibility or the reality of a poly-
graph examination. In my opinion,
where such statements are made in
the focused forum envisioned by the
bill, that is in conjunction with an in-
vestigation of a specific economic loss
or injury to an employer, action upon
such statements is warranted. As a
result, S. 1904 does not impinge upon
such action by an employee.
Seventh, S. 1904 addresses the prob-
lem of lawyers to the degree that the
problem of lawyers can be addressed
under any one piece of legislation. The
act makes it clear that while an em-
ployee has the right to obtain and con-
sult with legal counsel before each
phase of the test, his or attorney
cannot be present in the room, during
the actual examination. Some have
argued that counsel should be present
during the examination, but I do not
understand how one could run a legiti-
mate polygraph test with a lawyer in
the room who is constantly disrupting
the process. Again, S. -1904 strikes a
reasonable and equitable balance be-
tween the competing interests in-
volved.
Eighth, S. 1904 provides that, before
a polygraph exam can be given, an em-
ployer must, among other things, do
one of four things. It must file a
report of the incident or activity with
the appropriate law enforcement
agency, the employer's insurer, the ap-
propriate Government agency, or it
must execute a statement. Under this
fourth category, an employer, must
keep on file for three years a state-
ment setting forth the evidentiary
basis which justifies resorting to the
use of a polygraph. This requirement
is a protection not only for employees
but for employers. They will now
March 1, 1988
know what type of materials they
need to retain to ensure compliance
with the law.
I have been disturbed, Mr. President,
because some opponents of the bill
have been contacting members of this
body asserting that the only way an
employer can give a polygraph is, if it
first contacts the police, a burden they
find excessive. While such a burden
may or may not be excessive, certainly
drafting a memorandum cannot be
called burdensome. As a lawyer famil-
iar with existing Federal and State
labor statutes, I worry about the
wisdom of any employer who is not al-
ready retaining a written record of
every adverse employment action.
Ninth, S. 1904 does establish several
qualifications for examiners and
guidelines for the giving of tests. In
drafting these provisions, great reli-
ance was placed upon the recommen-
dations of the American Polygraph As-
sociation. While I recognize that this
organization does not support S. 1904,
they did provide the committee with
several ideas on how to ensure compe-
tent examiners and accurate exams.
As William Scheve, the president of
the American Polygraph Association
testified in 1985:
We would suggest that if the Federal Gov-
ernment decides to regulate the administra-
tion of polygraph examinations, that it do
so by establishing recommended standards
and guidelines for the polygraph industry
and by strongly encouraging the states to
adopt them.
A regulatory approach such as this would
establish the training criteria that compe-
tent examiners consider to be essential for
the proper administration of all polygraph
examinations.
Federal standards and guidelines could
also address issues such as appropriate in-
strumentation, proper examination proce-
dures, and the necessity for effective en-
forcement policies. The employers' use of
polygraph examination results could also be
addressed. We believe that by adopting
these standards, coupled with our sugges-
tions for continuing education and profes-
sional affiliation, citizens and employers
alike would be assured that tests would be
both fair and accurate.
The provisions found in section 8 (c)
and (d) are based in larger part on the
recommendations of the association.
Finally, S. 1904 requires that poly-
graph examiners be bonded. By doing
so, the Mary Braxtons of this world
will no longer be without recourse
against the deplorable acts of incom-
petent polygraphers.
Looking over these comments, I
hope my colleagues will agree that S.
1904 is a carefully crafted, effective so-
lution to the use of polygraphs in the
private sector. It deserves the support
of this body, and I hope We will act on
legislation in an expeditious manner.
I think this- Is important legislation.
I hope we will have support for this
bill on the floor And that we can pass
this bill all the way through both
Houses of Congress in its present
form. This Senator will do everything
he can to work toward that end.
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March I, 1,988 CONGRESSIONAL RECORD ? SENATE
Mr. COCHRAN. Mr. President, I rise
to note for the record and to advise
Senators that there were three of us
in the committee who voted against re-
porting this bill to the Senate. Those
reasons are stated in minority views
that are included as a part of the com-
mittee report. This Senator did not ac-
tually write views that were included
in the report, but I wish to express
some concerns now to advise Senators
that there are objections to this legis-
lation.
As we were waiting on a quorum
when we were taking up the bill and
preparing to report it out, I made the
mistake of reading the bill. That may
be why I voted against it. I was at-
tracted to one provision that just
jumped out at me; it is on page 35 of
the bill now on the desk of every Sena-
tor. It is entitled "Promulgation of
Standards," and I will read it with the
indulgence of the Senate:
The Secretary shall establish standards
governing individuals who, as of the date of
the 'enactment of this act, are qualified to
conduct polygraph tests in accordance with
applicable State law. Such standards shall
not be satisfied merely because an individ-
ual has conducted a specific number of poly-
graph tests previously.
It strikes me that we are creating, by
passing this bill, an authority at the
Federal level for a Cabinet-level Secre:
tary to actually promulgate standards
on which States will-have to base their
licensing of polygraph examiners. If
there is a different meaning, for this
language, I hope the Senate will be ad-
vised.
What concerns me about this provi-
sion is that it marks the first time ever
the Federal Government has attempt-
ed to legislate standards for a profes-
sion or vocation it has never regulated
before. And there are many other vo-
cations and areas of activity for which
the Federal Government does not pur-
port to establish standards for licens-
ing.
I think immediately of the medical
profession, where the life, safety, and
health of individuals is very directly
affected by the competence and ability
of those providing medical care. Under
our system of government the States
have the power to prescribe standards
and qualifications that must be met by
those who seek to be licensed as medi-
cal doctors. This is not the responsibil-
ity of the Federal Government. And
there are many, many other illustra-
tions of that. It may be that the Fed-
eral Government ought to be more in-
volved in some areas, but I do not
think the case has yet been made. Cer-
tainly, in this area where there has
never been any licensing to permit the
Secretary of Labor to establish stand-
ards for polygraph examiners would
be a very sharp departure from past
practice and from the division of
power between the State and Federal
governments.
So I rise that question. I may have
an amendment that I will offer -later
to deal with this question, to try to
define exactly what power we are con-
ferring on the Federal Government in
the area of licensing or standard set-
ting, and to see whether or not the
Senate agrees with a change in this
section.
I sympathize with the views ex-
pressed by the managers of the bill
that we certainly do not want to see in
our country in abuse of the rights of
individual workers or prospective em-
ployees in any way by employers in
the administrating of polygraph ex-
aminations as a condition to employ-
ment. I do think, however, that in
some industries there are legitimate
concerns about the honesty, integrity,
and physical condition of prospective
employees. Employers have the right
to inquire and to satisfy themselves
that applicants for those jobs are fit
and well-suited for employment in
those industries.
I think for instance about the situa-
tion where employees may be called
upon to handle large sums of curren-
cy. If in their background there are
examples of behavior that show that a
prospective employee is not trustwor-
thy, that employer has a right to find
that out. On the other hand, if a poly-
graph examiner is qualified for the job
under licensing of the State, then in
my judgment there should not be a
Federal law to interfere.
I hope that we look very carefully at
this legislation before we rush to pas-
sage or rush to vote. I know the distin-
guished Senator from Indiana, Sena-
tor QUAYLE, has expressed opposition
in the committee to the bill and has
amendments that he wants considered.
There are other Senators who also
contemplate offering amendments.
I appreciate very much having this
opportunity to alert the Senate to the
fact that there is opposition to this
legislation, to state why there is oppo-
sition from this Senator at this point,
and to express the hope that we will
consider carefully suggestions for
change before we enact the bill.
Mr. KENNEDY. Mr. President, just
briefly I welcome the points that have
been made by the Senator from Mis-
sissippi. He has made these comments
during the course of our own consider-
ation of the legislation.
We, over the course of our hearings,
found that there were a number of in-
stances where States did not have any
kind of regulation or prohibition in
terms or licensing of various of the
polygraph personnel, and that many
of those companies would actually use,
in many instances, the kinds of abuses
that would fall into the type of abuses
that were described earlier, and then
assigned those personnel to the vari-
ous States where there were prohibi-
tions against any kind of the intrusive
aspects of polygraph that has been de-
scribed.
So at the present time we find very
substantial abuses in circumventing
State regulations and we had impres-
sive testimony along those lines.
S 1647
Given the dramatic growth of the
use of polygraph across the country
and the abuses which have been so evi-
dent, it seemed like the type of actions
that we have recommended would be
legitimate and be worthwhile.
I want to point out that we do not
preempt those States that have effec-
tive laws. We respect those. But I
would mention to the Senator from
Mississippi that it was only about a
year ago in the omnibus drug bill that
Congress voted overwhelmingly to
grant the Secretary of Transportation
power to review the States' licensing
of truckdrivers, not that that neces-
sarily, should as one instance be used
as a blank predicate for the support of
this legislation. But recognized were
the dangers that were presented, par-
ticularly in many States that did not
have the kind of review in terms of the
safety and' the training various truck-
drivers?in fact, they were using the
interstate system?and that these mat-
ters were in effect a matter of inter-
state commerce; that providing that
kind of limited review by the Depart-
ment of Secretary of Transportation
was warranted. We have a number of
other areas-as well.
I respect the arguments that have
been made by the Senator from Mis-
sissippi, but I do think in light of the
overwhelming evidence during the
course of our hearings, talking about
the circumvention of various State
laws and the growth of the various
uses of the polygraphs, that this activ-
ity is warranted.
Mr. President, as I say, we are pre-
pared to deal with any of the various
amendments. I am hopeful we will be
able to address those because we are
prepared to deal with those now.
? Mr. SIMON. Mr. President, I am
pleased today to be counted among
those in support of the Polygraph Pro-
tection Act of 1987.
Twenty-one States have either
banned or restricted the use of lie de-
tectors in the workplace, but the
number of Americans who must
submit to these tests continues to
grow. Working men and women in the
private sector are subjected to more
than 2 million lie detector tests every
year-4 times the number given 10
years ago. State lie detector prohibi-
tions have proven inherently inad-
equate.
The truth is that polygraph tests
cannot accurately distinguish truthful
statements from lies. The Congres-
sional Office of Technology Assess-
ment has reviewed field studies of
polygraph validity and has found that
honest people are more likely to fail
polygraph tests than dishonest people.
The tragedy is that at least 200,000
Americans are wrongfully denied em-
ployment opportunities every year=
not because of their work records, but
rather because employers rely on inac-
curate lie detector tests. Honest work-
ers would be better off if their employ-
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S 1648 CONGRESSIONAL RECORD ? SENATE March 1, 1988
ers made these personnel decisions by
simply flipping a coin.
Certainly American workers must be
afforded the same protection from
polygraph tests which is routinely
granted to indicted suspects in crimi-
nal proceedings. These people cannot
be forced to take polygraph tests, and
even the Justice Department opposes
the use of polygraph examination re-
sults in criminal trials as evidence of
guilt or innocence. Yet many employ-
ees and job applicants can be forced to
take lie detector tests for any reason
whatsoever.
Mr. President, this bill will prohibit
the use of preemployment polygraph
tests?the area of greatest abuse of ap-
plicants' rights by potential employ-
ers. It does not, however, prohibit the
use of polygraph tests completely. If a
loss report has been filed with a Fed-
eral agency or an insurance company,
a detailed written statement has been
made of the loss by an employer, or
the police and a complete investiga-
tion has been made leading to certain,
specified suspects, the polygraph may
be used under certain restrictive cir-
cumstances. This, Mr. President, is
certainly an equitable procedure for
dealing with polygraph testing. We
must address the problem of abuse
here, and I would hope that many of
my colleagues will agree with me and
vote for this bill.?
Mr. THURMOND. Mr. President, I
rise today to offer an amendment to
this bill to require rotating health
warning labels for all alcoholic bever-
age containers. This is the same legis-
lation I introduced earlier this year
along with my distinguished col-
leagues Senator METZENBAUM, Senator
HARKIN, and Senator EVANS.
Last year, I took the opportunity to
Inform my colleagues of the continu-
ing lack of responsibility on the part
of the alcohol beverage industry re-
garding their advertising practices.
Such irresponsibility demands con-
gressional action to counter the ad-
verse effect these practices are having
on the Nation.
Mr. President, the Public Health
Service recently completed a study on
the potential educational effects of
health warning labels and concluded
that labels can be effective in increas-
ing consumer knowledge and can have
an impact on consumer behavior, par-
ticularly in combination with other
educational initiatives.
Mr. President, health warning labels
are an important step to educate the
consumer on the potential hazards of
alcohol consumption.
The warnings in this measure, which
would be placed conspicuously on the
beverage containers, would read as fol-
lows:
WARNING: The Surgeon General has deter-
mined that the consumption of this prod-
uct, which contains alcohol, during pregnan-
cy can cause mental retardation and other
birth defects.
WARNING: Drinking this product, which
contains alcohol, impairs your ability to
drive a car or operate machinery.
, WARNING: This product contains alcohol
and is particularly hazardous in combina-
tion with some drugs.
WARNING: The consumption of this prod-
uct, which contains alcohol, can increase
the risk of developing hypertension, liver
disease and cancer.
WARNING: Alcohol is a drug and may be
addictive.
Mr. President, alcoholism and alco-
hol abuse are recognized as one of our
Nation's most serious problems.
To illustrate the extent of alcohol
abuse, here are a few relevant exam-
ples:
First. The National Institute on Al-
cohol Abuse and Alcoholism INIAAAl
says that alcohol costs the American
economy nearly $120 billion per year
In increased medical expenses and de-
creased productivity.
Second. The NIAAA estimated that
18.3 million Americans are "heavy
drinkers" which is defined as consum-
ing more than 14 drinks per week.
Third. In 1985, over 12 million Amer-
ican adults had one or more symptoms
of alcoholism. This represents an in-
crease of 8.2 percent from 1980.
Fourth. Since 1981, the Surgeon
General has officially advised women
to abstain from drinking during preg-
nancy. Despite this warning, fetal al-
cohol syndrome is the third leading
cause of birth defects with accompa-
nying mental retardation. It is the
only preventable birth defect among
the top three. However, a 1985 govern-
ment survey revealed that only 57 per-
cent of Americans had even heard of
fetal alcohol syndrome.
Fifth. A 1987 HHS report to Con-
gress entitled "Alcohol and Health"
cites that nearly one-half of all acci-
dental deaths, I repeat, one-half of all
accidental deaths?suicides and homi-
cides are alcohol related. Nearly half
of the convicted jail inmates were
under the influence of alcohol when
they committed the crime.
Sixth. Alcohol related traffic acci-
dents claim over 23,987 lives each year
in the United States.
Seventh. Among teenagers, alcohol
abuse has reached epidemic propor-
tions. According to the 1987 HHS
report, an estimated 30 percent or 4.6
million adolescents experience nega-
tive consequences of alcohol use, such
as poor school performance, trouble
with parents, or trouble with the law.
Eighth. According to recent statis-
tics, alcohol remains the most widely
used drug among American youth.
For many years I have firmly be-
lieved in the need for warning labels
on alcoholic beverages, and I have in-
troduced this type of legislation
before. In fact, I cannot imagine any
argument against this legislation
which I have not previously heard.
More importantly, what I said in sup-
port of such legislation in 1979 and in
1981 is just as true today:
If such a warning label deters a potential
abuser of alcohol from taking a drink, or
prevents a casual drinker from climbing
behind the wheel of a car when he has had
"one too many", or prevents a pregnant
woman from potentially causing harm to
her unborn child, then this legislation will
be effective and worthwhile.
Mr. President, I will never forget the
letter I received from Mr. Ben Robin-
son of Alexandria, VA, regarding alco-
hol labeling legislation. I want to read
you a portion of that letter because it
briefly, and very persuasively, explains
the importance of this bill.
Such a law is very much needed! It prob-
ably would not deter veteran drinkers, but
for the young still unaddicted it would cause
them to think twice before drinking. I speak
from sad experience. Just a little over a year
ago, August 12, 1984, our family was
shocked with the news that our 22 year old
son was dead. From information that we re-
ceived later in bits and 'pieces we learned
that while camping with two other boys
near a fishing pond in West Virginia, they
all drank heavily of hard alcohol. Bruce, our
son, passed out and never awakened.
The Certificate of Death reads for the
cause "acute ethyl alcohol intoxication, and
extensive aspiration of stomach contents
Into tracheobronchial tree." Bruce was a
novice to whiskey drinking. He did drink
beer in moderation, but I had never known
him to drink whiskey?and he and I were
close.
I cannot help but think that warning
labels carefully written as to consequences
would prevent alcohol abuse and deaths
among young people.
Within a few weeks after Bruce's death,
Paul Harvey in his newscast said alcoholic
'deaths among the young are not uncom-
mon. He mentioned a young girl who had
drunk to excess and gone into a coma. He-
said that youth are very susceptible to alco-
hol poisoning and this is especially true
when body temperature is low ... . I wish
you success and if there is something I can
do to help, let me know.
Mr. President, this legislation will
serve to provide individuals with the
knowledge necessary to make an in-
formed decision on whether or not to
consume alcoholic beverages. Similar
to cigarette warning labels, these
labels do not create any legal restric-
tion or penalty to those who do not
heed the warnings. They merely pro-
vide cautionary notice that consump-
tion of the product may entail serious
consequences in certain situations.
Mr. President, I have received sever-
al letters from organizations endorsing
health warning labels on alcoholic bev-
erages. These organizations include:
the American Medical Association; the
American Academy of Pediatrics; the
National Council of Alcoholism; the
Center for -the Science in the Public
Interest; the General Association of
General Baptists; Mothers Against
Drunk Driving; the American Council
on Alcohol Problems; the National
Rainbow Coalition; the National PTA;
the Christian Life Commission; the
Association for Rretarded Citizens; the
National Women's Christian Temper-
ance Union; and the American Medical
Society on Alcoholism & Other Drug
Dependencies.
Mr. President, the Senate passed al-
cohol warning labels legislation in
1979. I repeat, this Senate passed alco-
hol warning labels legislation in 1979.
I urge my colleagues to support the
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March 1, 1988
CONGRESSIONAL RECORD ? SENATE S 1649
passage of this vitally important legis-
lation and reaffirm the commitment
of this body to protecting the health
of the American people.
AMENDMENT NO. 1472
(Purpose: To require a health warning on
containers of alcoholic beverages)
Mr. THURMOND. Mr. President, I
send an amendment to the desk and
ask for its immediate consideration.
The PRESIDING OFFICER. The
clerk will report the amendment.
The legislative clerk read as follows:
The Senator from South Carolina (Mr.
THURMOND] proposes an amendment num-
bered 1472.
Mr. THURMOND. Mr. President, I
ask unanimous consent that further
reading of the amendment .be dis-
pensed with.
The PRESIDING OFFICER. Hear-
ing rio objection, it is so ordered.
The amendment is as follows:
At the appropriate place, insert the fol--
lowing:
SEc. . (a) Congress finds that?
(1) the most abused drug in America is al--
cohol;
(2) alcohol use costs the American econo-
my nearly $120,000,000,000 per year, includ-
ing increased medical expenses and de-
-creased productivity;
(3) alcohol related traffic accidents claim
over 23,000 lives each year- in the United
States;
(4) over 12,000,000 American adults- have
one or more symptoms of alcoholisM, repre-
senting an 8.2 percent increase in problem
drinking since 1980;
(5) since 1981, the Surgeon General has
officially advised women to abstain from
drinking during pregnancy, and despite this
warning, fetal alcohol syndrome is the third
leading cause of birth defects with accompa-
nying mental retardation;
(6) fetal alcohol syndrome is the only pre-
ventable birth defect among the top three
types of birth defects in the United States,
nevertheless, recent surveys reveal that only
57 percent of Americans have heard of fetal-
alcohol syndrome;
(7) nearly one-half of all accidental
deaths, suicides, and homicides are alcohol
related, and nearly half of the convicted jail
inmates were under the influence of alcohol
when they committed the crime; -
(8) among teenagers, alcohol abuse has
reached epidemic proportions and an esti-
mated 30 percent or 4,600,000 adolescents
experience the negative consequences of al-
cohol use (such as poor school performance,
trouble with parents, or trouble with the
law);
(9) in 1986, alcohol remained the most
widely used drug among American youth;
(10) the Public Health Service has recent-
ly completed a study on the potential educa-
tional effects of health warning labels on al-
coholic beverages and concluded that such
labels can be effective in increasing con-
sumer knowledge and can have an impact
on consumer behavior, particularly in com-
bination with other educational initiatives;
(11) the statistics cited in the preceding
paragraphs indicate that many Americans
are not aware of the adverse effects that the
consumption of alcoholic beverages may
have on health;
(12) it is necessary to undertake a serious
national effort to educate the American
people concerning the serious consequences
of the consumption of alcoholic beverages;
and
(13) warning labels on the containers of
alcoholic beverages concerning the effects
on the health of individuals resulting from
the consumption of such beverages would
assist in providing such education.
(b) Title V of the Public Health Service
Act is amended by adding at the end thereof
the following new part:
"PART 0?PUBLIC AWARENESS CONCERN-
ING THE HEALTH EFFECTS OF ALCOHOL-
IC BEVERAGE CONSUMPTION
"SEC. 550. PUBLIC AWARENESS.
"(a) DEFINITIONS.?For purposes of this
section?
"(1) ALCOHOLIC BEVERAGE.?The term 'alco-
holic beverage includes distilled spirits,
wine, any drink in liquid form containing
wine to which is added concentrated juice or
flavoring material and intended for human
consumption, and malt beverages.
"(2) COMMERCE.?The term 'commerce has
the same meaning as in section 3(2) of the
Federal Cigarette Labeling and Advertising
Act.
"(3) CONTAINEIL?The term 'container'
means any container, irrespective of the ma-
terial from which made, used in the sale of
any alcoholic beverage.
"(4) DISTILLED SPIRITS.?The term 'dis-
tilled spirits' means any ethyl alcohol, hy-
drated oxide of ethyl, spirits of wine, whis-
key, rum, brandy, gin, and _other distilled
spirits, including all dilutions and mixtures
thereof, for nonindustrial use.
"(5) MALT BEVERAGE.?The term 'malt bev-
erage' means a beverage made by the alco-
holic fermentation of an infusion or decoc-
tion, or combination- of both, in potable
brewing water, of malted barley with hops,
- or their parts, or their products, and with or
without other malted cereals, and with or
without the addition of unmalted or pre-
pared cereals, other carbohydrates or prod-
ucts prepared therefrom, and with or with-
out the addition of carbon dioxide, and with
or without other wholesome products suita-
ble for human food consumption.
"(6) PERSON.?The term 'person' has the
same meaning as in section 3(5) of such Act.
"(7) SALE AND DISTRIBUTION.?The terms
'sale' and 'distribution' include sampling or
any other distribution not for sale.
"(8) UNITED STATES.?The term 'United
States' has the same meaning as in section
3(3) of such Act.
"(9) WINE.?The term 'wine' has the same
meaning as in section 17(a)(6) of the Feder-
al Alcohol Administration Act (27 U.S.C.
211(a)(6)).
"(b) GENERAL RULE.?It shall be unlawful
for any person to manufacture, import, dis-
tribute, sell, ship, package or deliver for
sale, distribution, or shipment, or otherwise
introduce in commerce, in the United
States, any alcoholic beverage during a cal-
endar year unless the container of such bev-
erage has a label bearing one of the follow-
ing statements:
"(1) 'WARNING: THE SURGEON GEN-
ERAL HAS DETERMINED THAT 1151!,
CONSUMPTION OF THIS PRODUCT,
WHICH CONTAINS ALCOHOL, DURING
PREGNANCY CAN CAUSE MENTAL RE-
TARDATION AND OTHER BIRTH DE-
FECTS.
"(2-) 'WARNING: DRINKING THIS
PRODUCT, WHICH CONTAINS ALCO-
HOL, IMPAIRS YOUR ABILITY TO
DRIVE A CAR OR OPERATE MACHIN-
ERY.
"(3) 'WARNING: THIS PRODUCT CON-
TAINS ALCOHOL AND IS PARTICULAR-
LY HAZARDOUS IN COMBINATION
WITH SOME DRUGS.
"(4) 'WARNING: THE CONSUMPTION
OF THIS PRODUCT, WHICH CONTAINS
ALCOHOL, CAN INCREASE THE RISK
OF DEVELOPING HYPERTENSION,
LIVER DISEASE, AND CANCER.
"(5) 'WARNING: ALCOHOL IS A DRUG
AND MAY BE ADDICTIVE.'. -
"(c) LOCATION OF LABEL.?The label re-
quired by subsection (a) shall be located in a
conspicuous and prominent place on the
container of a beverage to which such sub-
section applies. The statement required by
such subsection shall appear in conspicuous
and legible type in contrast by typography,
layout, or color with other printed matter
on such container.
"(d) REQUIREMENTS.?Each statement re-
quired by subsection (a) shall?
"(1) be randomly displayed by a manufac-
turer, packager, or importer of an alcoholic
beverage in each calendar year in as equal a
number of times as IS possible on each
brand of the beverage; and
"(2) be randomly distributed in all parts of
the United States in which such brand- is
marketed.
"(e) BUREAU OF ALCOHOL TOBACCO AND
FIREARMS. ?The Bureau of Alcohol Tobacco
and Firearms shall?
"(1) have the Power to?
"(A) ensure the enforcement of the provi-
sions of this section; and
"(B) issue regulations to carry out this
section; and
"(2) consult and coordinate the health
awareness efforts of the labeling require-
ments of this section with the Secretary of
Health and Human Services.
"(ft Viotarroars.?Any person who violates
the provisions of this section shall be guilty
of a misdemeanor and shall on_conviction
thereof be subject to a -fine of not more
than $10,000.
"(g) Jorusoicrion.?The several district
courts of the United- States are invested
with jurisdiction, for cause shown, to pre-
vent and restrain violations of this section
upon the application of the Attorney Gen-
eral of the United States acting through the
several United States attorneys in their sev-
eral districts.
"(h) Exempriorts.?Alcoholic beverages
manufactured, imported, distributed, sold,
shipped, packaged, or delivered for export
from the United States, or for delivery to a
vessel or aircraft, as supplies, for consump-
tion beyond the jurisdiction of the internal
revenue laws of the United States shall be
exempt from the requirements of this sec-
tion, but such exemptions shall not apply to
alcoholic beverages manufactured, import-
ed, distributed, sold, shipped, or packaged or
delivered for sale, distribution, or shipment
to members or units of the Armed Forces of
the United States located outside of the
United-States.
"(i) LIABILITY.?Nothing in this section
shall be construed to relieve any person
from any liability under Federal or State
law to any other person.".
(c) The amendment made by this section
shall become effective 6 months after the-
date of its enactment.
Mr. THURMOND. Mr. President, I
just listed a few of the organizations
that support -the use of warning labels
on alcoholic beverages. I did not list
all of diem.
Other organizations that favor warn-
ing labels an alcoholic beverages are
the American Academy of Pediatrics;
the American Medical Student Asso-
ciation; the American Youth Works
Center; the American College of Pre-
ventive Medicine; the Consumer Fed-
eration of America; Children's Foun-
dation; the American Health and Tem-
perance Society; Consumer Affairs
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S 1650 CONGRESSIONAL RECORD ? SENATE
Committee of Americans for Demo-
cratic Action; and the American Asso-
ciation of Health Education.
Those, I believe, are in addition to
the ones I mentioned a few moments
ago.
Mr. President, I wish to read a few
letters to show the solid backing for
this amendment.
I believe the distinguished manager
of this bill on the floor was one of
those who backed this amendment. I
want to thank him, and I hope he will
back it again.
Mr. President, here is a letter to me:
On behalf of the 160,000 members of the
Association for Retarded Citizens ?of the
United States, I wish to commend you and
the other Senate co-sponsors for your intro-
duction of legislation to mandate health
and safety warning labels on all alcoholic
beverages. Our members, the majority of
whom are parents of persons with mental
retardation, have been seeking such legisla-
tion for some time. As you are keenly aware,
fetal alcohol syndrome is a leading and pre-
ventable cause of mental retardation.
We are particularly pleased that your pro-
posed bill will require one of the warning
labels to be affixed to beer, wine and dis-
tilled spirits containers to state that con-
sumption of alochol during pregnancy can
cause mental retardation. Such a label, pro-
viding high exposure of this problem to the
general public, is expected to be extremely
helpful in preventing mental retardation
caused by fetal alcohol syndrome.
The ARC strongly endorses this legisla-
tion and urges its prompt enactment.
Sincerely yours,
V.K. "WARREN" TASHJIAN,
President,
Mr. President, if this bill is adopted,
if it did nothing more than prevent
mental retardation, it would be thor-
oughly worthwhile. That is what this
organization, the Association of Re-
tarded Citizens, feels about this bill.
Now, Mr. President, I want to read a
letter from the National Parents? and
Teachers Association, dated February
1, 1988.
DEAR SENATOR THURMOND: The National
PTA would like to extend our support to
your efforts in enacting legislation that
would require warning labels on alcoholic
beverages.
As you know, alcohol is the most widely
used and abused drug in our society. Yet, a
1983 National Weekly Reader Survey on
Drugs and Alcohol noted that only 42 per-
cent of fourth graders realized that alcohol
was a drug compared to 81 percent who con-
sidered marijuana a drug, and the percent-
age of students recognizing alcohol as a
drug decreased with age, to 28 percent, in
the upper grades.
The public is not sufficiently aware of the
danger of alcohol abuse or the short and
long term effects of alcohol on their physi-
cal and mental health. Alcohol contributes
to several fatal diseases, including cardiac
myopathy, hypertension and stroke, pneu-
monia, several types of cancer and liver dis-
ease. As a poison, alcohol is second only to
carbon monoxide as the substance directly
responsible for the most unintentional poi-
soning deaths in the U.S. In addition, alco-
hol-related highway deaths are the number
one killer of 15-24 year olds. In 1985, 52 per-
cent of the 43,800 highway fatalities were
alcohol related.
Mr. President, I want to pause to call
attention to that. "In 1985, 52 percent
of the 43,800 highway fatalities were
alcohol related."
Health warning labels will serve impor-
tant informational and educational func-
tions. Labeling of all alcoholic beverages
will highlight specific information about al-
cohol use and health effects. The glamoriza-
tion and normalization of drinking promot-
ed yearly, in a 1.3 billion advertising cam-
paign, will be countered through warning
labels on all alcoholic beverages. And final-
ly, warning labels with reinforced school-
based alcohol prevention and education pro-
grams.
We 'applaud your tireless effort to help
educate the public to alcohol related prob-
lems. We hope that this year the health and
safety of our nation's citizens takes priority
over special interest concerns, and that leg-
islation mandating health warning labels on
alcoholic beverage containers be enacted.
Sincerely,
MILLIE WATERMAN,
Vice-President for
Legislative Activity.
Mr. President, I have a letter here
from the National Council on Alcohol-
ism, addressed to me, dated January
27, 1988.
DEAR SENATOR THURMOND: On behalf of
the National Council on Alcoholism, I would
like to express my strong endorsement of
your proposed legislation mandating health
and safety warning labels on all alcoholic
beverages.
If enacted, this legislation will provide al-
cohol consumers with concrete information
about the association of alcohol consump-
tion with health and safety risks ranging
from alcohol-related birth defects and alco-
hol's contribution to liver disease, hyperten-
sion and cancer; to the impairment of driv-
ing ability and the danger of combining al-
cohol with other drugs. The label which
identifies alcohol as a drug with addictive
potential will help to mitigate against the
alarming equation of alcohol with soft
drinks and juices so frequently featured in
alcohol advertising in both broadcast and
print media.
Education has frequently been cited as a
key ingredient in any comprehensive strate-
gy to address alcoholism and alcohol-related
problems in the nation. Clear and simple
labels placed on every container of beverage
alcohol every day of the year will keep edu-
cational messages about alcohol's effects
constantly before the public eye. Public
service announcements on radio and televi-
sion and educational campaigns to combat
alcoholism and related problems are of ne-
cessity, time-limited. The labeling of alco-
holic beverage containers will institutional-
ize important public health information and
cannot help but greatly enhance the pub-
lic's knowledge regarding health and safety
risks attendant on alcohol use.
In a democratic society, consumers have a
right to know about the risks associated
with the consumption of any given legal
product. This information is critical if indi-
viduals are to make informed decisions
about their use or non-use of alcohol. Alco-
holic beverages have long been held harm-
less from a number of consumer informa-
tion strategies. In fact, alcohol advertising
which glamorizes drinking continues to be
the major and most powerful source of in-
formation Americans receive about alcohol.
Your proposed legislation makes a major
contribution to alcohol education for Ameri-
can consumers.
NCA has been on record in support of
health and safety warning labels on alcohol-
March I, 1988
ic beverages since 1982. In our view, the uti-
lization of this simple, cost-effective and
well precedented educational vehicle is long
overdue. We have appreciated your leader-
ship on this important alcohol policy meas-
ure throughout, the last decade. We pledge
our unqualified support for all your efforts
to make health and safety warning labels on
all alcoholic beverages federal public policy
during the second session of the 100th Con-
gress.
Please don't hesitate to call on the Nation-
al Council on alcoholism and its 200 local
and state affiliates throughout the nation
for our assistance in helping you to realize
this goal.
Sincerely,
THOMAS V. SEESSEL,
President.
Mr. President, I have letters and I
will take more of them up later. As I
say, I have letters from the American
Academy of Pediatrics and various
other organizations, which all endorse
these labels.
What harm can there be to merely
put on a container a label of the kind
that I described, that warns pregnant
women that it is dangerous to take al-
cohol because it would damage the
babies and make many of them suffer
from mental retardation? What is the
harm in putting on a warning? People
do not have to follow it, but why not
warn the public? Why inform the
public of the dangers?
This is for the health of the Nation.
I am very pleased that not only the
majority manager of this bill support-
ed this bill but also the minority man-
ager, my distinguished friend, the
ranking member of the committee,
favors warning labels.
Now, some people say, "I favor them
but I do not favor them on this bill."
That is no excuse. You may never
have another opportunity if you do
not put it on this bill. We ought to be
putting it on many bills in this Senate.
If you favor warning labels, now is the
time to show your colors. Now is the
time to let the public know you believe
in warning labels. It is for the good of
the public. That is the only reason I
offer this amendment. I am interested
in trying to help warn mothers not to
drink alcohol while they are pregnant,
to warn of the dangers of alcohol caus-
ing automobile wrecks, causing homi-
cides, causing suicides.
Mr. President, this is a very impor-
tant amendment, and I hope the man-
agers of this bill will accept it. They
both have favored labeling heretofore,
and I hope they will accept it on this
bill and not say put it off to another
time or bring it up separately.
Now is the time to stand by this bill
if you believe in it. Now is the time to
show your colors. Now is the time to
let the people of this Nation know
that it is detrimental to pregnant
women and detrimental in the other
ways I have said. All this bill does is
require a label. It does not prohibit
anybody from doing anything. It
merely warns the public. I hope the
managers will accept this amendment,
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March '1 1988 CONGRESSIONAL RECORD ? SENATE -
and I win be pleased to hear from
them right now.
(Mr. ROCKEFELLER assumed the
chair.)
Mr. HATCH. Mr. President, it is in-
triguing to me that my distinguished
colleague, who really has done a great
job on warning labels as a member of
the Labor and Human Resources Com-
mittee, would bring this matter up at
this time on this bill, especially since
tomorrow we have a number of health
bills coming up in the Labor and
Human Resources Committee, among
which is the alcohol, drug abuse, and
mental health bill, a perfect bill, a per-
fect vehicle, one where this amend-
ment would be germane and one I
would support without question, as I
have in the past. The appropriate
thing for him to do would be to bring
it up tomorrow and put it on the alco-
hol, drug abuse, and mental health
bill. Frankly, we might support it.
But there is Another aspect of this,
too, which I would like to call to my
friend's attention. That is that there is
not the same consensus for this par-
ticular bill as there might be if we sat
down and really worked to get a con-
sensus on warning labels which in-
clude warnings about the abuse of al-
cohol, because these labels do not do
that. I think we could build a consen-
sus with which we would pass a bill
that would once and for all warn ev,
erybody in America about the danger-
ous use and the abuse of alcohol.
Unfortunately, I do not believe the
bill the Senator is using as an amend-
ment on the polygraph bill, a totally
nongermane amendment, I might add,
that really has no relationship to what
we are trying to do with polygraph,
would pass anyway. But I think we can ?
work the language out so that we can
pass it and do everybody in America a
great deal of good.
Since 1977, I have supported Senator
THURMOND'S legislative efforts to re-
quire alcohol warning labels. I think
Senator THURMOND has been a cham-
pion in educating Americans about the
potential risks of alcohol abuse. How-
ever, I would like to suggest to my
dear friend and colleague from South
Carolina that he should consider of-
fering this legislation as an amend-
ment on the alcohol, drug abuse and
mental health bill tomorrow and that
would give it much more support than
he will get here today, at least in my
opinion.
Furthermore, I think there is an al-
cohol warning labeling bill that could
be developed and passed by Congress.
I do not think this one will be passed.
There are many people, who are sin-
cerely devoted to coming up with ap-
propriate alcohol warning labels in the
form of legislation, who perhaps
would not vote for this bill. However,
what Senator THURMOND has put
before us is an important beginning. It
can be improved.
For example, we should model this
legislation after the recommendations
by the Department of Health and
Human Services. During last year's
antidrug absue legislative effort .we
asked the Department. of Health and -
Human Services to assess the potential
educational benefits cff alcohol- warn-
ing label legislation.
In summary, they found, one, health
- warning labels- can have all' impact
upon the consumer if they understand
the labels and understand the risks
the label is warning about. Consumers
tend to ignore label information which
they feel is not useful to them or is
not important to their goals;
Second. Health warning labels can
have an impact upon the consumer if
the labels are designed. effectively.
Third. Health warning labels may
not have an effect on consumer behav-
ior.
Fourth. Warning label legislation
should be done after a public educa-
tion effort designed to increase con-
sumer knowledge of ' the health haz-
ards associated with alcohol consump-
tion.
That fourth one really makes a very
good argument against bringing it up
as a nongermane amendment to a bill
that has no relationship to it.
With those goals in mind', I believe
we can sit down with the distinguished
Senator from South Carolina?and I
am dedicated to doing that; I believe
in warning labels as much as he does?
and fashion a warning label- bill ac-
companied by an educational cam-
paign that will educate consumers
about the health hazards of alcohol
abuse.
I believe we should force the indus-
try to work with us on the. bill, and I
believe we can get help .from the in-
dustry. They are concerned about the
abuse of alcohol, and some :of them
have acted very responsibly as a result
of the hearings that I held when I was
chairman of the Labor and Human
Resources Committee, and as a result
of some of the great work that-the dis-
tinguished Senator from South Caroli-
na has done, they are ready to do so.
They have extended their hands
toward us to talk. So let us do it. Let
us not do it this way.
The managing- editor of the Wine
Spectator recently wrote, "We should
adopt a forward-looking strategy that
recognizes legitimate health concerns
In: America-and proposes creative solu-
tions to the warning label legislative
effort which could put. wine producers
in a cosmic. light and disarm the crit-
ics."
People are interested in discussing
warning label legislation, so let us
bring them all to the .table with other
interested groups including' the Na-
tional Council on Alcoholism, the Na-
tional PTA,. and the American Medical
Association.. Let, us make them work
with us and get an alcohol warning
label bill signed into law. I do not
think this is the vehicle, nor is this the
amendment which will-work.
Finally, I do not want to prolong
this because I think everybody in this
body and many people throughout the
S1651
country know the fights that I have ? -
led to put warning labels on Alcoholic
beverages and on tobacco substances
as well. We have the tobacco labels in
effect. They are working. They are
doing some good. I led the fight for
those, among others. I will lead the
fight, along with the distinguished.
Senator from South Carolina, on alco-
hol warning legislation as well. But
this is not the way to do it. I am sug-
gesting to you right now, Mr. Presi-
dent, that this is a vote on procedure,
not substance.,
Now, I would be hesitant about ta-
bling a germane amendment, if this
were a germane amendment, because
there should be debate on this bill, but
this issue is not germane. This is not
the vehicle for those_ of us who really
want to solve this problem. I do not
think, the way it is written, it is passa-
ble either.
So I have to conclude that, is the
only reason for bringing it up at this
time. You will have the perfect vehicle
tomorrow. You have a committee that
Is acceptable to listening to alcohol
warning legislation. I think they
would allow it to be put in good form
on the alcohol, drug abuse, and mental
health bill, if not in committee cer-
tainly on the floor, and that bill is
going to come. to the floor without
much hesitation.. I think that is the
appropriate way to -do it.
Everybody knows I do. not want to
vote against alcohol warning legisla-
tion. Everybody knows that. Every-
body knows my position on it. They
know that I do not drink, and they
know that I am concerned- about the
youth of this country. They know I
am concerned about people .who -are'-
uneducated in these areas. They know
I am concerned about the abuse of al-
cohol. They know that I know that it
Is one of the biggest drug abuse as-
pects in our country today.
Frankly, this is not the bill to put it
on, and we are going to have to move
to. table. Before we do, I know there
are-others who would like to speak on
this, and certainly we want to give
them, adequate time to do so also.
I want to tell my dear colleague how
much I respect him. There is nobody
in this body for whom I have greater
or more deep respect. than Senator
THURMOND. I hope he will withdraw
this amendment, and do it tomorrow
with my support in committee, do' it
properly. on the bill where it will go
through the Congress and be made
Into- the law; work with us to get lan-
guage that I know will be acceptable
to everybody.
Mr. THURMOND. Mr. President,
will the Senator yield?
Mr. HATCH. I am happy to yield.
Mr. THURMOND. Mr. President,
that sounds good.
Mr. THURMOND. But it is not prac-
tical.
Mr. HATCH. It is practical.
Mr. THURMOND. Here is -why. The
bill, the Alcohol, Drug Abuse and
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S1652 CONGRESSIONAL RECORD ? SENATE
Mental Health Bill, is similar to the
bill last year that we put it on; similar
bill, brought it to the Senate and we
never could get it up in the Senate. Is
the Senator asking to go through that
same procedure when we could not get
it up? The bill is up. We will have a
chance to vote on it. Last year we
brought up this bill and we never did
get it up. So it amounted to nothing.
Mr. HATCH. Let me answer the Sen-
ator. That is true because it is this lan-
guage, and there is not a consensus for
this language. I will vote for this lan-
guage in committee on the ADAMH
bill which both the distinguished Sen-
ator from Massachusetts and I did last
year. But we know that this language
is not acceptable.
Mr. THURMOND. -Offer amend-
ments to amend it.
Mr. HATCH. If I could just answer
the distinguished Senator, I believe. If
we will sit down together we can come
up with consensus language that the
Senator from South Carolina can lead
the fight for that will be very accepta-
ble to him, that would not only be
added to the ADAMH bill but would
pass the whole Congress. I believe we
could do it, if it is right so it is appro-
priate.
Mr. THURMOND. I suggest we go
on with the bill here. I will sit down
with the Senator tonight and work out
these, if these warnings ?are not all
right. Then we can offer them tomor-
row.
Mr. HATCH. Let us work it out. But
let us not offer it on this bill.
Mr. THURMOND. I know the Sena-
tor does not want them on this bill. He
does not want this bill touched.
Mr. HATCH. That is right.
Mr. THURMOND. How are we ever
going to get these warnings put on if
we do not put them on the bill here in
the Senate? We tried it in committee,
and the Senator never could get his
bill up. All last year we tried to get
this bill up and had warnings in it. Al-
cohol interests were for it, and we
were not able to get it up.
Mr. HATCH. If I can answer the dis-
tinguished Senator, the reason we
could not, one of the principal reasons
was because of this particular lan-
guage. I happen to support this lan-
guage in committee. I did support it.
As a matter of fact, I am for this lan-
guage. But I think it can be made
better, and I think we can get it so we
have a consensus, and even the indus-
try would probably consent to it. If
they will not, at least they know they
are going to take a beating on the
floor of both Houses of Congress.
I think this is the way to do it. Let
us do it through the appropriate vehi-
cles. Let us not do it on something like
that which has no relationship to this.
Mr. THURMOND. Senator, you
know amendments are offered all the
time here that have no relation to
other parts of the bill. It is the only
way to get it through. In 1984 we
passed the finest omnibus crime bill in
the history of this Nation. How did we
do it? We had to amend appropria-
tions bill that came from the House.
We sent this omnibus bill to the House
and they never would act on it. We
would not have passed the omnibus
crime bill embodying so many good
provisions if we had not amended the
approporiation bill and put it on that.
That is the only way we get it on
there.
Mr. HATCH. I was part of that proc-
ess.
Mr. THURMOND. I commend the
Senator for that. I want to cooperate.
I want to commend the Senator for
this.
Mr. HATCH. I am always happy to
be commended by the distinguished
Senator, from South Carolina. The
problem with this is we know that this
amendment on this bill will not help
this bill to pass. We also know it did
not help the ADAMH bill last year.
We also know that if we can sit down,
work on language, come up with lan-
guage to do just as much as this lan-
guage, maybe even more as far as
warning the American people, and
Americans who partake of alcoholic
beverages, and given appropriate
warnings, that will pass. That is a
worthwhile endeavor.
Under those circumstances I would
have no compunction about moving to
table the Senator's amendment. Under
those circumstances, with the added
assurance that I am going to help him
in every way I can to get appropriate
warning label language passed, I will
but not son this bill because this bill is
a different bill. It has no relationship
to that. I agree. We can add nonger-
mane amendments to any bill if we
want to. But I think I have made a
pretty good case as to why I have to in
particular move to table this particu-
lar bill. I will withhold that.
Mr. THURMOND. Will the Senator
yield?
Mr. HATCH. Yes.
Mr. THURMOND. I want to remind
the Senator that last year when we
brought this bill with the labels in to
the floor we never could get them to
take up that bill until we took the
labels out. They made us take the
labels out. the Senator had the same
thing again. This bill is up now. If we
include in here, it will go to confer-
ence, it will be in conference. At least
we can work it out.
The distinguished Senator from
Massachusetts supports this bill, and
supports these amendments. I com-
mend him. 'What is the objection to
putting them on this bill here now?
Let us go to conference and see if we
cannot work something out. I do not
believe we are going to get alcohol
warning labels on a bill that just pro-
vides for that alone. You have to hook
it onto something else, and the alcohol
interests will fight it to a finish. They
did it last year.
And we have to put it on something
else. This is a good bill 'to put it on.
Mr. HATCH. I will make another
offer to the distinguished Senator.
March 1, 1988
This is not a good bill to put it on. As
much as I am for alcohol warning
labels legislation, I am personally not
going to let it go on this bill if I can
help it. If the Senator wins, that will
be fine on the vote. But let me say
this. Should the Senator not win on
this vote, if he persists on continuing,
then I will do everything in my power
to help him add appropriate legisla-
tion. We will work with him to change
the language so it can be acceptable,
so it can go through both Houses, and
so it will pass. But I will do everything
in my power as I think I am known to ?
-do to help him add it to any other ap-
propriate bill that it could be added to.
Let me just add this. I think this is
imnortant. I believe that the Senator
is not adequate in his statement that
the bill came up last, year, and they
had to script language out. The bill
did not come up last year. We did not
script the language out. The reason it
did not come up was because the lan-
guage was in and we could not pass it.
They were not going to waste the time
on the floor to pass it, to try, when
they knew there would be objections
to this language. I think that is an ac-
curate statement.
Mr. THURMOND. My recollection is
we had to take out the warning labels
to pass the bill.
Mr. HATCH. That is not true.
Mr. THURMOND. If I am in error I
will be glad to be corrected.
Mr. HATCH. My understanding is
that is not correct. Whether it is or is
not, the Senator made by case. That is
the warning labels as drafted were the
reason the bill did not pass.
What I am offering is this, and I
would like my colleague to consider
withdrawing this amendment on this
basis or otherwise I am forced to move
to table. I am offering to do every-
thing in my power to sit down with
him, with my -staff, his staff and
others, and come up with legislation
that I think will pass this year on the
floor of both Houses of Congress, or at
least we will have a much better
chance to pass it than that.
I think it will pass. If the Senator
will work with me on that, we will
both be proud at the end of the year
to have very effective alcohol. warning
legislation. If, for instance, the Sena-
tor persists with this amendment, and
we have to move to table, then maybe
the tabling will be granted. If it is
granted, then the Senator, I think, has
lost on his language.
I would prefer to work it out. I think
we can work it out. We can work on
something that is more germane as a
bill, that is more germane than this
particular bill. But that is all I have to
say about it. If the Senator persists in
presenting this amendment, we are
going to have to move to table it. It is
that simple.
Mr. THURMOND. I just want to
say, Mr. President, for year after year
these groups have been fighting to
help the young people, and older
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CONGRESSIONAL RECORD ? SENATE S 1653
people, too, defend against the dan-
gers of alcohol. The National Council
on Alcoholism has worked strenuously
for years. The Center for Science in
the public interest has worked for the
public good. The American Medical
Society on Alcoholism and other drug
dependency groups have worked for
years. The American Academy of Pedi-
atricians; what is pediatrics? A doctor
of pediatrics is one who treats little
children. These doctors nationwide
treat little children, and are advocat-
ing these warning labels. They put
people on notice. It does not bind
people. It puts them on notice that it
is dangerous.
The American Medical Association?
that is the doctors of America?favor
this bill. They favor this amendment.
For years they favored it. Are we just
going to continue to ignore it because
the alcohol interests come down and
raises some points about it, puts it off,
hires high-powered lobbyists, and
makes contacts here that cause people
to go against it?
The Parent-Teachers Association,
what kind of organization is this?
What better people do we have advice
us than the American Medical Associa-
tion; Academy of Pediatrics; the
Parent-Teachers Association; Ameri-
can Council on Alcohol Problems;
American Medical Student Associa-
tion; American Youth Works Center;
American College of Preventive Medi-
cine. Those are not two-by-four orga-
nizations. They are prominent organi-
zations. They have the respect of the
American people, and yet we have not
taken action on this because alcohol
interests have opposed it, opposed it,
opposed it year after year.
Consumer Federation of America;
The Children's Foundation; The
American Association for Health Edu-
cation; the National Education Asso-
ciation; NEA. That is a teacher's orga-
nization. They favor this amendment.
Every good organization in America
favors it that I know of. I do not know
of a good organization in America that
opposes this amendment.
Why do we want to keep opposing it?
The people cannot get this because
they cannot get a vote on it.
March of Dimes; Association of Half-
way House Alcoholism Programs. That
is where people have gotten in trouble
and then instead of putting them on
probation, immediately they send
them to a halfway house.
The law enforcement people know
what trouble we have had with alco-
hol. All we want to do is to inform the
American public. That is all we want
to do, inform the American public.
People do not have to follow it. But we
have a duty, I think, to inform the
public of these dangers.
The American Medical Association
says we do. the Parent-Teachers Asso-
ciation says we do, and all these good
organizations. And why not inform the
public about these things?
Mr. HATCH and Mr. DANFORTH
addressed the Chair.
The PRESIDING OFFICER. The
Senator from Utah has the floor.
Mr. HATCH. If I can respond, much
of what the Senator says is true, most
of it, and I support him.
Mr. THURMOND. If anything I said
is not true, call it to my attention. If it
is in error, I will correct it.
Mr. HATCH. I think the distin-
guished Senator is an acknowledged
leader in this area, and I am one of
the first to acknowledge it, and I want
to express to anybody who is watching
or who cares that I appreciate it. As a
matter of fact, he does not have a
better advocate than I. All I am saying
is this: There is a way of doing this,
and there is not a way. The way he is
doing it means it will never pass. Of
course, that also is one reason he has
brought it up on this bill, which he op-
poses.
If he will sit down and work it out
with me and with other interested
people, we can come up with warning
langauge that is probably superior to
this language that would be consensus
language, and then we could start a
public education program that would
cause it to pass. I have no doubt about
that. I think it is an idea which has its
time now.
Frankly, I truly admire my col-
league. There is nobody who admires
him more than I do. I think I have
shown that through the years, and I
will stand with him and I will help,
and I will do everything I possibly can
to back him.
On this bill, I cannot back him. He
know a that. It is a little embarrassing
to me to have to move to table his
amendment. I hope he will not put me
to that, but if he does, I am going to
have to do it because I am committed
to this legislation and, frankly, I am
committed to alcohol warning lan-
guage that will go through the Con-
gress, not just something that makes a
point now. That is why I would move
to table. I think the offer I have made
is more than a good offer. He knows I
live up to the things I say here on the
floor to the best of my ability to do so.
So all I can say is that I agree with
him except on this bill, and except
with this lange. I think the language
can be improved, and I think it can be
made acceptable even to some who
probably oppose it today, and if that is
so, then we will really pass something.
It would be landmark legislation that
everybody, except perhaps certain al-
cohol beverage manufacturers, is going
to be proud of.
Let me yield the floor to the distin-
guished Senator?
Mr. THURMOND. I am willing to do
this. For year after year now, we have
played around with this thing and we
get no results.
Mr. HATCH. -Right.
Mr. THURMOND. Perhaps we can
do this, if the Senator is willing on
that bill tomorrow to help to work
these labels out and get them on that
bill tomorrow that we bring out, and if
the chairman of the dommittee is will-
ing to work with us on that to get
these labels in shape.
Both Senators have failed to do that
with the very labels I have here. But if
there is any little amendment we can
submit to make them effective and
bring them out in that bill tomorrow, I
am willing to do that with the under-
standing that if we do not get action
on that bill with labels in it when it
comes up in the Senate, then I am
going to be free to offer it in some
other bill in the future.
Mr. HATCH. That is right. Let me
just say this to the distinguished Sena-
tor. I will do everything in my power
to work with him to come up with lan-
guage that will work by tomorrow. I
do not know if we will be able to do so,
because we have to bring together a
whole bunch of people and do it in
such a way that we can conduct a
public campaign and people can under-
stand it. Assuming that we cannot
arrive at langauge tomorrow, which
does not give us much time, but we
will make an effort, then I will help
the Senator when it comes to the
floor, because the bill will come to the
floor, and I think we can resolve it.
Mr. THURMOND. I want it under-
stood that if we bring something out
here and then if it is stopped, and we
cannot get the bill up, I will be free to
take it up on any other piece of legis-
lation in the future.
Mr. HATCH. I am with the Senator,
and I will probably support the Sena-
tor at that time.
Mr. DANFORTH. Mr. President, I
wonder if I may just interject myself
briefly in this conversation because
I--
Mr. THURMOND. I will be glad to
yield for a minute.
The PRESIDING OFFICER. The
Senator from Utah has the floor.
Mr. THURMOND. I thought I had
the floor. I never gave it up.
The PRESIDING OFFICER. The
Senator from Utah has the floor and
yielded to the Senator from South
Carolina.
Mr.' HATCH. I yield to the Senator
from Missouri such time as he desires.
Mr. DANFORTH. I would like to
make this point before people start
making deals about what is going to
come up and who will bring up legisla-
tion on an hour's notice or 24 hours'
notice.
This bill was referred to the Senate
Commerce Committee. It was intro-
duced last month. It was referred to
the Senate Commerce Committee. No
hearing has been held on it.
Mr. THURMOND. Why?
Mr. DANFORTH. No hearing has
been requested by the distinguished
authors.
Mr. THURMOND. I request it now.
How soon can the committee hold the
hearing?
Mr. DANFORTH. I am not the
chairman of the committee.
Mr. THURMOND. The Senator is
the ranking member.
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S 1654
CONGRESSIONAL RECORD ? SENATE March 1, 1.988
Mr. HATCH. Will the distinguished
Senator from Missouri help the distin-
guished Senator from South Carolina
get a hearing?
Mr. DANFORTH. I will be happy to
talk to the other Senator from South
Carolina, the chairman of the Com-
merce Committee.
I would just like to point this out
about this legislation. It is wonderful
to stand on the floor of the Senate
and pick out various industries and
start attacking them for One reason or
another, but this is clearly very far-
reaching legislation. This legislation
provides that on containers for alco-
holic beverages?what is a container?
A glass? A paper cup at the ball park?
On containers of alcoholic beverages,
one of five warning labels has to
appear.
One of the warning labels says: "The
consumption of this product which
contains alcohol can increase the risk
of developing hypertension, liver dis-
ease, and cancer."
Mr. THURMOND. That is what the
doctors say.
Mr. DANFORTH. That is a very sig-
nificant thing to put on somebody's
cup of beer at the ballpark, without
any hearing whatever in the Congress
of the United States. We are assured
that?
Mr. HATCH. If the Senator will
yield on that point?
Mr. DANFORTH. Just a second. We
are assured that liver disease and
cancer, and so forth, are caused by
this. Also, I point out that in its
present form the term "sale and distri-
bution" in the bill includes sampling
or any other distribution not for sale.
So presumably_ in this bill in its
present form if you had a guest over
to your house for dinner and served
that person a glass of wine which you
gave away, you would have to have a
warning on the wineglass.
It would seem to me, if I read this
correctly, and I have not had a chance
to read it yet?we have not had a hear-
ing on it?that this kind of blockbuster
legislation at least deserves to go
through the reasonable legislative-
process. My hope is that the Senator
from South Carolina will withdraw his
amendment.
I do not want to join the chorus of
approval for a bill that has never had
a hearing, that was only introduced, as
far as the Commerce Committee is
concerned, a month ago and that pro-
vides if you have a guest over to your
home and give him a glass of wine, you
have to have a warning on the wine-
glass.
I think that is an extreme piece of
legislation, and it deserves a little bit
of attention in the regular course of
legislation.
Mr. HATCH. I will add this: I think
the Senator makes a good point. Actu-
ally Senator THURMOND'S amendment,
when it came up in committee, was
limited to distilled spirits, as I under-
stand it, and one of the Senators
added "beer and wine" onto the
amendment. Everybody voted for it.
Of course, at that point everybody
knew this amendment was dead be-
cause the distinguished Senator from
Missouri points out some of the diffi-
culties that come up, and that is why
It never passed. That is why I am
saying we are going to have to work
out the language because, like all
things around here, if you want to do
good, you are going to have to get
some sort of consensus.
Mr. THURMOND. Mr. President,
will the Senator yield?
Mr. HATCH. I am delighted to yield.
Mr. THURMOND. I wanted to say,
as to the sale or distribution, that is
not just a glass of wine in your home,
or something like that. It is the sale or
distribution of it.
Mr. HATCH. I understand.
Mr. THURMOND. I understand my
good friend from Missouri is a friend
of Colonel Bush with whom I was in
World War II and hold in high regard.
But after all, we have to protect the
public, Senator. And you are a man of
the cloth, too, and I am sure that you
would like to protect the public.
The ACTING PRESIDENT pro tern-
pore. The comments should be to the
Presiding Officer.
Mr. HATCH. May I add one other
thing?I think we chatted enough?I
will commit to the Senator from
South Carolina if he will withdraw the
amendment, and I think it is the ap-
propriate thing to do, we will work out
language that will be acceptable. I
think that would have to include the
language that will be passable and
that will bring a consensus about, and
we are going to have to also work, and
I think a number of Senators, possibly
including our friends from Missouri,
will work to develop a public consen-
sus for appropriate language.
I think it is an appropriate thing for
the Senator to withdraw the amend-
ment at this time with the assurance
from me, and I add one other thing.
This amendment can be drafted so
that it is subject to the Labor and
Human Resources Committee jurisdic-
tion.
The way it is drafted, it had to be
sent to the Commerce Committee. I
agree that there have not been any
hearings in the Commerce Committee.
But to correct a misconception,
there have been in the Labor and
Human Resources Committee. The
Senator is right in everything that he
has brought out with regard to our
hearing in the Labor and Human Re-
sources Committee. We did cover this
matter.
I will ask the Senator to withdraw
the amendment with those assurances.
Mr. THURMOND. With those assur-
ances that they have given and with
the further understanding if we do not
get this bill up and pass it later, I will
be free to offer it to the legislation in
the future. I want that understood. I
do not want anybody to say I with-
drew it. I intend to offer it again.
The ACTING PRESIDENT pro tem-
pore. The Senator from Massachu-
setts.
Mr. KENNEDY. Mr. President, I
want to express my views on this
amendment and only take a few mo-
ments of the Senate's time and, if I
could, invite the attention of the Sena-
tor from South Carolina so he will not
misunderstand or misinterpret my po-
sition on this issue just as a Senator.
I had supported the labeling concept
that had been basically included in the
substance of the amendment of the
?Senator from South Carolina. It was
altered and changed to include "beer
and wine" in the committee.
The fact remains that there was at
least a broad understanding, having
spent time on the issue, that this
would sound the death knell, because
of various political factors, for any
such labeling process to move forward.
That particular measure I still sup-
port. But I want to make it very clear
that, as the Senator from Missouri has
pointed out, this legislation which ba-
sically incorporates the amendment of
the Senator from South Carolina has
been referred to the Commerce Com-
mittee. Even should language be
worked out that could be agreeable
and acceptable to the Labor and
Human Resources Committee and
that was to be passed out on one of
the most important health bills that
we are facing, the NIAAA bill, that re-
lates to drug abuse and alcoholism, an
absolutely essential piece of legislation
if we are going to deal with one of the
great scourges of our country, on a
very limited budget, I might add,
about a tenth of what the Surgeon
General had actually recommended in
his recent report, it is absolutely es-
sential that we pass it.
I want to make it clear that I will
not risk that legislation moving for-
ward with an amendment which is not
related, to our jurisdiction, when any
single Member of this body can raise
as a point of order and bring down
that particular piece of legislation
under article XV. I am not going to be
a part of it. I will not be a part of it. I
want to make that very clear. I will do
the best I possibly can in trying to in-
fluence the members of that commit-
tee who have supported it on the basis
of substance that if it is offered in
that committee on that measure I will
do the best I can to defeat it. If it is of-
fered out here as a freestanding
amendment and if it is not going to
interfere with the basic acceptance of
the legislation. I will support it. But I
am going to make that call. I want to
make that call.
I think that those of us who have
been involved in this labeling issue for
some period of time would have to be
cautious about giving assurances to
the membership as to whether those
who have been involved on the Labor
and Human Resources Committee
would support such an amendment.
Others can reach other conclusions.
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March 1, 1988
CONGRESSIONAL RECORD ? SENATE S 1655
The Senator from South Carolina
has opposed this bill. I would ask the
Senator from South Carolina if this
amendment were accepted would he
support the underlying bill?
Mr. THURMOND. I would have to
think about it.
Mr. KENNEDY. There is a clear
enough indication, Mr. President. I do
not question the motives of the Sena-
tor from South Carolina? but he is op-
posed to the legislation. This is not
relevant to the substance of the legis-
lation.
What we are talking about now is a
limited area, dealing in these issues
with the whole question of the abuse
of individual rights under the prolif-
eration of polygraph testing.
It is a question of importance in
terms of public policy and in terms of
health policy, but it is not relevant to
this particular issue.
I will certainly work with the Sena-
tor from South Carolina on this meas-
ure and work with the members of the
Commerce Committee to see if some
progress can be made.
But I, for one, do not want, at least
the members of our committee, the
Labor and Human Resources Commit-
tee, which basically has reported out
this particular measure and hopefully
will report out the other measures to-
morrow, to misinterpret what at least
my position would be. They will make
their own judgment and make their
own call. But this is how I view this
particular amendment, and I would
support the tabling resolution of the
Senator from Utah.
The ACTING PRESIDENT pro tem-
pore. The Chair will inquire of the
Senator from South Carolina if he
wishes his amendment to be with-
drawn. It was not entirely clear to the
Chair.
Mr. THURMOND. I would like to
hear what the ranking member has to
say on this.
Mr. HATCH. Let me say this: I agree
that if we can work out language over-
night, the amendment would have to
be germane. That is part of working
out the language. I think it can remain
germane. I do not know if we can come
up with the final language by tomor-
row morning.
I have said to the distinguished Sen-
ator from South Carolina that I would
work in good faith to see if we cannot
do that by tomorrow morning's
markup, that we will work very, very
hard to get an amendment in shape
with the appropriate public support
for it that we can add to the bill on
the floor of the Senate or to any other
bill that he would like to add it to
whether or not it is germane. I would
help him, and I think he knows that.
But I do not want it on this bill be-
cause it just is not germane here.
I hope the distinguished Senator will
withdraw the amendment with that
assurance, and he knows I will help
him and I will help him regardless of
what anybody thinks about it.
Mr. THRUMOND. Mr. President,
with that understanding I will with-
draw the amendment at this time.
The ACTING PRESIDENT pro tern-
pore. The amendment is withdrawn.
Mr. THURMOND. I do not want to
give assurances in the future as to
what course it will take if we do not
get something worked out in the com-
mittee.
Mr. HATCH. Mr. President, I sug-
gest the absence of a quorum.
The ACTING PRESIDENT pro tern-
pore. The clerk will call the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
- Mr. KENNEDY. far. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tern-
pore. Without objection, it is so or-
dered.
AMENDMENT NO 1474
(Purpose: To make certain technical
corrections)
Mr. KENNEDY. Mr. President, I
send an amendment to the desk on
behalf of myself and Senator HATCH
and ask for its immediate consider-
ation.
The ACTING PRESIDENT pro tem-
pore. The clerk will report.
- The assistant legislative clerk read
as follows:
The Senator from Massachusetts [Mr.
KENNEDY], for himself and MT. HATCH, pro-
poses an amendment numbered 1474.
Mr. KENNEDY. Mr. President, I ask
unanimous consent that further read-
ing of the amendment be dispensed
with.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so or-
dered.
The amendment is as follows:
On page 19, line 3, strike out "1987" and
insert in lieu thereof "1988".
Beginning on page 22, strike out line 22
and all that follows through page 23, line 3,
and insert in lieu thereof the following new
paragraph:
(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.
On page 35, strike out lines 18 through 23
and insert in lieu thereof the following:
(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.
Mr. KENNEDY. Mr. President, this
is a technical amendment that basical-
ly changes the date of the act from
1987 to 1988.
Mr. HATCH. Mr. President, the
amendment offered by the Senator
from Massachusetts and myself will
correct two apparent technical diffi-
culties in the bill. First, the amend-
ment will delete the language of S.
1904 which concerned potential mone-
tary fines for failing to post notices
concerning the prohibitions called for
in this act.
It was not our intent to create yet
another regulatory burden for employ-
ers. Instead, we wanted to make clear
how serious Congress feels about this
issue. After careful review, we have de-
cided that the Fair Labor Standards
Act already has ample provisions in
this area, and the requirements for
posting of a notice concerning poly-
graph examinations need not be treat-
ed any differently than existing re-
quirements.
The second portion of the amend-
ments makes clear who can have
access to information derived from a
polygraph test. The amendment
makes clear a court, a governmental
agency, an arbitrator or a mediator
may have such information if obtained
pursuant to an order from a court of
competent jurisdiction.
This new language was added to
clarify the status of parties who may
be in arbitration or mediation over
such matters as wrongful discharge or
some other adverse employment
action. In such instances, possession of
the test information, if obtained in the
appropriate manner, may expedite res-
olution of the dispute.
Mr. President, this amendment
should help clarify two technical areas
of the bill, and I hope my colleagues
will approve their adoption.
The ACTING PRESIDENT pro tem-
pore. Is there further debate on the
amendment? If not, the question is on
agreeing to the amendment.
The amendment (No. 1474) was
agreed to.
Mr. HATCH. Mr. President, I move
to reconsider the vote by which the
amendment was agreed to.
Mr. KENNEDY. I move to lay that
motion on the table.
The motion to lay on the table was
agreed to.
REMOVAL ?OF INJUNCTION OF
SECRECY
The ACTING PRESIDENT pro tern-
pore. As in executive session, without
objection, it is ordered that the injunc-
tion of secrecy be removed from a sup-
plementary protocol to the 1970 Tax
Convention with Belgium (Treaty
Document No. 100-15), transmitted to
the Senate on February 29, 1988, by
the President; and ask that the proto-
col be considered as having been read
the first time; that it be referred, with
accompanying papers, to the Commit-
tee on Foreign Relations and ordered
to be printed; and that the President's
message be printed in the RECORD.
The message of the President fol-
lows:
To the Senate of the United States:
I transmit herewith, for Senate
advice and consent to ratification, the
Supplementary Protocol Modifying
and Supplementing the Convention
between the United States of America
and the Kingdom of Belgium for the
Avoidance of Double Taxation and the
Prevention of Fiscal Evasion with Re-
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S 1656 CONGRESSIONAL RECORD ? SENATE
spect to Taxes on Income, together
with a related exchange of notes. The
Supplementary Protocol and the ex-
change of notes were signed at Wash-
ington on December 31, 1987. I also
transmit for the information of the
Senate the report of the Department
of State with respect to the Protocol.
Pending the successful conclusion of
a comprehensive new income tax con-
vention, the Supplementary Protocol
will make certain improvements in the
existing convention intended to pro-
mote the development of economic re-
lations between the United States and
Belgium.
It is most desirable that this Proto-
col be considered by the Senate as
soon as possible and that the Senate
give advice and consent to ratification.
RONALD REAGAN.
THE WHITE HOUSE, February 29,
1988.
? APPOINTMENT BY THE VICE
PRESIDENT
The ACTING PRESIDENT pro tern-
pore. The Chair, on behalf of the Vice
President, pursuant to 22 U.S.C. 276h-
276k, as amended, appoints the follow-
ing Senators as members of the Senate
delegation to the Mexico-United
States Interparliamentary Group
during the second session of the 100th
Congress, to be held in New Orleans,
LA, March 4-8, 1988: the Senator from
Alaska [Mr. MURKOWSKI] and the Sen-
ator from Arizona [Mr. McCAnql.
Mr. HATCH. Mr. President, I sug-
gest 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 (Mr.
SANFORD). Without objection, it is so
ordered.
CLOTURE MOTION
Mr. BYRD. Mr. President, I am not
particularly eager to offer a cloture
motion on this bill, but I feel con-
strained to do so after having dis-
cussed the matter with the two lead-
ers, the two managers of the bill. Sen-
ators have had an ample opportunity
and plenty of time to come over and
offer amendments. As I understand
the situation, an amendment was of-
fered. It was discussed and withdrawn.
It was not a germane amendm'ent. Mr.
President, I am sorry that Senators
apparently are not showing a disposi-
tion to call up amendments today.
This is an important bill. I shall
offer a cloture motion which will
mature on Thursday. In the mean-
time, I hope that Senators can come to
some agreements. I will be very happy
to offer a time agreement, allowing for
germane amendments to be called up
and voted on and disposed of so that
the Senate could get on with this busi-
ness. It will get on with this business,
one way or another; and I hope that
Senators will cooperate in helping the
Senate to complete this business
sooner rather than later.
So I hope that this cloture motion
will not have to mature, but just as a
bit of insurance, Mr. President, I send
a cloture motion to the desk.
The PRESIDING OFFICER. The
cloture motion having been presented
under rule XXII, the Chair, without
objection, directs the clerk to read the
motion.
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.
The PRESIDING OFFICER. The
majority leader.
Mr. BYRD. Mr. President, it is 5
o'clock p.m. I do not want to keep the
Senate in further today if Senators
are not going to call up amendments.
The cloture motion Will ripen by
Thursday. In the meantime I would
urge all Senators on both sides who
are interested in the bill to tryi to get
their heads together and resolve their
problems and call up their amend-
ments, dispose of them, let us pass the
bill and get on to something else.
Mr. President, there will be no more
rollcall votes today.
Mr. RIEGLE. Mr. President, today,
March 1, marks the beginning of "Na-
tional Social Work Month." I want to
recognize the special contributions
made by our Nation's social workers to
the well-being of their fellow Ameri-
cans.
Social workers deserve this recogni-
tion because they act on their compas-
sion for others by working for more ef-
fective social services and programs.
They display a commitment to profes-
sional integrity and a dedication to
public service.
Social workers are involved in the
entire range of activities from direct
client counseling and family interven-
tion services to the more broad mat-
ters of policy and program develop-
ment and advocacy. They assist people
from the entire range of socio-econom-
ic backgrounds.
I would like to underscore our Na-
tion's social workers' long and proud
tradition of reaching out to serve
those most in need. They do, indeed,
stand on the front line of battle
against our most pressing social prob-
lems. Many victories, large and small,
are attributable to their tireless ef-
forts. -
Mr. President, I worked closely with
the National Association of Social
Workers [NAM] on the budget this
March 1, 1988
past fall in an effort to gain-additional
funding for the title XX social services
block -grant. NASW is the largest orga-
nization of social workers, speaking as
one voice to promote our Nation's
social and community life. ?NASW
joined in a coalition of 95 national or-
ganizations, called Generations
United, which successfully worked
with other Members of Congress and I
to secure an additional $50 million au-
thorization for the social services
block grant for fiscal year 1988.
Today, the NASW embarks on a
public service campaign, marking the
beginning of "Social Work Month,"
emphasizing the importance of educa-
tion needed to stop the AIDS epidem-
ic. The campaign also seeks to raise
public awareness about the needs of
AIDS patients and their families. As
the painful toll of AIDS epidemic
rises, social workers once again occupy
the front lines to assist the afflicted.
The NASW campaign will serve to en-
hance public understanding of the
psychological and social burdens that
often accompany AIDS, or the fear,
hate and discrimination encountered
by patients, families and friends.
Mr. President, I am pleased to have
this opportunity to applaud the count-
less efforts made by social workers to
improve the lives of people in need of
assistance. As the challenges faced by
social workers mount, I am certain
they will continue to meet the chal-
lenge. It is with great appreciation
that America celebrates "National
Social Worker Month."
ExF,CUTIVE AND OTHER
COMMUNICATIONS
The following communications were
laid before the Senate, together with
accompanying papers, reports, and
documents, which were referred as in-
dicated:
EC-2630. A communication from the
Deputy Director of the Office of Manage-
ment and Budget, Executive Office of the
President, transmitting, pursuant to law, a
report on the reapportionment of an appro-
priation of an account of the Veterans' Ad-
ministration; to the Committee on Appro-
priations.
EC-2631. A communication from the Sec-
retary of Health and Human Services, trans-
mitting a draft of proposed legislation to
repeal the authority for special pay for Psy-
chologists in the Commissioned Corps of the
Public Health Service; to the Committee on
Armed Services.
EC-2632. A communication from the
Chairman of the Board of Directors of the
Panama Canal Commission, transmitting a
draft of proposed legislation to authorize
expenditures for fiscal year 1989 and 1990
for the Panama Canal Commisison to oper-
ate and maintain the Panama Canal and for
other purposes; to the Committee on Armed
Services.
EC-2633. A communication from the
Under Secretary of Defense (Acquisition),
transmitting, pursuant to -law, the annual
report on Chemical Warfare?Biological Re-
search Program Obligations for fiscal year
1987; to the Committee on Armed Services.
EC-2634. A communication from the Sec-
retary of Housing and Urban Development,
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Wednesday, March 2, 1988
Daily Digest
HIGHLIGHTS
House passed civil rights restoration bill.
Senate
Chamber Action
Routine Proceedings, pages S1673-S1788
Measures Introduced: Nine bills and one resolu-
tion were introduced, as follows: S. 2116-2124, and
S.J. Res. 268.
Page 51745
Measures Reported: Reports were made as follows:
S. 450, to recognize the organization known as the
National Mining Hall of Fame and Museum. (S.
Rept. No. 100-294)
S. 840, to recognize the organization known as the
82nd Airborne Division Association, Incorporated.
(S. Rept. No. 100-295)
Page S1745
Polygraph Protection Act: Senate continued con-
sideration of S. 1904, to strictly limit the use of lie
detector examinations by employers involved in or
affecting interstate commerce, with a committee
amendment in the nature of a substitute, taking
action on additional amendments proposed thereto,
as follows:
Page 51678
Adopted:
(1) By unanimous vote of 96 yeas (Vote No. 35),
Quayle modified Amendment No. 1606, to provide
an exemption for preemployment tests for use of
controlled substances.
Page 51701
(2) Thurmond Amendment No. 1607, to provide
a restricted exemption for security services. (By 20
yeas to 76 nays (Vote No. 36), Senate earlier failed
to table the amendment.)
Page 51701
(3) Nickles Amendment No. 1608 (to Amend-
ment No. 1607), of a perfecting nature.
Page 51701
(4) Cochran Amendment No. 1617, to remove the
provisions establishing qualifications for polygraph
examiners.
Page 51726
(5) Gramm Amendment No. 1618, to provide for
national security exemptions.
Page S1728
(6) Gramm Amendment No. 1619, to provide a
nuclear power plant exemption.
Page $1728
(7) Metzenbaum Amendment No. 1621, to ex-
press the sense of the Senate that the proposed loan
by the World Bank to provide Mexico's steel com-
panies with subsidized financing is not in the best
interests of the United States or in the best interests
of Mexico's own economic revitalization, and that
the World Bank should rejected the proposed plan.
(By 45 yeas to 48 nays (Vote No. 41), Senate earlier
failed to table the amendment.)
Rejected:
(1) Boschwitz Amendment No. 1610, to permit an
employer to administer a lie detector test to an em-
ployee if the employee requests the test. (By 56 yeas
to 38 nays (Vote No. 37), Senate tabled the amend-
ment.)
Page 51733
Page 51717
(2) Gramm Amendment No. 1615, to provide a
common carrier exemption. (By 55 yeas to 37 nays
(Vote No. 38), Senate tabled the amendment.)
Page 51721
(3) Cochran Amendment No. 1616, in the nature
of a substitute. (By 65 yeas to 29 nays (Vote No.
39), Senate tabled the amendment.)
Page 51723
(4) Gramm Amendment No. 1620, to provide an
exemption for use of polygraph tests administered in
accordance with Department of Defense Directive
5210.48. (By 57 yeas to 35 nays (Vote No. 40),
Senate tabled the amendment.)
Page 51728
Withdrawn:
(1) Helms Amendment No. 1488, to express the
sense of the Senate that the United States is violat-
ing the ABM Treaty.
Page S1683
D 175
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D 176 CONGRESSIONAL RECORD ? DAILY DIGEST March 2, 1988
(2) Boschwitz Amendment No. 1609, to permit an
employer to administer a lie detector test to an em-
ployee if the employee requests the test.
Page $1714
A unanimous-consent agreement was reached pro-
viding for further consideration of the bill and
amendments proposed thereto.
Page 51732 -
Senate will continue consideration of the bill and
[amendments proposed ?thereto on Thursday, March
3, with a cloture vote to occur thereon, with the re-
quired quorum call having been waived.
Motion to Request Attendance: During today's
proceedings, the following also occurred:
By 67 yeas to 27 nays (Vote No. 34), Senate
agreed to a motion to instruct the Sergeant at Arms
to request the attendance of absent Senators.
Page S1679
Statements on Introduced Bills: Page $1746
Amendments Submitted: Page 51759
Additional Cosponsors: Page 51759
Notices of Hearings: Page 51772
Authority for Committees: Page $1772
Additional Statements: Page $1772
Quorum Calls: One quorum call was taken today.
(Total-12)
Page $1678
Record Votes: Eight record votes were taken
today. (Total-41)
Pages $1679, 51701, $1712, $1719, S1723, $1726, S1731, 51737
Recess: Senate convened at 10 a.m. and recessed at
10:09 p.m., until 9 a.m., on Thursday, March 3. (For
Senate's program, see the remarks of Senator Byrd
in today's Record on page S1787.)
Committee Meetings
(Committees not listed did not meet)
CORPS OF ENGINEERS
Committee on Appropriations: Subcommittee on Energy
and Water Development held hearings to review
those programs administered by the U.S. Army
Corps of Engineers, receiving testimony from
Robert W. Page, Assistant Secretary of the Army
for Civil Works; Lt. General E.R. Heibert III, Chief
of Engineers; and Major General Henry J. Hatch,
Director of Civil Works.
Subcommittee recessed subject to call.
APPROPRIATIONS?DOE
Committee on Appropriations: Subcommittee on the In-
terior and Related Agencies held hearings on pro-
posed budget estimates for fiscal year 1989, receiv-
ing testimony in behalf of funds for their respective
activities from Chandler L. van Orman, Deputy Ad-
ministrator, Economic Regulatory? Administration,
Helmut A. Merklein, Administrator, Energy Infor-
mation Administration, and George B. Breznay, Di-
rector, Office of Hearings and Appeals, all of the
Department of Energy.
Subcommittee will meet again on Tuesday, March
16.
DOD?SPECIAL ACCESS PROGRAMS
Committee on Armed Services: Subcommittee on Strate-
gic Forces and Nuclear Deterrence concluded -
Closed joint hearings with the Subcommittee on
Conventional Forces and Alliance Defense to review
special access programs of the Department .of De-
fense, and the assessment of the INF Treaty's possi-
ble impact on DOD's special access programs, after
receiving testimony from officials of the Department
of Defense and the Armed Services.
1989 BUDGET
Committee on the Budget: Committee continued hear-
ings in preparation for reporting the first concurrent
resolution on the fiscal year 1989 budget, receiving
testimony from Alan Greenspan, Chairman, Board
of Governors, Federal Reserve System.
Hearings continue tomorrow.
BUSINESS MEETING
Committee on Energy and Natural Resources:- Committee
ordered favorably reported H.R. 2629, to clarify the
conveyance and ownership of submerged lands by
Alaska Natives, Native Corporations and the State
of Alaska.
EPA/NRC BUDGETS
Committee on Environment and Public Works: Commit-
tee concluded hearings to review those programs
which fall within its jurisdiction as contained in the
President's proposed budget for fiscal year 1989,
after receiving testimony in behalf of funds for their
respective activities from Lee M. Thomas, Adminis-
trator, and A. James Barnes, Deputy Administrator,
both of the U.S. Environmental Protection Agency;
Lando W. Zech, Jr., Chairman, and Thomas M.
Roberts, Kenneth M. Carr, Frederick M. Bernthal,
and Kenneth C. Rogers, all Commissioners, all of
the Nuclear Regulatory Commission.
BUSINESS MEETING
Committee on Labor and Human Resources: Committee
ordered favorably reported the following business
items:
An original bill to authorize funds for the Com-
munity Health Centers Program;
-H.R. 3097, to authorize grants to assist organ pro-
curement organizations, with an amendment;
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S .1738 CONGRESSIONAL RECORD ? SENATE March 2, 1988
tests currently conducted. At the same
time, employers will be allowed to use
the polygraph test in circumstances
most useful to them.
Other amendments that I offered in
1986 sought to further protect the
rights of employees. One of my pro-
posals would have ensured that em-
ployees were not dismissed or discrimi-
nated against solely for refusing to
take a polygraph test. Another would
have prevented similar adverse actions
against people who actually fail a
polygraph test. In both cases, employ-
ers would have been required to show
further evidence in order to act
against an employee. In addition, I
proposed that polygraph test results
be kept confidential. All three of these
provisions have been included in S.
1904 and these are crucial to the pro-
tection of an employee's civil rights
when tests are permitted.
I am also pleased that S. 1904 in-
cludes my proposal to preclude the
preemption of State law. The State of
Connecticut, for example, has very
tough restrictions on polygraph tests
that I do not want compromised by a
weaker Federal law. Under S. 1904, the
Federal statute would become the
minimum standard governing poly-
graph use, but stronger State laws
would remain in force.
Finally, I am pleased that S. 1904 de-
tails important and comprehensive
guidelines for the conduct of poly-
graph tests. An employee who takes a
test must have notice as to the time,
place, nature, and procedures of the
test, and must be given an opportunity
to review the questions to be asked.
The examinee may not be asked ques-
tions concerning political or religious
beliefs, nor other personal matters,
and may not be subjected to probing
and badgering questioning. The exam-
ine is also allowed to terminate the
test at any time. These are important
guidelines, because they systematize
polygraph tests and take much of the
mystery out of the process.
Mr. President, we have before us an
excellent opportunity to enact legisla-
tion concerning a widespread and
questionable industry practice; a prac-
tice under which an employee's right
to privacy can now be denied under
virtually any circumstance; a practice
under which employees can now be
stigmatized as criminals or liars based
on the results of a scientifically unreli-
able testing procedure. The proposal
before us today would apply laws con-
sistently across the board; it is a com-
promise in which the interests of both
sides are taken into account; and it is
one based on the hard evidence con-
cerning the accuracy of polygraph
tests. I urge the swift passage of S.
1904.
Mr. HEINZ. Mr. President, I rise in
strong support of S. 1904, the Poly-
graph Protection Act of 1987. By pro-
hibiting employers from using lie de-
tectors to screen potential or present
employees, S. 1904 will help eliminate
a significant and growing hazard in
today's workplace.
I support this legislation for several
reasons. First, a wide variety of studies
have shown that polygraphs are unre-
liable in detecting truth from decep-
tion. I would point out that it is the
professional judgment of groups such
as the American Psychologists Asso-
ciation, the American Medical Associa-
tion that no scientific evidence exists
to justify the reliability of polygraphs
as pre-employment screening tools.
In an effort to quantify the accuracy
of polygraphs, Congress' own Office of
Technology Assessment conducted an
intensive analysis and review of re-
search studies in this area in 1983. The
OTA report only found evidence to
justify the validity of polygraphs
when used to invest,igate specific
criminal incidents. In these instances,
OTA rated a polygraph's ability to
detect deception at "better than
chance, but with error rates that could
be considered significant." One study
reviewed in the OTA analysis found
that a polygraph incorrectly identified
innocent respondents 75 percent of
the time.
With success rates like this, it is no
wonder that most Federal courts
refuse to admit polygraph test results
as evidence in criminal trials.
But as information about the inaccu-
racy of polygraphs continues to
mount, these machines are increasing-
ly used as a means to screen potential
employees. It is estimated that 2 mil-
lion polygraphs are administered each
year in this country, more than four
times the amount administered 10
years ago. Over 75 percent of these
tests are administered not as part of
an investigation into theft where the
employer has reason to suspect an em-
ployee but rather as a means to dis-
qualify an applicant from being hired.
And it is precisely these type of tests
that OTA has found to have the high-
est percentage of "false positives"?in-
stances in which the polygraph incor-
rectly identifies innocent persons as
deceptive. As many as 50,000 Ameri-
cans each year are wrongfully denied
jobs or promotions because of pre-
screening tests that, according to
OTA, have error rates as high as 50
percent. For many of these people, a
failed polygraph, accurate or not,
leaves a permanent blemish on their
employment record.
Mr. President, I would point out
that S. 1904 has been tightly drawn to
address only the most dangerous and
inappropriate uses of polygraphs?to
screen potential employees or random-
ly test present employees. The bill
does not prohibit the use of lie detec-
tors in investigations of wrongdoing
where an employer has reason to sus-
pect an employee of involvement in
such a crime. In these instances, how-
ever, no adverse action can be taken
against an employee based solely on
the results of a polygraph. As such,
the polygraph may be used as a con-
firmatory instrument, which, given its
dubious reliability, is appropriate.
Some will argue that polygraph pro-
tection is a function best left to State
legislatures, 21 of whom have enacted
laws to prohibit or restrict the use of
these machines. My response to that
argument is twofold. First, these laws
are fine if a prospective employee is
fortunate to live in one of the 21
States that regulates polygraphs. But
what of job applicants in the remain-
ing 29 States who may still be forced
to take a preemployment polygraph?
Furthermore, as the body with control
over interstate commerce, the Federal
Government has the authority and
the responsibility to regulate the use
of the polygraph, an instrument
widely employed by industries engaged
in this type of commerce.
In conclusion, S. 1904 is balanced
and necessary legislation. Studies have
repeatedly shown that the polygraph
is an unreliable instrument. More im-
portantly, its use may have potentially
dangerous and unintended effects on
the ability of an innocent and honest
job applicant or employee to find or
keep a job. I urge my colleagues to
upport this legislation.
MORNING BUSINESS
Mr. BYRD. Mr. President, I ask
unanimous consent that there be a
period for morning business not to
extend beyond 10 minutes and that
Senators may speak therein.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
THE INTENT OF THE HARKIN/
HUMPHREY AMENDMENT TO S.
557, THE CIVIL RIGHTS RESTO-
RATION ACT
Mr. KENNEDY. As Democratic floor
manager of S. 557, the Civil Rights
Restoration Act of 1987, and following
my discussion with members of the
Subcommittee on the Handicapped
and Others, I would like to ask my col-
league from Iowa, Senator HARKIN, to
help clarify the record with regard to
amendment No. 1396 that he cospon-
sored and that was added to the bill
during Senate consideration of S. 557
on January 28, 1988. We believe we
had a clear understanding of the pur-
pose of the amendment when we nego-
tiated and agreed to it and I would like
that purpose to be established for the
record.
Mr. WEICKER. As an original co-
sponsor of S. 557 and former chairman
and the current ranking minority
member of the Subcommittee on the
Handicapped, I too would like to ask
my colleague, the current chairman of
the Subcommittee on the Handi-
capped, to reiterate his understanding
of the amendment.
Mr. HARKIN. I would be happy to
set forth for the record the back-
ground and intent of this amendment.
On January 28, I sponsored amend-
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March 2, 1988 CONGRESSIONAL RECORD ? SENATE
want us to do for them. I do not know
how much is too much. $4 billion? $40
billion? $400 billion? This Senator says
enough is enough.
Mr. DODD. Mr. President, does the
Senator yield back the remainder of
his time?
Mr. HEINZ. Is the Senator prepared
to yield back the remainder of his
time?
Mr. DODD. Yes.
Mr. HEINZ. I yield back the remain-
der of my time.
Mr. DODD. Mr. President, I move to
table the amendment, and I ask for
the yeas and nays.
The PRESIDING OFICER. Is there
a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The
question is on agreeing to the motion
to table the amendment. On this ques-
tion the yeas and nays have been or-
dered, and the clerk will call the roll.
The legislative clerk called the roll.
Mr. CRANSTON. I announce that
the Senator from Tennessee [Mr.
GORE], the Senator from Iowa [Mr.
HARKIN], the Senator from Hawaii
[Mr. INouyEl, the Senator from Illi-
nois [Mr. &mor], and the Senator
from Mississippi [Mr. STENNIS] are
necessarily absent.
I also announce that the Senator
from Delaware [Mr. BIDEN1 is absent
because of illness.
Mr. SIMPSON. I announce that the
Senator from Kansas [Mr. DOLE] is
necessarily absent.
The result was announced?yeas 45,
nays 48, as follows:
[rtollcall Vote No. 41 Leg.]
Adams
Baucus
Bingaman,
Boren
Bradley
Breaux
Bumpers
Chafee
Chiles
Cochran
Cohen
Cranston
Daschle
Dodd
Evans
YEAS-45
Fowler
Graham
Hatfield
Humphrey
Johnston
Kassebaum
Kennedy
Kerry
Lautenberg
Leahy
Matsunaga
McCain
Mitchell
Moynihan
Murkowski
Nunn
Packwood
Pell
Proxmire
Pryor
Reid
Sanford
Simpson
Stafford
Stevens
Trible
Warner
Weicker
Wilson
Wirth
NAYS-48
Armstrong Glenn Metzenbaum
Bentsen Gramm Mikulski
Bond Grassley Nickles
Bosthwitz Hatch Pressler
Burdick Hecht Quayle
Byrd Heflin Riegle
Conrad Heinz Rockefeller
D'Amato Helms Roth
Danforth Hollings Rudman
DeConcini Karnes Sarbanes
Dixon Kasten Sasser
Domenici Levin Shelby
Durenberger Lugar Specter
Exon McClure Symms
Ford McConnell Thurmond
Garn Melcher Wallop
Biden
Dole
Gore
So the
agreed to.
NOT VOTING-7
Harkin Stennis
Inouye
Simon ,
motion to table was not
The PRESIDING OFFICER. The
majority leader.
Mr. BYRD. Mr. President, I ask
unanimous consent that the call for
the yeas and nays be vitiated.
Mr DODD. Reserving the right to
object.
The PRESIDING OFFICER. Is
there objection?
Mr. BYRD. Mr. President, I believe
some Senators have gone home.
Mr. President, I ask unanimous con-
sent that the call for the yeas and
nays be vitiated.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BYRD. Mr. President, that is
the last rollcall vote.
The PRESIDING OFFICER. The
question is on the amendment.
All those in favor will signify by
saying "aye."
Opposed, "no."
The Chair has a doubt.
The Chair will have a vote count. All
those in favor of the amendment will
raise their hands and the clerk will
count.
All those opposed, raise their hands.
The amendment is agreed to.
The amendment (No. 1621) was
agreed to.
Mr. METZENBAUM. Mr. President,
I move to reconsider the vote by which
the amendment was agreed to.
Mr. HEINZ. I move to lay that
motion on the table.
The motion to lay on the table was
agreed to.
Mr. DODD. Mr. President, I rise
today in support of S. 1904, the Poly-
graph Protection Act of 1987.
I am very pleased that the Senate is
taking up this matter today. This is an
issue Congress has struggled with for
several years now, and it is one of
great importance to employers and
employees alike. According to the
Office of Technology Assessment,
there were approximately 2 million
polygraph tests administered in 1986,
98 percent of them by private employ-
ers. Clearly, the use of these tests is
widespread, and both employees and
employers have very important and
real concerns. Employees want and de-
serve to have their rights protected.
Employers want and deserve to be able
to protect themselves from dishonest
employees.
Previous polygraph proposals have
stalled in Congress because they have
not embodied a consistent and logical
approach to this problem. As all of us
know, the House twice in the past 2
years has passed legislation restricting
polygraph use. In 1986, the full House
considered a bill that would have com-
pletely banned polygraph testing
except by nursing homes and day care
centers, which could have used the
test to screen applicants for positions
involving direct contact with children
or the elderly. On the floor, amend-
ments were added to allow testing of
security guards as well as workers and
contractors employed by public utili-
ties.
S 1737
This year, the House passed a simi-
lar bill, H.R. 1212. Again, the ban was
to be complete, but in floor action
amendments were adopted to exempt
security firms from the prohibition.
Manufacturers and/or distributors of
controlled substances were also per-
mitted to use polygraph tests, but only
in the conduct of criminal investiga-
tions.
Mr. President, the problem with the
House approach in the past two Con-
gresses is that it would create selective
and subjective polygraph bans that
vary according to the type of business
concerned. This is illogical, and con-
trary to the very reasons we want to
national polygraph policy in the first
place. Lie detectors are inherently un-
reliable and there is no empirical way
to differentiate one industry from an-
other in terms of their respective need
for exemptions form the polygraph
ban. Security firms versus day car cen-
ters; nursing homes versus nuclear
powerplants; who needs the polygraph
more?
I am proud to take at least partial
credit for the new approach to poly-
graph legislation embodied in S. 1904.
In 1986, the Senate Labor Committee
reported polygraph legislation based
on the bill which had just passed the
House of Representatives. However,
that legislation was never considered
on the floor of the Senate because
prospective amendments to create in-
dustrywide exemptions eroded politi-
cal consensus for the bill. In anticipa-
tion of this problem, I discussed seven
amendments during that 1986 commit-
tee markup, six of which form the
basis for the radically different ap-
proach before us today.
Two of my amendments sought to
ensure that law governing polygraph
use was consistent for all industries,
and was based on scientific evidence
concerning polygraph reliability. One
amendment would have banned all
random or preemployment testing,
and another would have permitted
tests only in the course of an investi-
gation into theft or criminal viola-
tions_ These proposals were based on
expert testimony that both random
and preemployment testing programs
were simply unreliable and that-accu-
racy is much greater in cases where
tests are part of an ongoing investiga-
tion. These amendments formed the
basis for the approach before us today:
a ban on all preemployment and/or
random testing programs, with tests
permitted as part of ongoing investiga-
tions of loss or theft.
Of course this approach makes nei-
ther employers nor employees ecstatic.
But such is the nature of the legisla-
tive process, that opposing sides must
compromise. What is significant is
that S. 1904 meets the principal objec-
tives of both sides. On the one hand,
the ban on random and preemploy-
ment screening will protect employees
from inaccurate testing and will elimi-
nate approximately 70 percent of the
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S 1736 CONGRESSIONAL RECORD ? SENATE
laxity with which we jump into for-
eign affairs, knowing half of what we
are talking about or half of what we
are doing, and we ask people in a 15-
minute period to vote on something
that could have extraordinarily ad-
verse effects on our foreign policy.
Frankly, I am appalled that the Sec-
retary of the Treasury would have his
arm twisted to even vote against this
loan. That is what I think is wrong
about what we are doing. I would hope
my colleagues would join with us in
taking a second look and a second
thought about the hasty action we are
taking that could have some very, very
bad effects on our ability to conduct
foreign policy with the nearest neigh-
bor we have to the south, and one
which has plenty of problems.
Mr. DODD. Mr. President, how
much time do I have remaining?
The PRESIDING OFFICER. The
Senator has 3 minutes and 26 seconds.
Mr. DODD. I reserve the remainder
of my time.
Mr. METZENBAUM addressed the
Chair.
The PRESIDING OFFICER. The
Senator from Ohio.
Mr. METZENBAUM. Mr. President,
I have heard it said that this action
will have no impact on the loan. I do
not know about that. I think that
there is a possibility that if the World
Bank learns that the U.S. Senate is
not in favor of this loan and recog-
nizes what it will do to the American
steel industry that we still might save
the World Bank from the error of its
own ways.
I think the World Bank performs a
useful purpose in many instances but
quite often I think it goes overboard. I
would not be here standing supporting
the World Bank creating a new insur-
ance industry in Mexico, and I am not
in favor of creating a new steel indus-
try in Mexico. It does not make any
sense when we have steelworkers walk-
ing up and down the streets of every
State in the country where there are
steel operations in effect, and they are
unemployed. And they do not under-
stand this. You would not understand
it either if you were they.
It has been stated this will hurt the
domestic steel industry if we defeat
this resolution. I do not understand
that at all. The domestic steel industry
does not want this loan to be made.
And it should not be made. It is wrong
to make it. And the only reason we are
acting as we are here this evening is
because the World Bank gave us 3
days' notice-3 days' notice?before we
learned what was involved. And we
urged them to postpone it, and if they
did we would not have gone forward
with the resolution this evening.
The PRESIDING OFFICER. The
Senator's time has expired.
Mr. DODD. Mr. President, I yield 1
minute to the distinguished Senator
from Alaska.
Mr. STEVENS. Mr. President, it is
almost impossible for this Senator to
conceive an action by the World Bank
that would not involve a conflict with
some industry in the United States. I
cannot conceive how these countries
can repay our banking system the
amount that they owe us unless we
keep our nose out of their business,
and I really cannot understand why in
a 15-minute period we are asked to
pass a resolution of this gravity with-
out any prior study, without any refer-
ence to a committee, and without any
compliance with what I consider to be
the proper procedure for consideration
of such a far-reaching question.
I am going to oppose this because I
think those countries need jobs; and if
they have jobs, they will buy more of
our products, not less.
Mr. DODD. Mr. President, I yield 1
minute to the distinguished Senator
from Rhode Island.
Mr. CHAPEE. Mr. President, we
want Third World countries to pay
their debts to us. We want Third
World countries to be good customers
of ours, but apparently we do not want
those Third World countries to com-
pete with us in any respect; we do not
want to, apparently, lend them any
money to improve their capacity to
purchase goods from us and to pay
back their debt. That, to me, is ridicu-
lous. I think we -are making a great
mistake in meddling in this business.
I want to commend the Senator
from Connecticut and others who
have made remarks in that connec-
tion. I think we ought to oppose this
resolution.
Mr. DODD. Mr. President, let me
mention, because I think it is worth
noting here, that we have been fight-
ing for so long to get the Mexican
Government to lift those restrictive
tariffs, not to subsidize their industry.
Somehow we happen to believe or
think that if we can reject the World
Bank loan, the Japanese or someone
else is not going to go in, divide that
kind of money which probably will not
secure for us the kind of improve-
ments we would like to see in Mexican
public policy decisions when it comes
to tariffs and subsidies.
I would just implore, if there were
more time, my colleagues to read in
fact what this agreement involves, in
fact what we have secured from the
Mexican Government as a result of
this loan.
Mr. President, I know there is time
remaining on the other side, but at the
appropriate time I would move to
table this resolution and ask for the
yeas and nays on it, but I will with-
hold that motion until my colleagues
have expended their time.
I reserve the remainder of my time.
(By request of Mr. SIMPSON the
following statement was ordered to be
printed in the RECOR1X)
? Mr. DOLE. Mr. President, I am
pleased to join as a sponsor of this
amendment in opposition to the pro-
posed World Bank loan to Mexico. We
all would applaud most efforts to help
Mexico improve its economy, but it
seems to me that this $400 million
March 2, 1,988
loan targeted to Mexico's steel indus-
try is misguided.
The global market for steel already
suffers from serious overcapacity. Our
domestic industry has gone through
the pain of reducing capacity, as has
the steel industry in Europe and else-
where. This pain has been very real. It
has meant lost jobs, lost incomes, dev-
astated communities.
Our domestic steel industry contin-
ues its efforts to modernize, to become
more productive, to become more com-
petitive in the world marketplace. The
effort has not been easy, and we still
have a way to go.
In this context, I question the
wisdom of targeting assistance to the
Mexican steel industry. It seems clear
that the world market does not need
additional production. I understand
that the proposed loan will not add ca-
pacity, but it certainly will add prod-
uct.
After all our own steel industry has
gone through to reduce capacity and
become more competitive, it seems
Particularly aggravating that the
World Bank would strive to increase
world production.
I am especially gratified that the ad-
ministration has changed its position
and will now vote against this loan
when the matter comes before the
World Bank tomorrow. I can under-
stand the desire of the administration
to help Mexico revitalize its economy,
but I am sure there is a better way to
do it.
I want to emphasize that this is not
"Mexico bashing." That would be in
no one's interest. However, it would
seem far preferable both for Mexico
and our own steel industry if the
World Bank would look for ways to
help Mexico develop its economy in in-
dustries where there is an excess
demand, not where there is an excess
supply.?
Mr. HEINZ. Mr. President, how
much time remains?
The PRESIDING OFFICER. The
Senator from Pennsylvania has 3 min-
utes.
Mr. HEINZ. I yield myself 1 minute.
Mr. President, as the Senator from
Ohio has stated, this comes to the
floor because we have no alternative.
The World Bank will act tomorrow,
and, as he says, they have given us less
than 3 days's notice.
I think I know the reason. The Sena-
tor from Connecticut has said, "Let us
examine what is part of this agree-
ment." The first part of it, I say to the
Senator from Connecticut, is $100 mil-
lion to subsidize?straight subsidy?
raw materials for the Mexican steel in-
dustry. This is not simply $400 million
of investment; it is subsidy.
Mr. President, if we made a loan of
this equivalent size in the United
States to our steel industry, it would
be the equivalent of a $4 billion loan.
I listened to my colleagues who say
this is not a good amendment because
we should do anything the Mexicans
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March 2,1988 CONGRESSIONAL RECORD ? SENATE S 1735
Mr. STEVENS. I object. I think we
ought to comply with the rules and
give the opposition time to the minori-
ty leader, if there is no time designat-
ed. He is entitled to equal time.
Mr. BRADLEY. If the Senator will
yield. I am the opposition.
Mr. STEVENS. The Senator does
not have any time.
The PRESIDING OFFICER. Objec-
tion is heard.
Mr. SIMPSON addressed the Chair.
The PRESIDING OFFICER. The
Republican leader.
Mr. SIMPSON. Mr. President, at the
time that unanimous-consent request
was propounded, I had been advised
that Senator DODD was speaking in op-
position to the measure or else I would
not have concurred with it. If we have
three people, each with 5 minutes,
speaking in favor of it and no one in
opposition, I hope our colleagues
would give 5 minutes through unani-
mous consent to the Senator from
New Jersey or someone who wishes to
speak on the other side so we might
have total fairness in the debate.
Mr. METZENBAUM and Mr. DODD
addressed the Chair.
The PRESIDING OFFICER. The
Senator from Ohio.
Mr. METZENBAUM. Mr. President,
there is an element of unfairness but
it was not intended to be that way be-
cause the proponents have 10 minutes
and the opposition has 5 minutes.
If the minority leader agrees, I
would suggest we give Senator DODD
the Additional 5 minutes and let him
dispense time to Senator BRADLEY.
I ask unanimous consent that Sena-
tor DODD be given an additional 5 min-
utes.
The PRESIDING OFFICER. Is
there objection? Without objection, it
is so ordered.
Mr. BRADLEY. Will the Senator
yield?
Mr. DODD. I yield 2 minutes to the
distinguished Senator from New
Jersey.
Mr. BRADLEY. Mr. President, just
to recap, this amendment has no
impact whatsoever on the loan that
the World Bank will approve tomor-
row.
Second, I do not think we want to
start voting on every loan that the
World Bank offers. We have enough
things to vote on as it is.
Third, half the population of Mexico
is under 15 years of age.
There is no way that they are going
?
to generate enough jobs to employ
their population if they do not get suf-
ficient investment. If they do not get
sufficient investment to generate jobs,
there is only one place that those
young people are going to head, and
that is north.
Fourth, we are in the middle of a
Presidential campaign in Mexico. The "
Presidential candidate of one party is
known to be pro-American. This is the
kind of amendment which is offered
for domestic political consumption
that can become a lightning rod in an
election in Mexico.
Mr. President, I hope that we will
approach this a little more soberly,
and we will, of course, be concerned
about the plight of steelworkers in
this country but that we will actually
do something to improve the plight of
steelworkers in this country as op-
posed to making a gesture that will
have no impact on the loan that will
be approved tomorrow.
Mr. STEVENS. Mr. President, would
the Senator yield a minute of his
time?
Mr. DODD. I would prefer to com-
ment, if I could and if there is some
time remaining, I will yield.
Mr. President, how much time do I
have remaining?
The PRESIDING OFFICER (Mr.
ROCKEFELLER). Eight minutes.
Mr. DODD. Let me commend my
colleague from New Jersey, who is
always succinct and eloquent. Obvious-
ly, if there is anything that will legiti-
mately help the steelworkers in this
country, then I think all of us would
join in that kind of an effort.
The fact of the matter is this
amendment, even ' if it were meaning-
ful?I will briefly describe it to you?
would have absolutely the opposite
effect if you knew what was included
in this $400 million loan to Mexico.
First of all, it has been said that the
World-Bank has been used to develop
Mexican steel. That is not the case
with this loan. It is not a loan to devel-
op Mexican steel, but rather to im-
prove the quality of their steel.
Let me tell you what the Mexicans
have agreed to as a result of the nego-
tiations over this loan.
One, Mexican officials have been
and are willing to cut even further tar-
iffs on steel imports which is vitally
important to United States steel inter-
ests as a result of this $400 million
loan agreement.
Second, officials have agreed to stop
subsidizing their steel industry over
the course of this loan, something we
have been trying to get them to do for
years. They have agreed to do it as a
result of this loan.
Third, the loan is not designed to in-
crease Mexico's steel. A unique feature
was included in this particular loan
agreement. That is built into this
which would allow the package to
make sure no additional economically
unsound expansion of Mexico's steel
Industry occurs during this particular
period.
All of these things we have been
trying to get for years from Mexico.
As a result of tough negotiations for
this loan we were able to get those
concessions. In fact, the U.S. steel in-
dustry will be assisted by this particu-
lar proposition. _
My colleague from New Jersey is ab-
solutely correct. We have an interpar-
liamentary meeting beginning 48
hours from now which this Senator
chairs with a group of Senators and
Congressmen from Mexico in New Or-
leans as we do every year. We are
going to go down there and we are
going to fight to get them to be more
supportive of our interests in drug
interdiction, we are asking them to be
more supportive about expanding and
opening up Mexican markets for
United States investment, we are
asking them to be more supportive to
pay back those loans on the debt that
they have incurred, and they are going
to have to be tough with their own
people.
How do you expect us to go down
and try to convince them to be sup-
portive of us? We are going to ask
them as well to help us out with Nor-
iega in Panama.
How willing do you think they are
going to be to help us on those things
when the U.S. Senate passes a mean-
ingless resolution for domestic politi-
cal consumption which in fact will
hurt the U.S. steel industry? How do
you explain that? That is exactly what
we are doing. Tonight if you want to
be helpful, if you want to send a good
message to our colleagues to the
south, and our colleague from New
Jersey is absolutely correct, Mexicans
are only going in one direction. It is a
desperately poor country. It is on its
knees. It needs help.
If you want to beat Marxism, if you
want to take on the Communists in
Latin America, we have heard more
speeches about that, then let us do
something to help these countries
struggling with it; not turn around
and give the speeches about Marxism
and then cut off a loan that tries to
help Mexico when it is in trouble.
So I would urge my colleagues to-
night to vote against this resolution
and to do something sensible for once,
and not try to interfere with every de-
cision the World Bank makes when in
fact they negotiate a loan that is in
our interests.
I yield to my colleague from Kansas.
Mrs. KASSEBAUM. Mr. President,
time is running for those of us who
wish to speak in opposition. I would
like to associate myself with the re-
marks of the Senator from Connecti-
cut.
I understand the frustration of
those who initiated this resolution but
It is a serious mistake I think for the
U.S. Senate to go on record trying to
dictate, regardless of the merits of the
issue the World Bank will do in their
vote for or against, individual votes
taken at the World Bank. It places us-
in a difficult position.
I think the Senator from Connecti-
cut has stated it very well.
I yield.
Mr. DODD. Mr. President, I yield to
the Senator from the State of Wash-
ington.
The PRESIDING OFFICER. The
Senator from Washington.
Mr. EVANS. Mr. President, I join
with the Senators from New Jersey,
Connecticut, and Kansas in opposing
this resolution. I am appalled at the
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S 1734 CONGRESSIONAL RECORD'? SENATE March 2, 1988
cant economic disruption and employment
losses due to increased foreign competition;
(2) the United States steel industry has
lost more than 12 billion dollars, more than
half its workforce, and closed scores of
plants throught out the country;
(3) in order to regain its competitive pos-
ture, the United States industry has invest-
ed 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 million 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.
Mr. METZENBAUM. 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.
Mr. METZENBAUM. Mr. President,
this sense-of-the-Senate resolution,
which is an amendment to the pending
bill, arises by reason of the fact that
Within the last 3 or 4 days we learned
that the World Bank intends to ap-
prove a $400 million loan to the Mexi-
can Government for the development
of steel. Frankly, we had no prior
notice of that. When we learned about
it, we discussed the matter with Jim
Baker this morning in the leader's
office and Jim Baker agreed that the
United States would vote "no" in con-
nection with the approval of that loan.
Some of us subsequently today
spoke with Mr. Baiter Conable, presi-
dent of the World Bank, and urged
him not to go forward with this loan.
There are unemployed steelworkers
in Ohio, Pennsylvania, West Virginia,
Texas, and almost every State in the
country.
Approval of $400 million to develop
the steel industry in Mexico to com-
pete with the steel industry in Amer-
ica is difficult for this Senator to un-
dertand. We have already heard from
the American Iron and Steel Institute
indicating their concern and objec-
tion?from U.S. Steel, from Inland,
Bethlehem, and LTV.
There is at this moment 200 million
tons of excess steel capacity world-
wide. Why we would under those cir-
cumstances want to help Mexico devel-
op a steel industry to compete with
American steel is difficult for me to
understand.
Let me make it clear. It is not out of
a lack of concern or affection with re-
spect to Mexico. We want to see Mexi-
co's economy strong. We want to con-
tinue the good trade relationship that
we have with Mexico. But it is not log-
ical. It is not right to take the Ameri-
can taxpayers' dollars, because we pay
about 20 percent of the $400 million,
to take the American taxpayers' dol-
lars and make them available to the
Mexican Government to develop a
competitive steel industry.
Mr. President, I reserve the remain-
der of my time. At this point I yield 1
minute to the Senator from West Vir-
ginia,
Mr. ROCKEFELLER. I thank the
Senator from Ohio.
Mr. President, I join the Senator in
my stunned reaction to this proposal
by the World Bank. I also thank Sec-
retary Baker for agreeing to vote
against this matter, but, unfortunate-
ly, it probably will not do any good.
It is appalling to me, first of all, that
the? Senate did not know about this.
Also appalling to me is the insensitiv-
ity of the administration these last
several years not only to the steel in-
dustry as a whole but especially to the
unemployed steelworkers in this coun-
try.
My vote has nothing to do with
Mexico itself. It there were any coun-
try to which the World Bank was con-
sidering a loan in order to help its
steel industry, I would be opposed. I
would join a resolution to fight it. Our
steel industry has not come back.
Weirton and Wheeling-Pittsburgh
Steel for example still have a long way
to go. This resolution ought to pass
and the World Bank ought not to
make this loan to Mexico for the pur-
pose of competing with the American
steel industry.
I thank the Senator from Ohio for
yielding.
The PRESIDING OFFICER. Who
yields time.
Mr. HEINZ. Mr. President, I yield 1
minute to the Senator from Texas.
Mr. GRAMM. Mr i President, I am
struck by the fact that we are here,
after the horse is out of the barn, talk-
ing about money that is loaned to
Mexico to develop the steel industry?
that is in competition with our own?
when we have people out of work.
We have had numerous other oppor-
tunities when we were voting on the
World Bank to do something about
this problem. In fact, when you let
other people loan your money, you
lose control. I hope those who are Out-
raged by what is happening here to-
night will remember that the next
time we vote on World Bank authori-
zation and appropriations. That is the
time to do something about the prob-
lem. What we ought to be doing is not
letting other people lend the American
taxpayers' money, because when they
do it, we do not have control over it.
Mr. HEINZ. Mr. President, I yield 1
minute to the Senator from Pennsyl-
vania.
Mr. SPECTER. I thank my distin-
guished colleague.
Mr. President, this movement is very
surprising in light of the fact that
there have been repeated assurances
from the administration, including the
Secretary of the Treasury, that there
would not be United States acquies-
cence in loans of this sort which un-
fairly compete with U.S. industry.
I put this question to the Secretary
of the Treasury: Why should a Penn-
sylvania steelworker pay taxes to the
U.S. Government, which? in turn
makes advances to the World Bank,
which then makes loans to a country
like Brazil or Mexico in this instance,
which then uses those loans to subsi-
dize steel which comes back into the
United States and puts that Pennsyl-
vania steelworker, who paid the taxes,
out of a job?
It is just fundamentally unfair and
this resolution ought to be passed and
these practices ought to be stopped.
I thank the Chair, and I thank my
colleague.
Mr. HEINZ. Mr. President, if there
are no further requests for time on
this side, I will make one comment.
Mr. President, there has been a lot
of debate about this matter, and I am
pleased to join with the Senator from
Ohio in supporting his resolution.
Maybe the authorities at the World
Bank should consider, if they are de-
termined? to go ahead with this loan
which will put still more American
steelworkers out of work, extending
such loans to those unemployed steel-
workers and others on the same gener-
ous terms of 3 years to pay with inter-
est rates about half, what they could
get if they were lucky.
Mr. BRADLEY addressed the Chair.
The PRESIDING OFFICER. The
Senator from New Jersey.
Mr. BRADLEY. Mr. President, I
would like to make four points.
The first is this amendment has no
impact on the loan that will be au-
thorized tomorrow. It has no impact.
The second point is, do we really
want to start voting on every loan that
is made by the World Bank? Do we not
have enough things to vote on?
The PRESIDING OFFICER. The
Chair will interrupt the Senator from
New Jersey. On whose time is the Sen-
ator speaking?
Who yields time?
Mr. STEVENS. Who has time in op-
position?
Mr. CRANSTON. Mr. President, is
not time equally divided in some fash-
ion?
The PRESIDING OFFICER. Time
is controlled by Senator DODD, Senator
HEINZ, and Senator METZENBAUM.
Mr. HEINZ. Mr. President, parlia-
mentary inquiry. Is it not that the
time in opposition is controlled by
Senator Donn?
The PRESIDING OFFICER. There
is no time in opposition. The time is al-
located to three Members.
Mr. METZENBAUM addressed the
Chair.
Mr. BRADLEY. Mr. President, I ask
unanimous consent that I may contin-
ue for 1 minute.
The PRESIDING OFFICER. Is
there objection?
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March 2, 1988 CONGRESSIONAL RECORD ? SENATE
sence. We know that. Why is it that
we not consider that and vote on that,
and then those Members wishing to
decide whether or not we can arrest
the other Senators? can talk about
that?
But in the meantime, while we are
considering whether we can arrest
each other, why do we not talk about
something else? Why do we not talk
about the principle of holding all of us
hostage here while we wait around 5
hours, 6 hours, 7 hours to vote on the
Intelligence matter?
I see no reason not to take the intel-
ligence issue up first, and then those
who wish to discuss this sensitive
matter can debate it.
I see no reason in having us wait all
day and all evening tomorrow night,
holding us hostage so we can have
that one final vote on the Intelligence
Committee authorization.
Mr. BYRD addressed the Chair.
The PRESIDING OFFICER. The
majority leader.
Mr. BYRD. I ask for 3 additional
minutes.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BYRD. Mr. President, the dis-
tinguished Senator from Arkansas
makes a very plausible proposal on the
surface, but there are some things in-
volved here that we have considered. I
would like to have done that first. I
would have liked to have gone to the
Intelligence Committee authorization
first. That occurred to me also. But I
happen to know that there is going to
be at least 5 hours of debate. I say
there will be at least 4; 1 hour will be
under my control. I would hope that
Senators would let us proceed as I
have suggested because, in this way,
we will not be in long tomorrow
evening, and we will not be in much
longer this evening.
We have one vote on the Metz-
enbaum amendment. That vote is al-
ready set. We have one more vote on
the Metzenbaum amendment, and
then tomorrow we will complete action
on this bill. We will not stay in too late
tomorrow evening. We can finish the
other bill either tomorrow evening or
the next day, and do the nomination,
lay down Price-Anderson, and go
home.
Mr. PRYOR addressed the Chair.
The PRESIDING OFFICER. The
Senator from Arkansas.
Mr. PRYOR. Mr. President, parlia-
mentary inquiry. Is there a time cer-
tain for when the debate will end and
passage of the pending matter?
Mr. BYRD. There is not a time cer-
tain. We do not know what time the
final vote will occur on the pending
matter. The 5 hours begin running on
the disposition of the pending matter.
The PRESIDING OFFICER. Is
there objection?
Mr. EXON. Reserving the right to
object.
The PRESIDING OFFICER. The
Senator from Nebraska.
Mr. EXON. Mr. President, I do not
wish to complicate a difficult job any
more than I have already. So I make a
suggestion that might speed the proc-
ess.
As I understood it, the unanimous-
consent request just put to the body
was that there be 3 amendments and 3
amendments only regarding the bill
before the Senate, and they would be
debated and taken up tomorrow, is
that correct?
Mr. BYRD. Yes.
Mr. EXON. May I suggest that those
who want to offer those amendments
be allowed to do so this evening, and
debate them this evening, and any
rollcall votes that are required on any
of those three amendments be stacked
for an appropriate time.
There will be an agreement between
the majority and minority leader. It
seems to me that will save an awful lot
of time tomorrow.
Mr. BYRD. Perhaps the distin-
guished Senator was not on the floor.
That was the request I made just a
few minutes ago, and the distin-
guished Senator from Texas did not
feel disposed to agree with that.
Mr. EXON. I am appealing to the
good sense and judgment of our re-
spected friend from Texas. I listened
to what he had to say. He said he
wanted to review the voting today on
the bill. We can dispose of that in a
great hurry by having the Parliamen-
tarian, through the Chair, explain to
all of us what happened today. I think
we already know that.
I do not happen to buy the argu-
ment realistically that we need to wait
overnight to work this matter out. I
would just appeal to my colleague
from Texas to expedite the procedure
and let those who want to offer their
amendments, which I think are in
order, to speed things along, and let us
not put that over on top of everything
else we have to do tomorrow and the
following day.
Mr. GRAMM. Would the distin-
guished majority leader yield?
Mr. BYRD. Yes, I yield.
Mr. GRAMM. I would just like to
remind my colleague that under the
rules of the Senate in a postcloture sit-
uation, any germane, amendment that
has been filed is in order. We have lim-
ited all of the amendments that are
currently at the desk. We have limited
ourselves to only three that can be of-
fered. We have said on those three
that there be 5 minutes on each side.
We have already started the process of
going back and looking at what has
been filed and trying to pull it down to
a total of three.
I think, quite frankly, we are trying
to save everybody time. There is
always the possibility that they will
not be offered. We have spent more
time here discussing all this than we
possibly are going to save tomorrow
and, in my view, the leadership has
worked it all out. We ought to do it
and go home tonight.
S 1733
Mr. BYRD. Mr. President, how
many amendments are at the desk
that are filed for postcloture?
Mr. SIMPSON. Mr. President, there
are 140.
The PRESIDING OFFICER. The
Chair is informed there are about 120-
plus amendments.
Mr. BYRD. Mr. President, I would
appeal to Senators. I assure my
friends, I can understand their frustra-
tions, but the distinguished Republi-
can leader and I have gone over this,
and I think this is the very best ar-
rangement that could be possibly
hoped for. I would hope that Senators
would not object to this.
The PRESIDING OFFICER. Is
there objection?
Mr. PRYOR. Mr. President, reserv-
ing the right to object--
The PRESIDING OFFICER. The
Senator from Arkansas.
Mr. PRYOR. Mr. President, if I may
Inquire of the Chair, has a time agree-
ment been reached on the amendment
by the Senator from Ohio?
Mr. METZENBAUM. Fifteen min-
utes.
Mr. PRYOR. Fifteen minutes, 71/2.
The PRESIDING OFFICER. Has
the question of the Senator been an-
swered?
Mr. PRYOR. I thank the Chair. I
think the question has been answered.
The PRESIDING OFFICER. Is
there objection? Without objection, it
is so ordered.
Mr. BYRD. Mr. President, I thank
all Senators.
The PRESIDING OFFICER. The
Senator from Ohio is recognized under
the previous rule.
AMENDMENT NO. 16 21
(Purpose: To express the opposition of the
Senate to the proposed $400 million World
Bank loan to restructure Mexico's steel in-
dustry)
Mr. METZENBAUM. Mr. President,
I send an amendment to the desk on
behalf of myself, Senator HEINZ, Sena-
tor BYRD, Senator DOLE, Senator
SHELBY, Senator Houirics, Senator
ROCKEFELLER, Senator GLENN, Senator
Dixon, Senator HEFLIN, Senator
DURENBERGER, and Senator NICKLES,
and ask for its immediate consider-
ation.
The PRESIDING OFFICER. The
clerk will report the amendment.
The legislative clerk read as follows:
The Senator from Ohio [Mr. METZ-
ENBAUM] proposes an amendment numbered
1621.
Mr. METZENBAUM. Mr. President,
I ask unanimous consent that further
reading of the amendment be dis-
pensed with.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
The amendment is as follows:
At the end of the committee amendment
add the following new section:
"SEC. . MEXICO STEEL LOAN.
The Senate finds:
(1) during the past decade the United
States steel industry has witnessed signifi-
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S 1732 ' CONGRESSIONAL RECORD ? SENATE
So the motion to lay on the table
amendment No. 1620 was agreed to.
Mr. KENNEDY. Mr. President, I
move to reconsider the vote by which
the motion was agreed to.
Mr. REID. I move to lay that motion
on the table.
The motion to lay on the table was
agreed to.
The PRESIDING OFFICER. The
Senator from West Virginia, the ma-
jority leader, is recognized.
The Senate will be in order.
Mr. BYRD. Mr. President, I believe
under the order previously entered,
Mr. METZENBAUM is now to be recog-
nized to call up his amendment. I ask
unanimous consent that I may proceed
for not more than 3 minutes, prior to
the Senator's being recognized.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BYRD. Mr. President, earlier an
order was entered whereby beginning
tomorrow at 9 o'clock, there would be
5 hours of debate on an extraneous
matter prior to the vote on cloture.
I ask unanimous consent that, with
respect to the time limitations in con-
nection with that extraneous matter,
that order remain as was, but that the
discussion of the extraneous matter
follow, rather than precede, final
action on the pending measure.
The PRESIDING OFFICER. (Mr.
LEvIN). Is there objection? Without
objection, it is so ordered.
Mr. BYRD. Mr. President, this
would mean that tomorrow morning
the Senate would proceed with further
votes on amendments to this matter
and cloture, if there be further votes
on amendments.
Now, Mr. President, it is my under-
standing that there are two, possibly
three amendments, that remain on the
other side of the aisle to be called up.
Let me put the request.
First of all, I ask unanimous consent
that on the not more than three re-
maining amendments, that there be a
time limitation on each of those
amendments of 10 minutes to be
equally divided and controlled in ac-
cordance with the usual form; that no
amendment to any one of the amend-
ments be in order; provided further
that the amendments be discussed this
evening and that the votes be stacked
for tomorrow morning, beginning at
9:30 a.m., and that the first /*oilcan
vote be a 30-minute rollcall vote; that
the time on each of the two succeed-
ing amendments be limited to 10 min-
utes each in view of the fact that they
would be stacked and back-to-back
votes; that the vote on cloture then
immediately occur, that if cloture is
invoked the Senate then proceed im-
mediately to the vote on final passage
of the bill without further amendment
or debate or motion of any kind, and
that the motion to reconsider?that
there be no debate on that motion,
?and that paragraph 4 of rule XII be
waived.
Let me put that request for the
moment.
Mr. GRAMM. Reserving the right to
object, Mr. Leader, there are amend-
ments that have been filed that meet
the germaneness rule. I think those of
us who have been concerned about the
bill have had some amendments adopt-
ed by unanimous consent that have
not been debated. I think we would
like to go back and look tonight and in
the morning at where we stand on the
bill. It would be very difficult tonight
to decide whether to go forward with
any additional amendments without
going back and making that review.
Mr. BYRD. I understand what the
distinguished Senator is saying. I with-
draw that request. Let me present an-
other request.
Mr. President, I ask unanimous con-
sent that there be no more than three
amendments in order after this
evening, that those three amendments
be the type of amendments that would
be in order postcloture, that the
amendments each be limited to 10
minutes to be equally divided in ac-
cordance with the usual form, that at
9:30 a.m. tomorrow the Senate vote on
cloture, that that be a 30-minute roll-
call vote with the call for the regular
order to be automatic at the conclu-
sion of the 30 minutes and that, upon
the disposition of the not more than
three amendments, all of which are to
be amendments that would qualify
under the rules postcloture, the vote
then occur on final passage immedi-
ately without further amendment,
debate, or motions?let me modify the
request. Following the disposition of
the three aftermentioned amend-
ments, there be 20 minutes of debate
to be equally divided between Mr.
KENNEDY and--
Mr. GRAMM. Mr. Leader, could we
have that on each side? I know there
will be four or five people on this side.
Mr. BYRD. That there be 40 min-
utes to be equally divided on the
debate following the three aforemen-
tioned amendments; the time to be
equally divided in accordance with the
usual form; that the vote then occur
without further motion, amendment,
debate, action of any kind on final pas-
sage; no time on the motion to recon-
sider and upon the final disposition,
therefore, of the bill; that the 4 hours
of debate to be controlled by the dis-
tinguished Republican leader, 1 hour
to be controlled by this Senator on the
extraneous matter, occur; after which
4 hours, plus 1, if all time is used or
upon the yielding back thereof, the
Senate proceed immediately to the
consideration of the intelligence au-
thorization bill.
Mr. PRYOR. Mr. President, reserv-
ing the right to object.
The PRESIDING OFFICER. The
Senator from Arkansas.
Mr. PRYOR. And I hope I will not
object. I may.
Mr. President, am I to understand
from the majority leader and the dis-
tinguished acting Republican leader
that we are going to have probably
one more rollcall vote this evening on
March 2, 1988
the sense-of-the-Senate resolution of-
fered by the Senator from Ohio, Sena-
tor METZENBAUM; then we will come in
tomorrow, have votes, probably three
or four on this legislation now pend-
ing, and then have a 4-hour special
order--
Mr. BYRD. Actually, it amounts to
5.
Mr. PRYOR. A 5-hour special order;
that is what it amounts to. And then
after that, we will have probably a
vote on the Intelligence Committee
authorization?
Mr. BYRD. Yes.
Mr. PRYOR. If this is true, I object.
Mr. BYRD. Mr. President, I hope
the Senator will not object. May I
point out that if the Senator objects,
the Senators over here can take time
on this bill. There is nothing to keep
them from it prior to cloture. They
can take time on this bill after the
Pastore rule has run its course on the
morrow, and they can take, not only 4
hours, they can take 6 hours, 7 hours,
8 hours of time under the rules of the
Senate.
I would like for this cup to pass from
me, but it is not going to. There are
Senators on this side who want to say
some things, and they are entitled to
that. I suppose, I do not know, I may
have to say a few words myself. I will
try to restrain myself as much as pos-
sible. But I hope the Senator will not
object because this really is something
that has been worked out laboriously
and in the long run it will save the
time of the Senate; I assure the Sena-
tor of that.
Mr. SIMPSON. Mr. Presjdent, I
think there is one other element that
might be helpful to the Senator from
Arkansas, that if we do not finish to-
morrow with the intelligence authori-
zation, we will deal with that Friday
morning. There is no question that we
will finish it then. We will also have a
rollcall vote Friday morning on the
Executive Calendar, William F. Burns.
So I would think that if we are al-
lowed to go forward like this, we will
-finish our work on?maybe not likely
at all tomorrow night on the intelli-
gence authorization, and go out at a
reasonable hour, I would trust tomor-
row evening, and then Friday deal
with the intelligence authorization
and then complete that in midafter-
noon and go on with laying down?or
if it is the majority leader's intention
to lay it down?the House version of
Price-Anderson.
Mr. BYRD. Price-Anderson.
Mr. PRYOR and Mr. EXON ad-
dressed the Chair.
The PRESIDING OFFICER. The
Senator from Arkansas.
Mr. PRYOR. Mr. President, I would
like to ask the leaders and the manag-
ers of this bill if it is conceivable that
a slight amendment may be made.
That is, before we get to the "sensitive
extraneous matter," the 5-hour special
order, that we do the Intelligence
Committee legislation. It is of time es-
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March 2, 1988 CONGRESSIONAL RECORD SENATE
military departments, the Director of
NSA. That is nice.
We are at 20 minutes to 9, and this is
the third attempt to try to deal with
preemployment testing. We know that
genesis of this. We establish under
DOD and NSA careful kinds of re-
views, where a polygraph is part of a
range of different investigative tech-
niques, where people are trained well,
are limited to two tests a day, and it
has value. But to try to take that
thought and graft it on to this pro-
gram, at this hour of the night, makes
no sense whatever.
I reserve the remainder of my time.
Mr. GRAMM. Mr. President, how
much time do I have remaining?
The PRESIDING OFFICER. The
Senator from Texas has 2 minutes re-
maining.
Mr. GRAMM. I yield myself 1
minute.
Mr. President, the distinguished
Senator from Massachusetts is so con-
cerned about the Federal Government
reaching down into the private sector
and setting standards that he wants to
outlaw tests altogether.
This amendment simply takes the
highest standards set by the Federal
Government and says that if the pri-
vate sector complies with those stand-
ards, it still has to meet all existing
State standards. But we are defining
the highest level of Federal standards
in terms of application, in terms of the
test and qualifications of those admin-
istering the test.
So we have a pure and simple vote
here on State's rights. The Federal
Government can set the standards
that have to be applied in the private
sector, but the States determine
whether the private sector can use
those standards to administer the test.
The argument that this is overreach-
ing by the Federal Government, when
the bill denies the ability to use tests
for prescreening, period, I think is dis-
ingenuous.?
I yield 1 minute to the distinguished
Senator. from Indiana, and I reserve
the remainder of my time.
Mr. QUAYLE. Mr. President, this
amendment is very straightforward. It
is basically an antidouble standard
amendment. We have two different
standards, one for the public sector
and one for the private sector.
We have heard all along the Senator
from Massachusetts and others saying,
"We don't want those $15 polygraphs.
We don't want those fly-by-night poly-
graphers in there."
Well, we are not going to have it
with this amendment, because they
have to meet the very high standards
that you have to have to a poly-
grapher for the Government. We are
saying it is ok to do it for the Govern-
ment if you meet certain high stand-
ards.
We are saying, OK, we will meet
those standards. We will have the high
tests. We will have the high caliber.
And then we are going to say if you
met those standards, it is OK to do it
for the Government. Then it will be
all right to do for the private sector.
This gets away from the double
standard that is in this legislation. It
is a very straightforward situation. It
gets to the point where we are going to
do away with the $15 polygraphs and
have the high-claSs ones which they
say is OK.
The PRESIDING OF.VICER. The
Senator's time has expired.
Mr. KENNEDY. As much as the
Senator from Indiana and the Senator
from Texas would like to believe it,
the amendment does not do it. It
refers to the directive. The various
provisions that are followed in the
DOD and NSA are here in the regula-
tions and standard _operating proce-
dures.
Now, the fact is the members of the
Army and the military forces ought to
be doing other things than training
guards and security officers for Stop
and Shop and'Wal-Mart.
You have it right there, and it just
says it authorizes the use. Here you
are going to have it.
I mean, let us be realistic. We under-
stand that the Department of Defense
having reviewed this and studied it has
established procedures which they
think are important and useful in
terms of important national security
questions.
We know that is considerably more
than even is required in the special cir-
cumstances of this bill.
And, Mr. President, I am surprised
quite frankly at two members of the
Armed Services Committee who are fa-
miliar with this issue. I have been in
the deliberations on this issue on that
committee conference report. We have
debated and discussed this issue with
the Senator from New Mexico about
the numbers that we- are going to
permit ,in terms of it. And to make
light of this kind of a procedure, I
think, is unfortunate indeed.
- Mr. President, I move to table the
amendment, and I ask for the yeas and
nays.
Mr. GRAMM. Do I not have a little
time left, Mr. President?
The PRESIDING 0.e.FICER. The
time of the Senator from Texas has
expired.
Mr. GRAMM. Mr. President, I send
a modification of the amendment to
the desk.
Mr. KENNEDY. Mr. President, I
move to table--
Mr. BYRD. Mr. President, there was
action taken on this amendment by
virtue of the time agreement.
Mr. KENNEDY. I move to table.
Mr. BYRD. The Senator needs
unanimous consent to modify the
amendment.
The PRESIDING OFFICER. The
Senator needs consent to modify.
Mr. KENNEDY. I move to table
amendment.
Mr. GRAMM. I ask for the yeas and
nays.
S 1731
The PRESIDING OFFICER. The
Senator's motion to table is not in
order.
Mr. KENNEDY. I yield back the re-
mainder of my time and move to table
and 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 now on the amendment.
The yeas and nays were ordered.
Mr. KENNEDY. I move to table.
The PRESIDING OFFICER. The
motion to table is now in order.
The question is on agreeing to the
motion to lay on the table the amend-
ment of the Senator from Texas.
On this question, 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], the Senator from Iowa [Mr.
HARKIN], the Senator from Hawaii
[Mr. INOUYE], the Senator from Illi-
nois [Mr. Srmox], and the Senator
from Mississippi [Mr. STENNIS], 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. Dots] and
the Senator from Idaho [Mr. SYmms],
are necessarily absent.
The PRESIDING OFFICER. Are
there any other Senators in the Cham-
ber desiring to vote?
The result was announced?yeas 57,
nays 35, as follows:
[ltollcalI Vote No. 40 Leg.]
YEAS-57
Adams
Armstrong
Bentsen
Bingaman
Boren
Boschwitz
Bradley
Bumpers
Burdick
Byrd
Chafee
Cohen
Conrad
Cranston
D'Amato
Danforth
Daschle
DeConcini
Dixon
Dodd
Domenic!
Durenberger
Evans
Exon
Ford
Glenn
Hatch
Hatfield
Heinz
Hollings
Humphrey
Johnston
Kennedy
Kerry
Lautenberg
Leahy
Levin
Matsunaga
Melcher
Metzenbaum
Mikulski
Mitchell
Moynihan
Packwood
Pell
Proxmire
Reid
Riegle
Rockefeller
Sanford
Sarbanes
Sasser
Shelby
Specter
Stafford
Weicker
Wirth
NAYS-35
Baucus Helms Pryor
Bond Karnes Quayle
Breaux Kassebaum Roth
Chiles Kasten - Rudman
Cochran Lugar Simpson
Fowler McCain Stevens
Garn McClure Thurmond
Graham McConnell Trible
Gramm Murkowski Wallop
Grassley Nickles Warner
Hecht Nunn Wilson
Heflin Pressler
Biden
Dole
Gore
NOT VOTING- -8
Harkin Stennis
Inouye Symms
Simon
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S 1730 CONGRESSIONAL RECORD ? SENATE March 2, 1988
closing. The reason is the possible passing of
bill SB 1904.
Please permit me to explain.
If all people were honest and told only the
truth, polygraphs would never be necessary
and I would have no dilemna. But although
I have interviewed at least 30,000 applicants
(out of over 40,000 applications)?there is
absolutely no way for me to judge who is
telling the truth and who is not.
So many applicants will tell you with
great conviction that they are telling you
the truth; yet thoroughly lie. I have person-
ally seen it again and again and again?so
many times!
This is why there is absolutely no way to
bring in honest, drug-fee employees without
a polygraph program!
About 90% of all applicants who apply for
employment with us have used illegal drugs.
This is the prime reason for our polygraph
policy.
I fully understand that not all examiners
are equal, and yes, errors are made (in my
experience, however, less than one percent).
But using polygraph examiners is costly, so
I have investigated every other possibility
for determining truthful answers on appli-
cations.
Nothing comes close.
Some people who oppose polygraphs have
not experienced first hand what I have seen
in my 25 years of its use. I know both the
good and the bad. And the good, and the po-
tential good, far outweighs the bad.
Wouldn't it be a wise idea, then, for our
government to direct efforts toward improv-
ing the best method that exists now to
screen out cocaine sellers, cocaine users, and
people who regularly steal or harm others?
Alternative methods -like putting people in
jail have not worked too well in reducing
sales of drugs yet. Law enforcement agen-
cies have also spent enormous sums of
money and manpower, but drug use is still
strong.
However, our local police and sheriff de-
partments spend a lot of time and effort in
conducting background investigations on ap-
plicants, but still use polygraph examina-
tions; becaue it's worth it to them. So why
not permit private industry to continue to
do the same?we generally see excellent re-
sults every day. The expenses are ours
alone.
Look at the damage firearms do. If we
permit almost anyone in America to possess
firearms for protection, why can't business
be allowed to continue to use polygraph for
its protection? It certainly is less damaging.
Complaints have come from some who
have been examined. It is, of course, true,
that this certainly must be addressed. There
is no question that examiners who are not
fully qualified should be given the opportu-
nity to improve or be removed. Twenty
years ago, physicians made more mistakes
than they do today. They have been practic-
ing medicine for how many years-1000,
2000? Polygraphs run about 97% accuracy,
nationwide, but how old is their profession-
60 years, 40 years? Why not ask the indus-
try to raise its standards?
Then it would be easier to take a look at
another side of the coin. Question those
who have been examined and are pleased.
Consider the failures, but also explore the
successes.
Ask our own employees what they think
about polygraphs. I invite you to come and
ask each and every one if they would prefer
for us to give up our polygraph program.
Ask employees of other businesses all over
America who use the polygraph also?serv-
ice stations; drug, convenience and depart-
ment stores; hotels and motels; super
market, insurance and trucking companies;
banks?would they like polygraphs discon-
tinued?
Our reason for the polygraph is very
simple, but serious. You fly and drive in
from all over the world to eat with us, and
we are responsible to have the nicest em-
ployees serve you the best food. When you
tour our facilities and speak with our em-
ployees, we want you to enjoy yourself.
People continuously visit our kitchens and
often comment on the niceness of our em-
ployees.
In fact, many applicants have applied to
us because of our reputation for being a nice
place to work. Our restaurant is like a
family, and my job is not only to please our
customers, but also to provide my employees
with a safe and enjoyable place to work. Hot
stoves, hot fryers, and kitchen work pres-
sures are not conducive for an employee to
come to work "high" on drugs or alcohol.
Many employees have worked with us for
over 20 years, and I have a definite obliga-
tion to them to employ other honest, drug-
free, quality people to work alongside them.
That does not mean discrimination. We just
prefer to employ only nice people like you
would like to hire yourself?like a babysitter
or maid who you would willingly trust to
leave in your home when you were not
there.
If you could experience the hundreds of
times that the polygraph saved us grief, you
probably would also agree to enhance it; not
destroy it Like the applicant for our farm
who had already "raped two women" (un-
known to the law, and not mentioned in his
application, who acknowledged this during
the pre-employment polygraph examina-
tion). My wife and young son and daughter
worked on our farm at this time (we raise
vegetables for our restaurant).
Another applicant's daytime employment
was to dispose ("get rid of") murdered, dead
bodies (a factual case, but also not men-
tioned in his application).
And the lovely young applicant, who was
awaiting trial for possession of 24 pounds of
marijuana, denied any contact with drugs in
her application.
Another applicant had been a "paid assas-
sin." (He had never mentioned that in his
application either.)
The above may be extreme examples, but
these come to mind quickest. Most appli-
cants lie about their involvement with
drugs. (All who take our polygraphs have al-
ready been screened and interviewed first
and seemed fine.)
Let's consider the positive side. I am very
proud of the fact that I have helped many
people give up drugs?or certainly reduce its
use. Our polygraphing has been a great as-
sistance in helping our employees improve
themselves, and many who were not em-
ployed because drug use gave it up and re-
turned to be hired later. Being able to ask
them, "may we check you again?" permits
this idea to work. The ability to give them a
second chance is made possible only because
of the polygraph program.
We have hired many employees who
promised to never use illegal drugs again,
and many did stop.
Wouldn't it be a great boon if all employ-
ees used polygraphs as we do? Drug use
would have to decease.
A work environment where all employees
are polygraphed has to be the best work en-
vironment there is; not only do you feel
much safer in it, but once you pass the poly-
graph, you are a prouder person because of
It. If you could show me a method that
works better than polygraph to help me
hire better quality employees without dis-
crimination, I certainly would use it.
Please oppose bill SB 1904, and allow us to
employ only honest, drug-free people.
Please do not destroy the best tool many of
us have for providing you, our customers,
with quality employees.
I know that you and our other legislators
and government officials work in the best
interests of every' citizen, and I thank you
for permitting me to share my experiences
and thoughts with you.
Very respectfully yours,
BERN LAXER.
Mr. GRAHAM. Mr. President, I have
been looking for this amendment. I am
pleased that my colleague and name-
sake from Texas has offered it.
I urge that those who accept the
need for Federal involvement in stand-
ards also be receptive to the fact that
there is legitimate concern on the part
of employers to be able to utilize for
their own interests, where their inter-
ests coincide with the interests of the
prospective employee, in being honest,
fair, reliable, and credible, to be able
to use this as a piece of information. I
suggest that the standards set out in
this amendment by the Senator from
Texas achieve that purpose, and I urge
its adoption.
The PRESIDING OFFICER (Mr.
PRYOR). The time of the Senator has
expired.
Mr. KENNEDY. I yield myself 5
minutes.
Mr. President, if I may have the at-
tention of the Senator from Texas, we
have heard a lot of amendments
around here, and this is the most cock-
amamy amendment we have seen
during this whole debate. This is what
he has said:
Nothing in this act shall prohibit an em-
ployer from administering a polygraph test
to an employee or prospective employee if
the test is administered in accordance with
Department of Defense directive. . . .
Who is going to decide, Mr. Private
Company, what your polygraph test is
going to be? It is going to be the In-
spector General, the Department of
Defense, authorized use of polygraph
examinations.
You talk about the Federal Govern-
ment and the private sector. You are
going to have the Secretary of De-
fense, the IG, the Department of De-
fense, right here?authorizing the use
of polygraph examination.
Do you want to know what the train-
ing program is going to be? Page 7:
The Secretary of the Army shall es-
tablish a manager retraining program.
Boy, you talk about the Federal
Government reaching right down in
terms of the private sector. What in
the world are we doing?
The interesting point is that this is
not even what DOD uses. DOD uses
this along with the regulations and
the standard operating manual proce-
dures. That is not the whole program.
You want the long arm of the Federal
Government deciding, in every one of
these private industries, what they are
going to do about polygraph training,
waivers. There are 2 million tests a
year in the private sector. You want a
waiver. Who do you go to? You go
right down to the Secretaries of the
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March 2, 1988 CONGRESSIONAL RECORD ? SENATE
Mr. GRAMM. Excuse me. I just re-
membered the distinguished other
Senator GRAHAM wants to speak on
this as well.
Mr. KENNEDY. That is all the more
reason to keep it to 10 minutes.
Mr. GRAMM. We could have 10
minutes. If the distinguished Senator
from Massachusetts wants 5 minutes,
we have no objection.
Mr. KENNEDY. That is awfully
nice. Mr. President, I am always glad
to hear both of my good friends and
colleagues. If they make an overly, per-
suasive case, let us do it 20 minutes
equally divided, and I will try to move
it along.
Mr. BYRD. Mr. President, I ask
unanimous consent it be 20 minutes
equally divided on this amendment,
with no amendment in order thereto.
Does this accommodate the distin-
guished Senator from Florida?
Mr. GRAHAM. Yes, it does.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BYRD. Mr. President, I ask
unanimous consent that I may proceed
for 2 minutes without the time being
charged.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BYRD. Mr. President, Mr. METZ-
ENBAUM plans to call up an amendment
this evening.
Mr. President, I wonder if we could
agree, if the Senator would agree, on a
10-minute limitation on the amend-
ment by Mr. METZENBAUM, 5 minutes
to Mr. DODD and 5 minutes to Mr.
METZENBAUM.
Mr. METZENBAUM. No objection.
Mr. DODD. I have no objection to
that.
Mr. BYRD. Mr. President, also 5
minutes to Mr. HEINZ; with no amend-
ment in order to the amendment.
The PRESIDING OFFICER. Is
there objection? Without objection, it
is so ordered.
Mr. BYRD. Mr. President, I ask
unanimous consent that the amend-
ment by Mr. METZENBAUM follow the
amendment by Mr. GRAMM.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BYRD. Mr. President, I yield
the floor.
The PRESIDING OFFICER. The
Senator from Texas.
AMENDMENT NO. 1620
Mr. GRAMM. Mr. President, I have
been so moved in listening to the pas-
sionate arguments of the distinguished
Senator from Massachusetts that I
have offered this amendment. This
amendment takes the Department of
Defense directive as to how a poly-
graph examination must be given and
the provisions that govern those who
administer the test. We have heard at
great length as to how the Govern-
ment is so efficient that they adminis-
ter the test in 8 hours, and the private
sector does it in 15 minutes, one of the
miracles of American Government.
This amendment says that if the pri-
vate sector follows the Department of
Defense directive, that they then Can
use the polygraph as a tool to protect
the young, to protect the airline pas-
senger, to protect those that are in
sensitive areas that might be affected
negatively.
I ask my colleagues to look closely at
this amendment. This amendment pre-
serves States' rights, except that it
sets the highest existing Federal
standard for those who employ the lie
'detectors within the ,private sector.
Remembering that over 40 States have
already set out procedures, we pre-
empt only those procedures in terms
of the quality of the test and the qual-
ity of the tester, but we preserve the
ability of the private sector to use
such test in the interest of trying to
promote the public welfare.
Mr. President, there is a great para-
dox that we exempt Government in
this bill. We exempt those riding in
the wagon. We say they can use the
polygraph but the people that are
pulling the wagon, earning the
income, paying the taxes, making the
whole Government possible are effec-
tively precluded except under the
most limited circumstances.
Perhaps the distinguished Senator
from Massachusetts is right. Maybe
the quality of private testing is inad-
equate. This deals with that problem.
This is a States' rights issue with a
Federal preemption which sets the
highest standards that exist in the
Federal Government on the testers
and the test.
I urge my colleagues to support this
amendment. I reserve the balance of
my time. And after the distinguished
Senator from Massachusetts has
spoken, I will yield 5 minutes to the
distinguished Senator from Florida.
The PRESIDING OFFICER. Who
yields time?
Mr. GRAMM. Mr. President, I yield
5 minutes to the distinguished Senator
from Florida.
The PRESIDING OFFICER. The
Senator from Florida is recognized.
Mr. GRAHAM. Mr. President, I sup-
port the basic premise of this bill
which is that there should be Federal
standards, Federal conditions under
which polygraphs are utilized.
I do not believe that requires an ab-
solute prohibition or an absolute pro-
hibition subject to industry-by-indus-
try exception of employment of pro-
spective employers. Our State of Flori-
da, and a number of other States in
this Union, have high mobility in their
populations. In areas where it is virtu-
ally impossible to make a judgment
based on community reputation, read-
ily available other sources of informa-
tion employers have found that the
use of these examinations is an appro-
priate element of reaching the em-
ployment judgment.
I start from the premise that an em-
ployer who is already constrained by
other provisions, and will be further
constrained by the standards in this
act from using these devices for dis-
criminatory or other invidious pur-
S 1729
poses, is not going to be spending the
money, taking the time, investing the
effort, to have a polygraph adminis-
tered, unless that employer feels that
It has some value. It has significant
value in Many instances in reaching
that preemployment decision as one
element of the total information
which an employer would utilize.
An employer bears a legal responsi-
bility for the act of his employee. One
important function the polygraph can
serve is as a tool?and I underscore "a
tool"?available to reduce the expense,
the legal exposure, and the threat to
other employees which the employ-
ment of a relatively unknown person
requesting employment would be,
where that use of the polygraph could
be of assistance in identifying those
who are inappropriate.
We have already recognized the ap-
propriateness of preemployment use
of polygraphs by the number of areas
which have been expanded by amend-
ments here today, in which we have
provided an exemption; including an
exemption to all Government employ-
ees.
I believe that by applying this high-
est standard available, the standard of
the U.S. Department of Defense, to
the applicator and the equipment
used, we have protected the interests
of those persons who would be the
subject of a polygraph examination,
but have made it available where the
employer feels that it is a necessary
and appropriate part of the informa-
tion package in preemployment. ,
Mr. President, I have a letter which
I have received from a leading firm in
our State which is in the food busi-
ness, a business that is not of the
nature of high security, of nuclear
powerplants or security guards, but a
business which requires a high stand-
ard of its employees; a business that,
under the best of circumstances, has a
high turnover?in many of the com-
munities in our State, we have heavy
transit and tourist business, even more
than would be true in most places in
this Nation?has found that the use of
polygraph is an important tool in
reaching that decision.
Mr. President, I ask unanimous con-
sent to have this letter, dated Febru-
ary 29, from Mr. Bern Laxer, of Bern's
Steak House, in Tampa, FL, printed in
the RECORD.
There being no objection, the letter
was ordered to be printed in the
RECORD, as follows:
BERN'S STEAK HOUSE,
Tampa, FL, February 29, 1988.
Hon. BOB GRAHAM,
U.S. Senate, Washington, Da
DEAR SENATOR GRAHAM: My wife and I own
a restaurant that employs 243 people and is
considered by our city, fathers to be an asset
to our community. In fact, when a rumor
reached one of the editors of our local
Tampa Tribune that our restaurant was
sold, the front page of the paper was held
open until the editor located me to learn
whether the rumor was true. Of course it
was not. Yet my thoughts (for the first time
in our 35-year existence) are to consider
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S 1728 CONGRESSIONAL RECORD ? SENATE
The PRESIDING OFFICER. The
Senator from Massachusetts has 2
minutes and 8 seconds.
Mr. KENNEDY. These are the quali-
fications that are so objected to: At
least be 21 years of age, has complied
with all required laws in the State,
successfully completed a formal train-
ing_course regarding the use of poly-
graph tests?we do not say what the
test is?completed an internship for
not less than 6 months, renders an
opinion in writing, and maintains re-
ports and records for a minimum of 3
years. These are the objectionable
standards.
It is difficult for me to understand
how intrusive the long arm of the Fed-
eral Government is in that area, that
they be 21 years old and have 6
months of training and comply with
State laws. We do not talk about the
course. We say 6 months. You must
render any opinion in writing.
If everybody thinks that is the long
arm of the Federal Government, I find
it difficult to understand.
Mr. President, I do not know how
much time I have.
The PRESIDING OFFICER. The
Senator from Massachusetts has 40
seconds; the Senator from Mississippi
has 2 minutes 50 seconds.
Mr. KENNEDY. I reserve the re-
mainder of my time.
Mr. COCHRAN addressed the Chair.
The PRESIDING OFFICER. The
Senator from Mississippi.
Mr. COCHRAN. Mr. President, I am
not going to prolong the debate. I
think we have discussed the issue so
that Senators understand what is
being questioned here by this amend-
ment. Frankly, I was hoping that we
would get a majority vote in favor of
the substitute that was offered in the
form of the previous amendment, but
we did not. We had 29 votes. Some-
body changed their vote at the end.
But the fact is that was the better
amendment. This amendment is tar-
geted to one objectionable provision
that bothers this Senator. Obviously,
it does not bother a majority of the
-Senate, so I am not going to insist that
we belabor this point. But I did want
to make the point. I think we continue
to make a mistake by substituting the
judgment of Washington officials for
that of State officials. That is the
point I am making, Mr. President.
I yield back the remainder of my
time.
Mr. KENNEDY. Mr. President, I will
just take 30 seconds.
The kind of requirements that we
have here are the minimum require-
ments of any court reporter in the
country. Is that intrusive? It is diffi-
cult for me to understand why there
be such objection. It is established in
the Federal legislation. I understand
and respect the objection of- the Sena-
tor from Mississippi to this legislation,
but I am prepared for a voice vote.
I reserve the remainder of whatever
time I have.
The PRESIDING OFFICER. All
time has expired. The question is on
agreeing to the amendment of the
Senator from Mississippi.
The amendment (No. 1617) was re-
jected.
AMENDMENT NO. 1618
(Purpose: To provide for national security
exemptions)
Mr. GRAMM addressed the Chair.
The PRESIDING OFFICER. The
Senator from Texas.
Mr. GRAMM. I send an amendment
to the desk and ask for its immediate
consideration.
The PRESIDING OFFICER. The
Clerk will report.
The assistant legislative clerk read
as follows:
The Senator from Texas [Mr. GsAmml
proposes an amendment numbered 1618.
At the appropriate place, add: "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 fed-
eral government department, agency or pro-
gram where a security clearance is required
by the federal government for such expert
or consultant and such expert or consultant,
as a result of the contract, has access to
classified and sensitive government informa-
tion."
Mr. GRAMM. Mr. President, this
simply corrects what I perceive to be
an error in the bill. Contractors work-
ing for the Department of Defense
and the Department of Energy, the
National Security Administration,
CIA, and FBI that are dealing with
sensitive matters and subject to lie de-
tector. This brings in such agencies as
the Drug Enforcement Administration
and the Nuclear Regulatory Commis-
sion. I understand the distinguished
Senator from Massachusetts has no
objection to the amendment.
The PRESIDING OFFICER. The
Senator from Massachusetts.
Mr. KENNEDY. Mr. President, this
has gone through a series of revisions,
and I think is an acceptable amend-
ment. I have no objection to it. I un-
derstand that the Senator from Utah
has no objection to it. So I would sup-
port the amendment.
The PRESIDING OFFICER. Is
there further debate on the amend-
ment? If not, the question is on agree-
ing to the amendment of the Senator
from Texas [Mr. GaAmml.
The amendment (No. 1618) was
agreed to.
Mr. GRAMM. Mr. President, I move
to reconsider the vote by which the
amendment was agreed to.
Mr. KENNEDY. I move to lay that
motion on the table.
The motion to lay on the table was
agreed to.
AMENDMENT NO. 1619
(Purpose: To provide a nuclear power plant
exemption)
Mr. GRAMM. Mr. President, I send
an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER.- The-
clerk.will report.
March 2, 1988
The assistant legislative clerk read
as follows:
The Senator from Texas [Mr. Gaamml
proposes an amendment numbered 1619.
On page 28, between lines 14 and 15,
Insert the following new subsection:
"(e) NUCLEAR POWER PLANT EXEMPTION.?
This Act shall not prohibit the use of a lie
detector test by an employer on any em-
ployee or prospective, employee of any nu-
clear power plant. This subsection shall not
preempt or supersede any state or local law
that prohibits or restricts the use of lie de-
tector tests."
, Mr. GRAMM. Mr. President, I am
told that so clear is the argument for
this amendment that the distin-
guished Senator from Massachusetts
is willing to accept it.
Mr. KENNEDY. Mr. President, this
Is a very limited amendment targeted
in a very specialized area which is of
enormous sensitivity. I have really no
objection to this amendment. I would
urge the Senate to adopt it.
The PRESIDING OFFICER. The
question is on agreeing to the amend-
ment of the Senator from Texas [Mr.
GRAMM].
The amendment (No. 1619) was
agreed to.
Mr. GRAMM. Mr. President, I move
to reconsider the vote by which the
amendment was agreed to.
Mr. KENNEDY. I move to lay that
motion on the table.
The motion to lay on the table was
agreed to.
AMENDMENT NO. 1620
(Purpose: To provide an exemption for use
of polygraph tests administered in accord-
ance with Department of Defense Direc-
tive 5210.48)
Mr. GRA/VIM. Mr. President, I sent
an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. The
clerk will report.
The assistant legislative clerk read
as follows:
The Senator from Texas EMr. GRAMM]
proposes an amendment numbered-1620.
On page 28, between lines 14 and 15,
insert the following new subsection:
(e) EXEMPTION FOR TESTS CONDUCTED IN
ACCORDANCE WITH DOD DIRECTIVE.?Noth-
ing in this Act shall prohibit an employer
from administering a polygraph test to an
employee or prospective employee if the
test is administered in accordance with De-
partment of Defense Directive 5210.48 pub-
lished on December 24, 1984.
Mr. BYRD. Mr. President, would the
distinguished Senator yield?
Mr. GRAMM. I am happy to yield.
Mr. BYRD. Would the Senator
agree to a time limitation on this
amendment?
Mr. GRA/VIM. It is my understand-
ing that we have 10 minutes on each
side. I would be willing to cut that
down to 5 minutes.
Mr. KENNEDY. Let us keep the 10
minutes evenly divided.
The PRESIDING OFFICER. There
is no time agreement on this, the
Chair would advise.
Mr. BYRD. Could the Senator make
it 10 minutes?
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March 2, 1988 CONGRESSIONAL RECORD ? SENATE
The PRESIDING OFFICER. The
clerk will report.
The assistant legislative clerk read
as follows:
The Senator from Mississippi [Mr. COCH-
RAN) proposes an amendment numbered
1617.
Mr. COCHRAN. Mr. President, I ask
unanimous consent that further read-
ing of the amendment be dispensed
with.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
The amendment is as follows:
Beginning on page 33, strike out line 10
and all that follows through page 35, line 7.
Mr. BYRD. Mr. President. if the
Senator will yield, I ask unanimous
consent that I may proceed for 2 min-
utes without the time being charged
against the Senator from Mississippi.
The PRESIDING OFFICER. Is
there objection? Without objection, it
is so ordered.
Mr. BYRD. Mr. President, I have
been discussing this with the distin-
guished Republican leader. It would be
that we vote on cloture, say, at 9:30 to-
morrow morning, and then proceed to
dispose of this bill before we have the
lengthy discussion which we had earli-
er talked about, following which the
Senate would take up the intelligence
authorization bill.
In that way, Senators would not
have to wait until 2 o'clock tomorrow
to vote on cloture and we would put
this lengthy discussion off until after-
ward, following the action on this bill.
The distinguished Republican leader
may wish to respond now, but that is
what I am proposing, if I can change
the order.
Mr. SIMPSON. Mr. President, I
think that might be acceptable to
those of us on this side of the aisle.
Nothing else would change with
regard to the order, the 4 hours under
my control and the 1 hour under the
majority leader's control.
Mr. BYRD. Yes.
Mr. SIMPSON. And going to the in-
telligence authorization bill right after
that.
Mr. BYRD. Yes.
Mr. SIMPSON. Then we would com-
plete cloture and any amendments
suitable under postcloture, and then
go through the scenario, with the clo-
ture vote at 9:30.
Mr. BYRD. Yes. The first thing to-
morrow would be the cloture vote. As-
suming that that cloture vote carries,
of course, the pending business would
be the pending business to the exclu-
sion of all other business until com-
pleted, following which we would do
the 4 hour-1 hour talkathon, mini
talkathon.
Following that, we would go to the
intelligence authorization bill.
Mr. SIMPSON. Mr. President, that
is not being proposed now as a unani-
mous-consent request or an agree-
ment. I would suggest that we go for-
? ward with the next amendment, and I
will get the information for the major-
ity leader.
Mr. DANFORTH. Mr. President, will
the Senator yield?
Mr. BYRD. Mr. President, the dis-
tinguished Senator from Mississippi
has the floor.
Mr. COCHRAN. I yield.
Mr. DANFORTH. With regard to
the program for tomorrow, I think
this might be a good occasion for us to
think about stacking votes. Most of
the votes we have had in the last hour
or so have been following about. 10
minutes of debate. It seems that Sena-
tors might be willing to stay around
tonight and debate their amendments
and then have them voted on tomor-
row.
Mr. BYRD. I would certainly be
happy to consider that. It may be that
the amendments are running down
pretty fast. I do not know how many
remaining amendments there are.
There is one by Mr. METZENBAUM.
That may or may not be a voice vote.
Mr. METZENBAUM. It may not be.
We are trying to see if we can post-
pone the World Bank amendment.
Mr. BYRD. Let us go forward with
this amendment and we will find out.
Mr. COCHRAN addressed the Chair.
The PRESIDING OFFICER. If the
Senator will suspend for a moment so
that the record is clear, on this amend-
ment there is a 10-minute time limit
equally divided between the Senator
from Mississippi and the manager of
the bill.
Mr. COCHRAN. I thank the Chair.
Mr. President, the amendment I
have sent to the desk is designed to
delete a provision of the committee
bill that provides authority to the Sec-
retary of Labor to develop and pro-
mulgate Federal standards for licens-
ing polygraph examiners.
The previous amendment I offered
in the nature of a substitute assumed
the Senate would probably vote to
have a Federal preemption in the es-
tablishment by the Secretary of Labor
of qualifications for polygraph exam-
iners but I frankly did not like that.
As a member of the committee, I can
remember the day that we reported
the bill out; I was sitting there waiting
for -us to get a quorum to transact
business, and I made the mistake of
reading the bill. I probably would not
be as troubled as I am tonight if I had
not read it. But I found that the pre-
sumption the committee was making
was that Federal decisions made here
in Washington about the qualifica-
tions of polygraph examiners were of
a higher quality than decisions made
on the same subject by State govern-
ment officials.
I just do not buy that. I think it is a
mistake for us to assume bill after bill,
program after program, that Washing-
ton decisions are necessarily better
than State decisions.
In my State we have had a poly-
graph examiner bill on the books since
1968, and it has been working fine. But
now, suddenly, the Federal Govern-
ment decides that it can do it better.
S 1727
I do not know that is necessarily
true. This amendment simply says
that the States should be allowed to
establish their own criteria for licens-
ing polygraph examiners. We do not
have a Federal preemption on the li-
censing of medical doctors. We leave
that up to the States. In profession
after profession we leave to the States
the decision as to who is qualified to
do the job. Licensing is a matter of
State law, and here we are departing
from that principle, and I object.
I hope the Senate will vote for this
amendment and go on record as giving
credit to the careful, deliberate deci-
sions that can be made by State gov-
ernments in this area.
Mr. KENNEDY addressed the Chair.
The PRESIDING OFFICER. The
Senator from Massachusetts.
Mr. KENNEDY. Mr. President, the
Senator has objected to establishing
some reasonable standards in terms of
the administration of the various poly-
graph examinations. I have in my
hand what is established in terms of
Defense, in terms of the'CIA, in terms
of the NSA, the most important agen-
cies protecting our security. We are
not requiring that. We are requiring
less stringent standards.
If you accept this amendment, you
are accepting what is done in a wide
majority of cases, and that is the ex-
aminer gets the machine, they have
very little training, and they are in
business.
Now, either we are or are not serious
about trying to ensure that there are
some reasonable standards, not that
we have the answsers to all of them.
But what we have seen in the course
of our hearings is the kind of instance
I just described?a polygraph machine
arrives in the warehouse; they take it
out of the box; someone who has very
little understanding either about the
machine, the behavorial sciences or in-
vestigations, at least in many of the
firms, goes out and performs the test.
Now, I do not know what would be
the reasonable grounds. We did not
try to insist upon the kind of training
that is required by the DOD or by the
CIA. In the kinds of circumstances
that we permit it, we are not even re-
quiring that the people have the kind
of training we insist on at the national
level.
What we are asking for is a reasona-
ble amount of training and standards
that will ensure that at least, if they
are going to administer the polygraph,
those who are administering it meet
some reasonable standards.
Now, I believe, Mr. President, that is
not an unreasonable kind of provision.
As the committee testimony has point-
ed out, the greatest instances of abuse
are when the polygraphers do not
have that kind of training or stand-
ards.
Mr. President, how much time do I
have remaining?
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S 1726 CONGRESSIONAL RECORD ? SENATE
It has been shown that the selective
use of polygraphs reduces consumer
costs. This bill is going to outlaw it in
many instances where it has been
proven to save consumers and citizens
of this country a great deal of money.
Mr. President, the Senator from
Florida had asked me to yield him
time. I am happy to yield to the distin-
guished Senator from Florida if he
would like to be heard on this amend-
ment.
I yield 1 minute to the distinguished
Senator.
The PRESIDING OFFICER. The
Senator from Florida.
Mr. GRAHAM. Mr. President, I have
asked to see a copy of the Senator's
amendment, which I have not had an
opportunity to do. I am not certain
that the amendment that is before us
is the amendment that I wish to speak
on. I wish to speak on the amendment
that I understand you were going to
offer which would allow preemploy-
ment testing.
Mr. COCHRAN. The amendment
would do that, Mr. President.
Mr. GRAHAM. I understand you do
it in a broad bill which essentially
strikes at the principle of Federal reg-
ulation of polygraph tests as opposed
to that one issue within the current
bill, is that correct?
Mr. COCHRAN. Mr. President, if I
can answer the Senator's question, if
the polygraph is banned, it is banned
by the States under the substitute
which I have offered. The substitute
does not ban polygraphs as a matter of
law as the committee bill does. It
leaves to the States the regulation of
the use of polygraphs in the work-
place. I think that is what the Senator
from Florida supports.
Mr. GRAHAM. So I do not use your
time under any false pretenses--
The PRESIDING OFFICER. The
Senator from Florida's 1 minute has
expired.
Mr. GRAHAM. Mr. President, I ask
unanimous consent for an additional 1
minute.
Mr. KENNEDY. Mr. President, how
much time do I have remaining?
The PRESIDING OFFICER. The
Senator from Massachusetts has 1
minute and 50 seconds.
Mr. KENNEDY. I yield half of that
to the Senator from Florida.
Mr. GRAHAM. To be fair to the
Senator from Mississippi, the issue I
wish to speak to and on which I hope
you will have an opportunity to do so
is the issue of the total prohibition
which is contained in this bill on
preemployment testing which I believe
is excessive and which I believe denies
employers in certain reasonable condi-
tions and under appropriate standards
a tool which they should have avail-
able to them, if they choose to use it,
in a nondiscriminatory and acceptable
procedural manner.
I do not support an amendment
which would substitute total State
control for reasonable Federal stand-
ards in this area. So I cannot take the
floor on behalf of this basic amend-
ment. I hope that there will be an op-
portunity before this debate is over to
discuss the amendment which deals
with the specific issue that is of con-
cern to me.
Mr. KENNEDY. Mr. President, the
Senator from Mississippi quoted some
anecdotal evidence about certain in-
dustries, what was happening to them.
I think it is perhaps useful, rather
than quoting anecdotal evidence, to
look at the evidence of the FBI in the
areas of bank fraud, and embezzle-
ment. Twelve States that have a total
ban on polygraphs have 22.9 incidents
per million of bank fraud, and embez-
zlement. Now we have 12 other States
that permit the polygraph. If we were
to follow the logic of the argument of
the Senator from Mississippi, you
would think that there would be less
bank fraud, and embezzlement. But it
happens to be 33.2 incidents per mil-
lion; 50 percent higher where it is
banned entirely.
This idea that it has an impact in
the areas of bank fraud and embezzle-
ment is just not sustained, by statistics
from the Federal Bureau of Investiga-
tion. If we accept the amendment of
the Senator from Mississippi, you are
creating this false sense of security
and reality and you are effectively un-
dermining this bill.
The PRESIDING 01,1010ER. The
time of the Senator from Massachu-
setts has expired. All time has expired
at this point.
The question is on the amendment.
Mr. KENNEDY. Mr. President, I
move to table the amendment and 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 agreeing to the motion
of the Senator from Massachusetts
[Mr. KENNEDY] to table the amend-
ment of the Senator from Mississippi
[Mr. COCHRAN]. The yeas and nays
have been ordered and the clerk will
call the roll.
The Legislative Clerk called the roll.
Mr. CRANSTON: I announce that
the Senator from Tennessee [Mr.
GoaE], the Senator from Iowa [Mr.
HARKIN], the Senator from Illinois
[Mr. StmoN], and the Senator from
Mississippi [Mr. STENNIS] are necessar-
ily absent.
I also announce that the Senator
from Delaware [Mr. Brimorl is absent
because? of illness.
Mr. SIMPSON announced that the
Senator from Kansas [Mr. DOLE] is
necessarily absent.
The PRESIDING OFFICER (Mr.
DECoNen.a). Are there any other Sen-
ators in the Chamber desiring to vote?
The result was announced?yeas 65,
nays 29, as follows:
March 2, 1988
[Rollcall Vote No. 39 Leg.]
Adams -
Armstrong
Baucus
Bentsen
Bingaman-
Boren
Boschwitz
Bradley
Burdick
Byrd
Chafee
Chiles
Cohen
Conrad
Cranston
D'Amato
Danforth
Daschle
DeConcini
Dixon
Dodd
Domenici
Bond
Breaux
Bumpers.
Cochran
Garn
Gramm
Hecht
Heflin
Helms -
Hollings
Biden
Dole
YEAS-65
Durenberger
Evans
Exon
Ford
Fowler
Glenn
Graham
Grassley
Hatch
Hatfield
Heinz
Humphrey
Inouye
Johnston
Kassebaum
Kasten
Kennedy
Kerry
Lautenberg
Leahy
Levin
Lugar
NAYS-29
Karnes
McCain
McClure
McConnell
Murkowski
Nickles
Pressler
Pryor
Quayle
Roth
Matsunaga
Melcher
Metzenbaum
Mikulski
Mitchell
Moynihan
Nunn
Packwood
Pell
Proxmire
Reid
Riegle
Rockefeller
Sanford
Sarbanes
Sasser
Shelby
Specter
Stafford
Weicker
Wirth
?
Rudman
Simpson
Stevens
Symms
Thurmond
Trible
Wallop
Warner
Wilson
NOT VOTING-6
Gore Simon
Harkin ? Stennis
So the motion to lay on the table the
amendment (No. 1616) was agreed to.
Mr. KENNEDY. Mr. President, I
move to reconsider the vote by which
the motion was agreed to.
Mr. BRADLEY. Mr. President, I
move to lay that motion on the table.
The motion to lay on the table was
agreed to.
Mr. KENNEDY. Mr. President, just
from my understanding, and the con-
ditions can change, as we have all
seen, very rapidly, there is one addi-
tional amendment of the Senator from
Mississippi. I believe we can hopefully
dispose of it either one way or the
other without, perhaps, a vote, and
then there are additional amendments
of the Senator from Texas. I think
there are probably two that can be ac-
cepted. I think on the next one there
will be a requirement for a vote.
Anyone obviously has a right to
offer an amendment after that. How-
ever, it is at least my judgment at this
time that we may be within a reasona-
ble period, at least, of hopefully con-
cluding this aspect of our debate.
Then we will have the Metzenbaum-
Heinz amendment. The proponents
can describe what the condition is in
terms of the length of any debate.
Mr. President, that is the general
condition. It might alter or change,
but I think hopefully it might hold.
That is just as a matter of informa-
tion.
AMENDMENT NO. 1617
(Purpose: To remove the provisions estab-
lishing qualifications standards for poly-
graph examiners)
Mr. COCHRAN. Mr. President, I
send an amendment to the desk and
ask for its immediate consideration.
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March 2, 1988 CON
SEC. 10. DISCLOSURE OF INFORMATION.
(a) IN GENERAL.?A person, other than the
examinee, may not disclose information ob-
tained during a polygraph examiner may
disclose information acquired from a poly-
graph test, except as provided in this sec-
tion.
(b) PERMITTED DISCLOSURES.?A polygraph
examiner, polygraph trainee, or employee of
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;
or
(3) any person or governmental agency
that requested the test as authorized under
subsection (a), (b), or (c) of section 7 or any
other person, as required by due process of
law, who obtained a warrant to obtain such
information in a court of competent juris-
diction.
(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. 11. EFFECT ON OTHER LAW AND AGREE-
MENTS.
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. 12. 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.
Mr. BYRD. Mr. President, will the
distinguished Senator yield?
Mr. COCHRAN. I am happy to yield
to the distinguished leader.
Mr. BYRD. This is an amendment
on which there has been a time limit
entered of 10 minutes equally divided;
am I correct?
Mr. COCHRAN. The leader is cor-
rect: 10 minutes equally divided.
Mr. BYRD. Does the Senator intend
to ask for the yeas and nays?
Mr. COCHRAN. I suspect the yeas
and nays will be requested. I assume
the managers will be moving to table
and the yeas and nays will be request-
ed on the motion to table.
Mr. BYRD. Does the Senator want
the yeas and nays?
Mr. KENNEDY. I do not unless the
Senator does it.
Mr. BYRD. Does the Senator ask for
the yeas and nays?
Mr. KENNEDY. We are going to
vote on it.
Mr. COCHRAN. It is all right with
me to have an up or down vote or vote
on the motion to table.
Mr. KENNEDY. Then we will prob-
ably do a motion to table. I am glad to
do a voice vote. I will do-whatever any-
body wants.
Mr. COCHRAN. If the motion to
table is made, I intend to ask for the
yeas and nays.
Mr. KENNEDY. If it is up or down,
the Senator will ask for a voice vote.
GRESSIONAL RECORD ? SENA
Mr. COCHRAN. We will ask for the
yeas and nays. _
Mr. BYRD. Mr. President, there
be a rollcall vote beginning 10 minutes
from now and that will be a 15-minute
rollcall vote.
I urge the cloakrooms to so an-
nounce to Senators.
Mr. COCHRAN. I understand that
time did not get charged to my 5 min-
utes.
The PRESIDING OFFICER. The
Senator is correct.
Mr. COCHRAN. Mr. President, this
is an amendment in the nature of a
substitute.
Let me state what the amendment
seeks to do. The bill reported by the
committee bans the use of polygraphs
in screening applicants for jobs in se-
lected industries. The bill exempts De-
partment of Defense contractors, and
it exempts certain other employers.
This substitute puts all employers
on an equal footing, whether we are
talking about a drug company inter-
ested in screening applicants to see
whether they have a past history of
drug abuse--
The PRESIDING OFFICER. The
Senator will suspend. We should have
order in the Chamber so the Senator
can be heard.
Please empty the well.
The Senator from Mississippi.
Mr. COCHRAN. I thank the Chair.
The second thing the substitute
does, Mr. President, is to permit States
to regulate by meeting the standards
set by the Secretary of Labor under
the committee bill. It does not change
the effort to establish minimum stand-
ards.
I have a problem with the fact that
we are presuming standards are better
if they are established in Washington
than if they are established by a State
government. In my State, for example,
we have a good law regulating poly-
graph examiners and the use of poly-
graphs, and the law has been on the
books since 1968.
Frankly, I do not see any good
reason to jettison that law and have it
preempted by a new Federal law with-
out good cause.
What we seek by this substitute is to
change the committee bill so that it
does not ban the use of polygraphs. It
lets the States decide how they may be
used.
In the State of Massachusetts, the
State of the manager of this bill, they
have a ban and that will not be
changed by the adoption of this sub-
stitute.
This substitute permits a State to
legislate a ban if it wants to, but it
does not provide for Federal preemp-
tion in that area.
I urge Senators to adopt the substi-
tute. I reserve the remainder of my
time.
Mr. KENNEDY. Mr. President, I
yield myself 4 minutes.
I hope that this amendment will not
be accepted for a number of the rea-
TE S.1725
sons that we have outlined earlier in
the course of the debate.
One of the prime findings that we
detected is that there is a variety of
different States that have prohibitions
on polygraphs and have regulations on
polygraphers. But the fact that re-
mains is that there is an enormous
loophole in which we have seen mas-
sive abuse of the polygraph procedure
and that is in the States which have
the lesser regulation and lesser rules
there are no prohibitions and the pat-
tern and practice that is replete in the
course of our hearing record is and is
becoming increasingly true now with
the various mergers of companies and
corporations all over this country that
for people who are going to be able to
gain employment they are tested or
they enter the whole job market in a
particular area in a particular State
and they go to that area instance after
instance where there are limited re-
strictions or no restrictions or poor re-
strictions and the polygraph is abused.
That happens to be the record. That
happens to be the course of action.
And the substitute of the Senator
from Mississippi?and it is a basic, fun-
damental substitute?effectively guts
the balance that we have put in here
which prohibits preemployment but
permits the use of polygraph as one of
a range of tools?it is just one of a
range of tools?if there is reasonable
suspicion or reason to believe that
there has been some transgression or
Violation of the law.
Now, that is a balance. That is what
has been accepted in the bill. That is
what has been supported: And this ef-
fectively vitiates and Undermines that
whole process. It effectively guts the
whole bill. It will not really deal with
the kinds of excesses that today are so
evident in the use of polygraph; as I
mentioned, 2 million last year. It has
virtually doubled in about the last 3
years. It has gone to eightfold in the
last 7 years. The use of it and the
abuse of it are going right up through
the roof with all the kind of false la-
beling of individuals.
We do not prohibit the polygraph
use, but we have prescribed it in a very
narrow and limited way. The Senator
from Mississippi would undermine
that, and I think effectively gut the
bill.
. I reserve the remainder of my time.
Mr. COCHRAN. Mr. President, let
me point out that at hearings before
the Labor Committee, a representative
of motel owners testified that in 1986
polygraphs helped to reduce annual
losses in that industry from $1 million
to less than $115,000. Another witness
testified in behalf of the jewelers of
Amercia and the American Retail Fed-
eration. He stated that his company
had found, in States where there are
no restrictions on polygraphs, their in-
ventory losses are only 25 percent of
what they are in States where the
company cannot use polygraphs.
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S 1724 CONGRESSIONAL RECORD ? SENATE March 2, 1988
counterintelligence function, of any lie de-
tector 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 such Department in con-
nection with such activities.
(2) SECURITY.?Nothing in this Act shall
be construed to prohibit the administration,
in the performance of any intelligenc or
counterintelligence function, of any lie de-
tector 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 expect 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 position
in the National Security Agency or the Cen-
tral 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 Intel-
ligence 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
contractor of the Federal Bureau of Investi-
gation of the Department_ of Justice who is
engaged in the performance of any work
under the contract with such Bureau.
SEC. 8. STATE CERTIFICATION OF PLANS EXEMP-
TION.
(a) Subject to Section 9, this Act shall not
prohibit any State, or political subdivision
thereof, which, at any time, desires to
assume responsibility for development and
enforcement therein of standards relating
to the use of polygraphs by employers and
polygraph examiners, shall file a written
statement with the Secretary of Labor certi-
fying that is has adopted an administrative
plan to insure compliance with the stand-
ards of this Act. Such certification shall:
(1) identify the agency or agencies desig-
nated as responsible for administering the
plan;
(2) describe the standards contained in the
administrative plan governing polygraph ex-
aminers and the use of polygraph examina-
tions, which standards (and the enforce-
ment of which standards) shall be at a mini-
mum in full compliance with the standards
set out in section 9 of this Act; and
(3) explain the manner in which the
standards contained in the administrative
plan are being administered and enforced by
the designated agency to insure compliance
with this Act.
(b) The Secretary shall make a continuing
evaluation of each administrative plan
which has been certified as in compliance
with this Act. Whenever the Secretary
finds, after affording due notice and oppor-
tunity for a hearing, that the plan is not
being administered in a manner that insures
substantial compliance with the standards
set out in this Act, he shall notify the State
or political subdivision of his withdrawal of
certification of such plan and, upon receipt
of such notice, such plan shall cease to be in
effect.
(c) Review of a decision of the Secretary
to disapprove an administrative plan, under
this section may be obtained in the United
States Court of Appeals for the circuit in
which the State or political subdivision or
individual examiner is located by filing a pe-
tition for review with such court within 30
days after receipt of the withdrawal of certi-
fication.
SEC. 9. MINIMUM FEDERAL STANDARDS FOR POLY-
GRAPH TESTING.
Each State, or political subdivision there-
of, seeking to establish a polygraph testing
program under Section 8 of this Act, shall
certify to -the Secretary of Labor that its
program meets the following minimum fed-
eral standards?
(a) OBLIGATION To COMPLY WITH CERTAIN
LAWS AND AGREEMENTS.?The exemption pro-
vided under section 8 shall not diminish an
employer's obligation to eomply with?
(1) applicable State and local law; and
(2) any negotiated collective bargaining
agreement, that limits or prohibits the use
of lie detector test on employees.
(b) RIGHTS OF EXAMINEE.?
(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 rep-
resentative 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
(iii) 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 employ-
ment;
(ii) that any statement made during the
trest 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 examin-
ee of?
(1) the limitations imposed under this sec-
tion;
OD 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;
(ii) 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 and labor organizations;
(B) the examinee is permitted to termi-
nate the test at any time;
(C) the examiner does not ask such exam-
inee any questions (technical or relevant)
dining the test that was not presented in
writing for review to such examinee before
the test;
(D) 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 eka.minee 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 a90-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?
(i) 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.
(C) QUALIFICATION OF EXAMINER.?An indi-
vidual who conducts a polygraph test
must?
(1) be at least 21 years of age;
(2) comply with all required laws and reg-
ulations established by licensing and regula-
tory authorities in the State in which the
test is to be conducted;
_(3)(A) successfully complete a formal
training course regarding the use of poly-
graph tests that has been approved by the
State in which the test is to be conducted or
by the Secretary; and
(B) complete a polygraph test internship
of not less than 6. months duration under
the direct supervision of an examiner who
has met the requirements of this section;
(4) maintain a minimum of a $50,000 bond
or an equivalent amount of professional li-
ability coverage;
(5) use an instrument that records con-
tinuously, visually, permanently, and simul-
taneously changes in the cardiovascular,
respiratory, and electrodermal patterns as
minimum instrumentation standards;
(6) base an opinion of deception indicated
on evaluation of changes in physiological
activity or reactivity in the cardiovascular,
respiratory, and electrodermal patterns on
the lie detector charts;
(7) render 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
examinee; and
(8) maintain all opinions, reports, charts,
written questions, lists, and other records
relating to the test for a minimum period of
3 years after administration of the test.
(D) PROMULGATION OF STANDARDS.?The
Secretary shall establish standards govern-
ing individuals who, as of the date of the en-
actment 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.
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March 2, 1988 CONGRESSIONAL RECORD ? SENATE
ators in the Chamber who desire to
vote?
The result was announced?yeas 55,
nays 37, as follows:
[Rollcall Vote No. 38 Leg.]
YEAS-55
Adams
Armstrong
Baucus
Bingaman
Boren
Boschwitz
Bradley
Breaux
Bumpers
Burdick
Chafee
Cohen
Conrad
Cranston
Danforth
Daschle
Dixon
Dodd
Durenberger
Bentsen
Bond
Byrd
Cochran
D'Amato
DeConcini
Domenic!
Garn
Graham
Gramm
Hecht
Heflin
Helms
Biden
Chiles
Dole
Evans
Exon
Ford
Fowler
Glenn
Grassley
Hatch
Hatfield
Heinz
Hollings
? Humphrey
Inouye
Johnston
Kennedy
Kerry
Lautenberg
Leahy
Levin
Matsunaga
NAYS-37
Karnes
Kassebaum
Kasten
Lugar
McCain
McClure
McConnell
Murkowski
Nickles
Pressler
Pryor
Quayle
Roth
Melcher
Metzenbaum
Mitchell
Moynihan
Nunn
Packwood
Pell
Proxmire
Reid
Riegle
Rockefeller
Sanford
Sasser
Shelby
Stafford
Weicker
Wirth
Rudman
Sarbanes
Simpson
Specter
Stevens
Symin.s
Thurmond
Trible
Wallop
Warner
Wilson
NOT VOTING-8
Gore Simon
Harkin Stennis
Mikulski
So the motion to lay on the table
the amendment (No. 1615) was agreed
to.
Mr. FORD. Mr. President, I move to
reconsider the vote by which the
motion to lay on the table was agreed
to.
Mr. LEAHY. I move to lay that
motion on the table.
The motion to lay on the table was
agreed to.
AMENDMENT NO. 1616
Mr. COCHRAN. Mr. President, I
send an amendment to the desk in the
nature of a substitute and ask that it
be stated.
The PRESIDING OFFICER. The
clerk will report the amendment.
The legislative clerk read as follows:
The Senator from Mississippi [Mr. COCH-
RAN) proposes an amendment numbered
1616.
Mr. COCHRAN. Mr. President, I ask
unanimous consent that further read-
ing of the amendment be dispensed
with.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
The amendment is as follows:
Strike all after the enacting clause and
insert the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the "Polygraph
Protection Act of 1987."
SEC. 2. DEFINITIONS.
As used in this Act:
(1) CommEacz.?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 indirect-
ly in the interest of an employer in relation
to an employee or prospective employee.
(3) LIE DETECTOR Tzsr.?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 pur-
pose of rendering a diagnostic opinion re-
garding the honesty or dishonesty of an in-
dividual; and
(B) the testing phases described in para-
graphs (1), (2), and (3) of section 9(b).
(4) POLYGRAPH.?The term "polygraph"
means an instrument that records continu-
ously, visually, permanently, and simulta-
neously changes in the cardiovascular, respi-
ratory, and electrodermal patterns as mini-
mum instrumentation standards.
(5) RELEVANT QUESTION.?The term "rele-
vant question" means any lie detector test
question that pertains directly to the matter
under invstigation 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 sections 7 and 8, it
shall be unlawful for any employer engaged
in or affecting commerce or in the produc-
tion of goods for commerce?
(1) directly or indirectly, to require, re-
quest, suggest, or cause any employee or
prospective 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 detec-
tor test or;
(4) to discharge, discipline, or in any
manner discriminate against an employee or
prospective employee because?
(A) such employee or prospective employ-
ee has filed any complaint or instituted or
caused to be instituted any proceeding
under or related to this Act;
(B) such employee or prospective employ-
ee 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. 4. NOTICE OF PROTECTION
The Secretary shall prepare, have printed,
and distribute a notice setting forth ex-
cerpts from, or summaries of, the pertinent
provisions of this Act. Each employer shall
post and maintain such notice, in conspicu-
ous places on its premises where notices to
employees and applicants to employment
are customarily posted.
SEC. 5. AUTHORITY OF THE SECRETARY.
(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
S 1723
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 neces-
sary or appropriate .for the administration
of this Act.
(b) SUBPOENA AUTHORITY.?For the pur-
pose of any hearing or investigation under
this Act, the Secretary shall have the au-
thority contained in sections 9 and 10 of the
Federal Trade Commission Act (15 U.S.C. 49
and 50).
SEC. 6. ENFORCEMENT PROVISIONS.
(a) CIVIL PENALTIES.?
(1) IN GENERAL.?Subject to paragraph
(2)?
(A) any employer who violates section 4
may be assessed a civil money penalty not to
exceed $100 for each day of the violation;
and
(B) any employer who violates any other
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 (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 dis-
trict courts of the United States shall have
jurisdiction, for cause shown, to issue tem-
porary or permanent restraining orders and
Injunctions 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 juris-
diction by any one or more employees for or
in behalf of himself or themselves and other
employees similarly situated.
(3) Cosrs.?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. GOVERNMENTAL AND FEDERAL EXEMP-
TIONS.
(a) No APPLICATION TO GOVERNMENTAL Era-
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 Ex-
EMPTION.?
(1) NATIONAL DEFENSE.?Nothing in this
Act shall be construed to prohibit the ad-
ministration, in the performance of any
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S 1722 CONGRESSIONAL RECORD ? SENATE
it as a condition of employment and
supports our particular proposal be-
cause we have aligned the request on
polygraph with other investigative
techniques. That way you provide
safety in the common carrier area. We
are providing it. Where you do not
provide the protection for those that
ride in the airlines or railroads or in
other areas is by putting reliance upon
safety by giving a polygraph. We have
demonstrated that time in and time
out with the OTA study. That is over-
whelmingly powerful evidence, Mr.
President.
The fact is, if we are concerned
about the use of various drugs, we say,
as we heard from the Senator from In-
diana, we are not dealing with drug
tests?this bill doesn't address drug
tests. We are not dealing with that.
But do not give the people in the back
of the plane the sense that their pilot
is OK because he passed a polygraph,
because it is not that reliable in the
kinds of circumstances in which it has
been used in the private sector.
I heard the debate earlier of the
Senator from Texas. He said, "Well,
why don't we use the Federal rules?"
Four to eight hours? Eight hours of
investigation? Up to $800? The indus-
tries and the chamber of commerce
out there in the waiting room would
be appalled at that.
So you are having to deal with both
safety and the extent that this should
be used as an investigative technique.
We have devised a balance and we be-
lieve that that provides for safety and
security in the area of common carri-
ers and the other areas as well.
That is basically the argument
against.
I reserve the remainder of my time.
Mr. GRAMM addressed the Chair.
The PRESIDING OFFICER. The
Senator from Texas is recognized.
Mr. GRAMM. The distinguished
Senator from Massachusetts makes a
total non sequitur, and the equivalent
would be that because building a fence
or putting a lock on your door does
not guarantee you will not be burglar-
ized; therefore, do not go out spend
money on fences or locks.
Nobody is guaranteeing that the tool
of a polygraph is going to prevent
someone on cocaine from flying an air-
liner into the ground, nor is it a guar-
antee that you are going to have iron-
clad protection by using a drug test or
by using psychological testing. But the
question is, Do we want to deny the
airlines access to that tool?
I was little amazed in listening to
our distinguished colleague talk about
how polygraphs were no good. I hope
the Soviets were listening or the CIA
because the Soviets told the Walker
family when they were spying for the
Soviet Union "Get all the information
you can except do not apply for a job
where you have to take a polygraph."
So obviously the Soviets do not under-
stand this issue the way the distin-
guished Senator from Massachusetts
does.
The PRESIDING OFFICER. The
time of the Senator from Texas has
expired.
Mr. KENNEDY addressed the Chair.
The PRESIDING OFFICER. The
Senator from Massachusetts.
Mr. KENNEDY. The fact remains
that, for example, Delta Air Lines,
which I do not believe, is less con-
cerned about their passengers than
the Senator from Texas, refused to
use it. They studied it, researched it,
and refused to use it because they felt
that it creates a false sense of security.
Now, Mr. President, it is not only
Delta Air Lines; the railroad industry
has endorsed our bill. -
The Senator from Texas talks about
the Russians. What does that have to
do with it?
The scientific information, Mr.
President, shows that it is not reliable,
and that if you are going to use it as a
tool, it may have some value in asso-
ciation with other investigative tools.
The Senator wants it both ways. On
the one hand, he says it is not reliable
and, on the other, he says let us use
Federal standards-4-8-hour investi-
gating, carefully trained investigators,
two tests a day, $800 cost.
The military does not even have
enough trained people to provide ade-
quate polygraph tests, and the Sena-
tor wants to use it on others who may
be able to escape detection and thus
give a false sense of reliability.
If you want to go with the various
kinds of drug testing, go ahead and do
it, but do it in the way that is scientifi-
cally and medically sound.
The amendment of the Senator from
Texas does not do it, and it deserves to
be tabled.
I reserve whatever time I have.
The PRESIDING OFFICER. The
Senator from Massachusetts has 31
seconds.
Mr. LEVIN. Mr. President, I will
vote against the Gramm amendment
because it provides a blanket exemp-
tion to the restrictions this bill places
on the use of polygraphs for a certain
class of workers, and does not provide
any assurance that the results of these
tests will not be used as the sole basis
for firing, demoting, or denying em-
ployment to those workers.
Under the provisions of S. 1904, the
underlying bill, common carriers are
permitted to use polygraph testing as
one of a number of tools to investigate
a specific incident. It specifically pro-
vides that the results of a test cannot
be used to take action against an em-
ployee "without additional supporting
evidence."
The Gramm amendment, on the
other hand, would permit the use of
polygraphs for preemployment screen-
ing or random testing of employees
without reasonable suspicion of their
involvement in a specific incident. And
it does not even provide a guarantee
that the polygraph?which according
to scientific studies has a questionable
record of accuracy?won't be used as
the sole basis to fire or demote an em-
March 2, 1988
ployee, or even to deny someone a job
in the first place.
Last year, I supported an amend-
ment offered by Senator DANFORTH
which provided for drug testing of
those involved in air transportation,
and I would support similar amend-
ments applying to other types of
common carriers. Such proposals en-
hance public safety by allowing care-
fully prescribed use of a type of test-
ing that has a reasonable record of ac-
curacy.
Earlier today, I voted for the Nick-
les/Thurmond amendment, which pro-
vided for a wider use of polygraphs for
security personnel. The security per-
sonnel amendment, in contrast to the
Gramm common carrier amendment,
has provisions defining employers' ob-
ligations and limiting the use of the
test results. It emphasizes the employ-
er's obligation to comply with State
and local law and negotiated collective
bargaining agreements that limit or
prohibit the use of lie detector tests;
and it provides that the results of the
test are not to be used as the sole basis
for adverse action against a current or
prospective employee. ,
The Gramm amendment does not
contain these safeguards, instead cre-
ating a wide open exemption for a cer-
tain group of employers to use poly-
graphs. Therefore, I cannot support it.
Mr. KENNEDY. I yield back the
time.
The PRESIDING OFFICER. All
time is yielded back.
? Mr. KENNEDY. I move to table the
amendment.
The PRESIDING OFFICER. The
question is on the amendment.
Mr. KENNEDY. I ask for the yeas
and nays.
Mr. GRAMM. '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 agreeing to the amend-
ment of the Senator from Texas. The
clerk will call the roll.
The legislative clerk called the roll.
Mr. CRANSTON. I announce that
the Senator from Florida [Mr.
CHILES], the Senator from Tennessee
[Mr. Gorta the Senator from Iowa
[Mr. HARKIN], the Senator from Mary-
land [Ms. MiEuLsEl], the Senator
from Illinois [Mr. SimoN], and the
Senator from Mississippi [Mr, STEN-
NIS] are necessarily absent.
I also announce that the Senator
from Delaware [Mr. BIDEN] is absent
because of illness.
I further announce that, if present
and voting, the Senator from Mary-
land [Ms. MIKULSKI] would vote "yea."
Mr. SIMPSON. I announce that the
Senator from Kansas [Mr. Doi] is
necessarily absent.
The PRESIDING OFFICER (Mr.
LAUTENBERG). Are there any other Sen-
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March 2, 1988 CONGRESSIONAL RECORD ? SENATE
not be more than 20 minutes equally
divided. Perhaps that time will be
yielded back or perhaps it might be ac-
cepted as we go along. But that would
be the extent of the activity here.
There are timely amendments, but
any that are not brought in this
evening or not known as per different-
ly from Senators COCHRAN and GRAMM
can be handled tomorrow under post-
cloture. But we can certainly pull it
down to that.
Mr. BYRD. Mr. President, I have
the approval of the distinguished man-
ager of the bill.
I ask unanimous consent that there
be 10 minutes on each of the two
Cochran amendments, equally divided
in accordance with the usual form;
that no amendment to the amendment
be in order in each instance; and that
on the amendment which Mr. GRAMM
will call up presently there be 10 min-
utes equally divided with no amend-
ment to the amendment be in order.
The reason I say that we do not ex-
clude amendments to the amendment
is any amendment, no matter how far-
reaching, that was offered to his
amendment would have to be voted on
without debate. So I say that for the
protection of all Senators.
That way, the Senator could pro-
ceed. He would have 10 minutes equal-
ly divided, and in the meantime I
would hope that we could be able to
clear the Metzenbaum amendment.
Then we would proceed accordingly, if
we could get these requests now.
The PRESIDING OFFICER. Is
there objection? Without objection, it
is so ordered.
Mr. BYRD. Was the request put by
the Chair, the earlier request that I
propounded?
The PRESIDING OFFICER. That is
correct.
Mr. BYRD. I thank the Chair.
Mr. PRYOR. Mr. President, I re-
serve the right to object; I did not
quite hear the distinguished majority
leader. Involved in this, was there any
provision of stacking of votes?
Mr. BYRD. No, there was not. As I
understand Mr. KENNEDY, he would
like to proceed for a while and there is
an inclination on the other side about
a certain time on amendments. So per-
haps we are making progress, if we
could go along for a little while to see
where we are.
Mr. PRYOR. Might I just suggest, if
we are going to have four or five votes
tonight, as it looks as if we are, might
I respectfully suggest to the majority
leader that those votes be 10-minute
votes?
Mr. BYRD. Mr. President, I guess we
should not do that on the first vote
certainly. Then we can put that re-
quest later. I thank the distinguished
Senator.
But, Mr. President, I ask unanimous
consent that on each 15-minute vote
the call for the regular order be auto-
matic at the conclusion of the 15 min-
utes.
The PRESIDING OFFICER. Is
there objection?
Mr. BRADLEY. Reserving the right
to object, I missed the majority lead-
er's description of what amendments
were going to come and how frequent-
ly they would come. Is there a
window?
Mr. BYRD. No. There is not any
window. We expect votes frequently
and without much debate.
Mr. BRADLEY. After half an hour
or so?
Mr. BYRD. No. I think there should
be a vote within 10 minutes.
Mr. GRAMM addressed the Chair.
The PRESIDING OFFICER. The
Senator from Texas.
AMENDMENT NO. 1615
(Purpose: To provide a common carrier
exemption)
Mr. GRAMM. I send an amendment
to the desk and ask for its immediate
consideration.
The PRESIDING OFFICER. The
clerk will report.
The legislative clerk read as follows:
The Senator from Texas [Mr. Gaamm)
proposes an amendment numbered 1615.
Mr. GRAMM. Mr. President, I ask
unanimous consent that further read-
ing of the amendment be dispensed
with.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
The amendment is as follows:
(e) COMMON CARRIER EXEMPTION. ?This
Act shall not prohibit the use of a lie detec-
tor test by an employer on any employee or
prospective employee of any common carri-
er as defined by section 10102(4) of title 49
United States Code, including any air trans-
portation as defined in section 101 of the
Federal Aviation Act of 1958 and any other
common carrier engaged in the hauling of
passengers or freight.
The PRESIDING OFFICER. If the
Senator will suspend, may we have
order in the Chamber so the Senator
can be heard?
Mr. GRAMM. Mr. President, this is
a very simple amendment. The bill
before us allows the Federal Govern-
ment, State governments, and local
governments to use polygraph for the
purposes they may deem within State
law and within Federal law. It in es-
sence has a blanket government ex-
emption.
It then specifically exempts from
coverage under this bill, which is pro-
hibition against use of polygraph, con-
tractors that are doing work for the
Department of Energy and some other
specific Government agencies.
The amendment that I have offered
simply allows the private sector within
State law, within Federal law that
part of the private sector that is in-
volved in common carriage?that is,
ground transportation, air transporta-
tion, water transportation?to have
the right within Federal law and State
law to use polygraph.
Mr. President, this is a clear-cut
Issue. If we are going to give the De-
partment of Agriculture power to use
polygraph for the public purpose re-
S 1721
lated to people who are in seed re-
search, if we are going to give local
government that power, surely we
dare not deny that power involving
airline pilots, railroad engineers; pilots
of ships where human life is potential-
ly endangered.
We have already acted on a similar
amendment related to drug testing.
The problem is, however, that with
the drug test you are testing drugs
that are in people's bodies at the time.
I for one am not willing to say to an
airline, that has the potential of
having a pilot flying an airplane that
my wife and children may be on or
that the distinguished Senator from
Massachusetts might be on, that you
do not have the right to use a poly-
graph within the constraints of State
and Federal law to find out if that air-
line pilot has used cocaine or is likely
therefore to use it in the future.
It seems to me we are denying the
tool here related to common carriers
that is not prudent public policy. So
the vote here is do we want to give pri-
vate companies engaged in common
carriers the right to use polygraph ob-
viously relating to those areas where
we are talking about mechanics that
are repairing airplanes, pilots, and
people who are running railroad en-
gines. I think this is a prudent exemp-
tion, and I urge the distinguished Sen-
ator from Massachusetts to not close
his heart on this important exemption
that could mean the life and health
and safety of the American people.
I believe this is a reasonable exemp-
tion, and that it should be adopted.
Surely, if we can allow every agency
of the Federal Government, every
agency of every State government to
use polygraph, we dare not deny that
tool for use to protect the skyways,
the waterways, the highways, and our
railroads.
I urge my distinguished colleague to
support this amendment. Perhaps we
could adopt it by unanimous consent.
Mr. KENNEDY addressed the Chair.
The PRESIDING OFFICER. The
Senator from Massachusetts.
Mr. KENNEDY: Do we have a time
limit?
The PRESIDING OFFICER. Five
minutes a side.
Mr. KENNEDY. How much time
now remains?
The PRESIDING OFFICER. The
Senator has 6 minutes and 11 seconds.
Mr. KENNEDY. I yield myself 4
minutes.
Mr. President, we have to make a de-
cision whether the polygraph is effec-
tive and reliable or is not. That is the
basic issue. The Senator from Texas
has an irrefutable argument if it is ac-
curate. It is- not accurate. We have
tried over the course of this debate to
demonstrate it is not accurate. Even
the National Institute of Justice has
found that it is not effective.
For that reason, the Association of
American Railroads, representing ' one
of the prime common carriers, rejects
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S 1720 CONGRESSIONAL RECORD ? SENATE March 2, 1988
been recognized under the standing
order, there be morning business not
to extend beyond the hour of 9 a.m.
and that Senators may speak during
the period for morning business for
not to exceed 5 minutes each; that if
no motion or resolution over, under
the rule come over and that the call of
the calendar under rule VIII be
waived.
The PRESIDING OFFICER. Is
there objection?
Mr. METZENBAUM. Reserving the
right to object, and I do not intend to
object, would the leader be good
enough to tell us what the subject is
for that 5 hours?
Mr. BYRD. I would yield to the dis-
tinguished acting Republican leader..
Mr. SIMPSON. Mr. President, it is
best described as a sensitive issue, one
that would come to pass even under
the most extraordinary parliamentary
procedures. It has to do with a sense-
of-the-Senate resolution which will be
proposed by Senator SPECTER which di-
rects itself to the rule to the motion to
compel absent Senators through the
use of the Sergeant at Arms, setting
out the procedure in the future, which
will be referred to the Rules Commit-
tee.
Mr. METZENBAUM. I have no ob-
jection.
Mr. SIMPSON. And that is what
that is.
Mr. PRYOR addressed the Chair.
The PRESIDING OFFICER. The
Senator from Arkansas. '
Mr. PRYOR. Mr. President, reserv-
ing the right to object, and I do not
plan to object, I am wondering if the
majority leader and the acting Repub-
lican leader, together with the distin-
guished manager, the Senator from
Massachusetts, might not propose
some sort of a time agreement on the
amendments to be offered tonight,
debate those amendments and then to-
morrow morning, having stacks of
votes, let us start voting at an earlier
time, rather than keeping the Senate
in until 10 or 11 o'clock this evening.
I wonder if that is within the realm
of possibility to perform in that
manner?
Mr. BYRD. Mr. President, the Sena-
tor makes a good suggestion. I would
want to hear from the manager of the
bill first. I would like to say that at
least there should be a vote on the
amendment by Mr. METZENBAUM be-
cause of the limits of that sense-of-
the-Senate amendment. And we could,
over the next few minutes, attempt to
see if we could work out a time agree-
ment on the other amendments, possi-
bly stack votes on them at some time.
I suppose the stacking would have to
begin after the cloture vote tomorrow
or prior thereto.
Mr. PRYOR. Mr. President, further
reserving the right to object, I have
just discussed with the Senator from
Ohio the possibility of a time agree-
ment on his sense-of-the-Senate
amendment. While a discussion is
being held, would it be possible to
move to his sense-of-the-Senate resolu-
tion and let disposition be taken of
that and possibly go back to this, thus
making us have only one vote tonight?
Mr. BYRD. Mr. President, I think
there will definitely be a vote on the
amendment by Mr. METZENBAUM this
evening. I still want to hear from the
manager of the bill. I would be happy
to propound a time limitation of 15
minutes for each Senator or less, say,
10 minutes to aside. We already have
had a good bit to say on it.
Mr. METZENBAUM. I do not care.
My opinion is it would take 3 minutes
Or SO.
Mr. BYRD. I would like to hear
from the manager.
Mr. KENNEDY. Mr. President, I do _
think in fairness to my colleague, the
Senator from Connecticut, I am glad
to continue the debate on this issue. I
am, glad to debate it tonight. I am glad
to follow whatever procedures the
Senators want. I do note the Senator
from Connecticut, I think in terms of
the time limit, as I understand it, is
the one Member who has brought to
my attention his own concern about
this issue.
I would hope that before a time
limit is developed on the Metzenbaum
amendment at least he be consulted. I
am prepared to agree to any time limit
that is worked out.
Mr. BYRD. Very well.
Mr. KENNEDY. I think he ought to
be consulted on the time limit.
On the other issue, I imagine there
would be objection to stacking. Quite
frankly, I am glad to debate the Sena-
tor from Texas as long as he would
like to.
I will point out to the Members that
the bill was laid down at 2 o'clock yes-
terday, and we waited until well into
the midafternoon before we had any
amendments. So for those who have
this burning desire to debate these
issues, it is not that we have not had a
reasonable period of time in which to
do it.
Having said that, if there is objec-
tion, and there probably will be, I am
more than glad to take some time to
debate it. But I want to give the assur-
ances as the floor manager of this bill
that I do not feel a sense of constraint.
I am sorry that we are going into the
hours this evening, but I will remind
my colleagues, and they can review
the RECORD both yesterday and today,
that we did not involve ourselves with
the substantive issues.
The Senator from Texas made an el-
oquent statement, which I heard
through the television because I neces-
sarily had to be off the floor for about
15 to 20 minutes. But after that, we
did not really have substantive amend-
ments.
I think the membership ought to un-
derstand that if this was such a burn-
ing issue and people wanted to get
over here, they certainly had an op-
portunity before 7 o'clock on this
evening.
I am quite prepared to stay here and
follow whatever the indications are of
the Members on any of these matters.
If they want to stack, that is agreeable
with me. If they want to continue, I
would hope that we would continue to
move toward further progress on the
bill.
Mr. GRAMM. Would the distin-
guished majority leader yield?
Mr. BYRD. I yield.
Mr. GRAMM. I would like to say I .
think the amendments we have had
have been substantive. I have spoken
on the floor twice today on this issue.
In fact, I sat here waiting for an op-
portunity to offer an amendment
while several Members spoke and
others were recognized, in terms of of-
fering amendments. So there have
been no dilatory tactics on my part.
Each of my amendments are germane.
They would be eligible to be offered
after cloture. They address fundamen-
tal issues like, do you want to exempt
common carriers?
Fundamental issues such as given
that you have exempted Contracts
with the Department of Energy. Do
we want to exempt contracts with the
Drug Enforcement Administration on
the use of lie detectors?
So my amendments have nothing to
do with dilatory tactics. They are all
germane. They all address the issue.
My problem has been that other
people have been here, and when I was
prepared to offer an amendment,
other people were recognized. So I am
willing to do it tonight. I would be
happy to do it tomorrow. I would like
to know when we are going to do it. If
there is only going to be one amend-
ment tonight, I would like to know it
so I can go to the Banking Committee.
- Mr. BYRD. Mr. President, if there is
anybody here who is probably having
some difficulties with respect to stand-
ing on his feet for the rest of this
evening, it is the manager of the bill. I
certainly want to accord him every
courtesy and follow his wishes in this
matter.
I have this suggestion: I suggest that
Mr. GRAMM proceed with an amend-
ment. Perhaps we could get a time
agreement on that one amendment.
That would give us time to contact the
_Senators for whom Mr. KENNEDY al-
luded earlier. Perhaps we can get a
time agreement then on the Metz-
enbaum amendment. Then by that
time I think we should be able to have
a list of amendments and the time
that we would ,propoe on each of
those amendments.
Mr. SIMPSON.' Mr. President, I
think we can do that. I have two
amendments of Senator COCHRAN. He
has agreed to a time agreement of 10
minutes equally divided on each
amendment. That is Senator COCHRAN.
I have now Senator GRAMM, who has
agreed to go with his first amendment,
which is 10 minutes equally divided on
this first amendment. In any event, on
his remaining amendments, it would'
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March 2, 1988
CONGRESSIONAL RECORD ? SENATE S 1719
employees but others that I knew in
business did. That is a hard decision to
make. That means that you do not
trust your employees and if you do not
trust your employees I tell you that
you begin the path toward not doing
very well in business and perhaps even
ending your business career.
There has to be a mutuality of trust,
but in the event that an employee
wants to take the test, in the event
that the business is going to fold due
to employee theft, certainly an em-
ployee should be able to volunteer for
a test so there will not be a cloud over
his head.
To think that people will volunteer
for a lie detector test on the basis that
they are going to be able to fool the lie
detector when the bill has provisions
as to how the lie detector test is going
? to be administered I think that is not
dealing with the real world.
? I ask for the yeas and nays on my
amendment.
The PRESIDING OFFICER. Is
there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The
Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I
move to table the amendment and 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 agreeing to the motion
to lay on the table the amendment of
the Senator from Minnesota.
On this question, the yeas and nays
were ordered and the clerk will call
4 the roll.
The legislative clerk called the roll.
Mr. CRANSTON. I announce that
the Senator from Tennessee [Mr.
GORE], the Senator from Iowa [Mr.
HARKIN], the Senator from Illinois
[Mr. Simow], and the Senator from
Mississippi [Mr. STENNIS] are necessar-
ily 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.
PELL). Are there any other Senators in
the Chamber desiring to vote?
The result was announced?yeas 56,
nays 38,_as follows:
[Rollcall Vote No. 37 Leg.]
Adams
Armstrong
Baucus
Bentsen
Bingaman
Boren
Bradley
Burdick
Chafee
Chiles
Cohen
Conrad
Cranston
Daschle
YEAS-56
DeConcini
Dodd
-Durenberger
Evans
Exon
Ford
Glenn
Graham
Grassley
Hatch
Hatfield
Heinz
Hollings
Inouye
Johnston
Kassebaurn
Kennedy
Kerry
Lautenberg
Leahy
Levin
Matsunaga
McCain
Melcher
Metzenbaum
Mikulski
Mitchell
Moynihan
Nunn Riegle Shelby
Packwood Rockefeller Stafford
Pell Sanford Weicker
Proxmire Sarbanes Wirth
Reid Sasser
NAYS-38
Bond Hecht Quayle
Boschwitz Heflin Roth
Breaux Helms Rudman
Bumpers Humphrey Simpson
Byrd Karnes Specter
Cochran Kasten Stevens
D'Amato Lugar Symms
Danforth McClure Thurmond
Dixon McConnell Trible
Domenic' Murkowski Wallop
Fowler Nickles Warner
Garn Pressler Wilson
Gramm Pryor
Blden
Dole
NOT VOTING-6
Gore Simon .
Harkin Stennis
So the motion to lay on the table
amendment No. 1610 was agreed to.
Mr. KENNEDY. Mr. President, I
move to reconsider the vote by which
the motion was agreed to.
Mr. HATCH. I move to lay that
motion on the table.
The motion to lay on the table was
agreed to.
The PRESIDING OFFICER. The
Senator from Massachusetts.
Mr. KENNEDY. Mr. President, if we
could have the attention of the Mem-
bers here? As I understand, there are
still two outstanding amendments to
be made. Perhaps there are more, but
at least two that the Senator from
Utah and I know about. We are glad to
consider and debate these issues this
evening or we are glad to accommo-
date whatever the leadership is in-
clined to do; if there is a request by
the leadership.
The PRESIDING OFFICER. The
majority leader.
Mr. BYRD. Mr. President, how
many Senators have amendments that
they intend to call up? Mr. GRAmm?
How many amendments does the Sen-
ator intend to call up?
Mr. GRAMM. Less than 10, I think.
Mr. BYRD. Less than 10.
Mr. COCHRAN?
Mr. COCHRAN. Mr. Leader, I have
three amendments.
Mr. BYRD. Anybody else? Mr. METE-
ENBAUM?
Mr. METZENBAUM. I have one on
the steel matter, a sense-of-the-Senate
resolution.
Mr. BYRD. Well, Mr. President, I
think we ought to just stay and let the
Senators offer their amendments.
As to tomorrow, would the distin-
guished acting Republican leader at
this time be ready to discuss the pro-
posal that we talked about earlier?
Mr. SIMPSON. Mr. President, I
think it would be very appropriate to
discuss that. I am hoping that those
who have amendments might finish
them tonight, rather than at a postclo-
ture attitude tomorrow. The majority
leader may go ahead and express what
he and I have discussed. I think it
sounds highly reasonable and I have
discussed it with those on my side of
the aisle. You may wish to propose it
or I could suggest what it is but I leave
that to you, sir. -
Mr. BYRD. Very well. I ask unani-
mous consent that on tomorrow, at 9
o'clock, there be, on another matter, 4
hours of debate under the control of
the distinguished acting Republican
leader; that there be 1 hour of debate
under my control on the same matter;
that the vote on cloture then occur
which would be at 2 p.m.
As I understand it, I would hope
that following tonight's work, there
would not be any further amend-
ments, but perhaps when the evening
is over, we could determine whether or
not there are one or two amendments.
I hope there will not be any. And then
the Senate would complete its action.
I assume that cloture will be in-
voked. We already have the order that
upon the disposition of the pending
bill, the Senate will go to the intelli-
gence authorization bill. It is possible
that that could be finished tomorrow,
and if it is not finished tomorrow, it
would go over until Friday. Hopefully
we could complete action on that bill
Friday.
There would be a vote on Friday on
the nomination on the executive cal-
endar of William F. Burns, of Pennsyl-
vania, to be Director of the U.S. Arms
Control and Disarmament Agency.
As to the unanimous-consent re-
quest, as I say, it would provide for be-
ginning at 9 o'clock tomorrow, time
under the control of the distinguished
acting Republican leader to be 4
hours, to be followed by 1 hour con-
trolled by me, on an extraneous
matter. He and I have an understand-
ing as to how we will arrange the last
hour and a half of that. Then the vote
on cloture would occur at 2 p.m. with
the mandatory quorum call under the
rule being waived.
The PRESIDING OFFICER (Mr.
CONRAD). Is there objection?
Mr. SIMPSON. Mr. President, I.
would respectfully add, if I may, to the
majority leader that we would convene
- at 8:30 and then 10 minutes with the
leaders, leader time, and then recogni-
tion of Senator PROXMIRE, and then
beginning at 9 o'clock with the 4
hours.
Mr. BYRD. That was the under-
standing. Not knowing what time the
Senate will complete its work tonight,
I thought I would leave that 8:30 con-
vening hour out of the order for the
moment. It may very well be that we
are going to come in at 8:45, whatever.
The 4 hours under the control of the
distinguished acting Republican leader
would start running at 9, the control
of time.
For the moment, let me include the
rest of the agreement that the distin-
guished Senator referred to.
I ask unanimous consent that when
the Senate completes its business
today that it stand in adjournment
until the hour of 8:30 tomorrow morn-
ing; provided further, that after the
two , leaders, or the designees, have
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. S 1718
CONGRESSIONAL RECORD ? SENATE March 2, 1988
of discrimination if not overt discrimi-
nation.
Mr. BOSCHWITZ. Mr. President,
will the Senator yield?
Mr. HATCH. I would be happy to
yield if I could make a line of points
and then I think the distinguished
? Senator would want to ask me some
questions perhaps.
Maybe there are three or four in
that group of people, and I do not
know anybody who would want to vol-
untarily take a lie detector test under
the circumstances of knowledge that
they may not be accurate. Most people
perhaps do not know that they are
generally inadmissible under eviden-
tiary rules in our courts of law, but if
they heard that they would be very
concerned about the accuracy of lie
detector tests, and maybe the honest
guy will fail it.
I have actually seen cases of honest
people where the polygrapher was so
well skilled that he kneW what looked
like deception really was not, it was
really honesty, but you have to have a
very skilled polygrapher to be able to
determine that because people who
are very honest are sometime the most
uptight. The one with the highest set
of ethics and the highest principles
may be the ones who come out decep-
tive under an improperly administered
polygraph or even under one adminis-
tered by a person who has skills but
not the ultimate skills in administer-
ing polygraphs.
Under our bill you need the eviden-
tiary basis before the employer can
use the polygraph. That is a protec-
tion to both the employer and the em-
ployee.
Under the amendment the reality of
coercion is always there. That is what
I want to get rid of.
I know the distinguished Senator
has noble goals here and noble aims,
but literally the reality will be that of
coercion.
Frankly that is what we are trying
to get around here.
For instance, let us push it to its log-
ical extreme. Let us say that one em-
ployee is under reasonable suspicion.
By this bill let us say that one employ-
ee requests a polygraph. Why would
he or she request a polygraph? The
reason he or she is requesting a poly-
graph is that somebody accused them
or they are afraid they are under rea-
sonable suspicion for having done
something wrong. That is the only
reason anybody would request a poly-
graph test. Nobody in their right mind
would request it otherwise.
If there is the evidentiary basis, if
there is a reasonable suspicion, noth-
ing stops that employee from saying to
his employer, "Look, I will be glad to
take a polygraph." The employer
might say to him, "Why, I don't want
to pay for it."
Under this bill, you know there is a
real question whether the employee
can be fired under those circum-
stances.
The fact is that the employer prob-
ably would be glad to pay for it if he is
any kind of employer.
Let us say the employer says, "I
don't want to pay for it," and the em-
ployee says, "I will pay for it. Let us
agree on the polygraph institution or
the polygrapher and I will pay for it."
I cannot imagine an employer,
unless they are really trying to dis-
criminate against the employee, who
would not accept that situation and
allow the employee to demand a poly-
graph test for which the employee
pays.
Now I think that the carefully craft-
ed language of this bill solves the
problem of the distinguished Senator
from Minnesota but it also solves this
problem of coercion, and that is what
bothers me.
I cannot support the amendment of
my friend from Minnesota, and I wish
I could, but I think the bill is crafted
properly.
Let us face it. There are good argu-
ments that we should have preemploy-
ment screening, but I think on balance
when you consider those who really
are hurt by the process that exists
today that outweighs the arguments
in favor of preemployment screening. I
think the arguments I made outweigh
the arguments of the distinguished
Senator from Minnesota even though
I am sure he disagrees with that. I
think we have it crafted. I think we
can resolve these problems. I think the
employee can demand a polygraph ex-
amination and pay for it himself or
herself, but the fact of the matter is
there is no reason to change this bill
as it is written because if we adopt the
language of my friend from Minneso-
ta, then we are adopting language that
I think leads to coercion in the work-
place. That is what we are trying to
avoid.
I am happy to yield to my friend.
Mr. BOSCHWITZ. I ask my distin-
guished colleague from Utah if these
tests can be so easily fooled?
Mr. HATCH. They can.
Mr. BOSCHWITZ. They can, you
say.
Mr. HATCH. They can under certain
circumstances.
Mr. BOSCHWITZ. Why do you have
this section in here at all in this case?
If you think that polygraphs work so
poorly why do you not just outlaw
them out of hand?
Mr. HATCH. We know they work if
they are properly administered under
the best of circumstances with good
analysis and good questions and a rea-
sonable time. We know that they can
work 85 percent of the time.
Now, the way we have written this is
we have written it so that the poly-
graph does not solely become the in-
strument of discharge for the employ-
ee. It can be a part of the consider-
ation and it may very well be that the
polygraph examination will exonerate
the employee so that the employer
will really feel satisfied.
So we have acknowledged that under
those circumstances where a reasona-
ble suspicion arises or appropriate 'evi-
dentiary basis the employee can
administer the polygraph and we also
suggest standards better than the
standards that presently exist.
This bill does two things. It sets up
an evidentiary basis so that the poly-
graph itself is not the sole reason for
discharging the employee and it sets
up a system whereby better standards
can be developed and more uniform
standards.
Mr. BOSCHWITZ. Mr. President,
will the Senator yield?
Mr. HATCH. I am happy to yield.
The PRESIDING OFFICER. The
Senator from Minnesota.
Mr. BOSCHWITZ. Mr. President, I
da not want to extend this debate and
I know that the senior Senator from
Massachusetts wants to make a
motion to table which will effectively
end debate.
But in the event the Senator from
Utah wants to put some conditions on
this amendment that say that the
tests have to be taken by a licensed
person or something like that I have
no objection.
Mr. HATCH. Will the Senator yield
on that point?
Mr. BOSCHWITZ. I yield.
Mr. HATCH. We cannot do that be-
cause one of the biggest problems we
have?
Mr. BOSCHWITZ. What?
Mr. HATCH. We cannot do that be-
cause one of the biggest problems we
have is what standards-will be set or
Imposed on the States or the Federal
Government. We are going to leave
that to the people to whom it should
be left.
Frankly, we can do that.
The Senator's amendment is effec-
tive in one particular and that is that
it results in coercion of the workplace.
It results in that. I know what he is
trying to do but the way it is written it
results in that.
Frankly, I think our language on
which we spent really quite a bit of
time solves the problem.
Mr. BOSCHWITZ. Mr. President, we
would be very happy to make this
amendment subject to section 8 of the
bill that lists qualifications of examin-
ers and I presume that the bill would
be broad enough that if the amend-
ments were added it would be subject
to all of those conditions.
But you know we deal with exam-
ples, I would say to my friend from
Utah, and the example is that you cast
a cloud over people who cannot exon-
erate themselves.
If you think that people are going to
volunteer for this test, that people
who are liars or know that the tests
can be fooled, that they are going to
volunteer for this test, you are really
not dealing with the real world, I
would say to my friend from Utah, be-
cause in my business career I never im-
posed a lie detector test on any of my
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March 2, 1988 CONGRESSIONAL RECORD ? SENATE
Mr. BOSCHWITZ addressed the
Chair.
The PRESIDING OFFICER (Mr.
LEAHY). The Senator from Minnesota.
Mr. BOSCHWITZ. Mr. President, I
thank the Senator from Indiana.
Indeed, the situation that he described
could certainly come up. Again from
my business experience, I am aware of
companies that have gone out of busi-
ness due to theft. Indeed, that be-
comes a well-known fact. And employ-
ee theft within a company normally is
not a well-known fact. It does not
become knowledge that is to say. But
in the event a company is widely af-
fected or perhaps even goes out of
business, the cloud indeed could be
cast over all of the employees who
were associated with that business,
and make it more difficult for them to
obtain employment thereafter.
My friend from Massachusetts talks
about the fact that he has broad sup-
port from the business community.
Nine associations, I understand, sup-
port this bill as it is. I understand that
the Senator from South Carolina [Mr.
THURMOND] has introduced a list of 80
associations that oppose it.
I say to my friend from Massachu-
setts, with respect to the second part
of this amendment that he read, that
the employer or agent administering
the test inform the employee or pro-
spective employee that taking the test
is voluntary, we added that from the
standpoint of protection. Just as a po-
liceman must inform a suspect that he
has certain rights, we just wanted to
be sure that the employer must state
to him that this is voluntary, so it is
said out loud.
If the distinguished Senator from
Massachusetts objects to that provi-
sion, we will take it out.
I ask for the attention of the Sena-
tor from Utah, as well, if the Senator
from Utah will listen to the resubmis-
sion of this amendment. It would read:
This act shall not prohibit an employer or
agent of the employer from administering a
lie detector test to an employee if the em-
ployee requests the test.
I would like to change the amend-
ment. I would withdraw and resubmit
the amendment, and I ask at this time
that my amendment be withdrawn.
The PRESIDING OFFICER. The
Senator has a right to withdraw his
amendment. The amendment is with-
drawn.
Mr. KENNEDY and Mr. BOSCH-
WITZ addressed the Chair.
The PRESIDING OFFICER. The
Senator from Minnesota has retained
the floor.
AMENDMENT NO. 1610
(Purpose: To permit an employer to admin-
ister a lie detector test to an employee if
the employee requests the test)
Mr. BOSCHWITZ. Mr. President, I
send an amendment to the desk and
ask for its immediate consideration.
The PRESIDING OFFICER. The
amendment will be stated.
?The assistant legislative clerk _read
as follows:
The Senator from Minnesota [Mr. Boscx-
wrrzl proposes an amendment numbered
1610:
On page 28, between lines 14 and 15,
Insert the following new subsection:
(e) EXEMPTION FOR VOLUNTARY TESTS.?
This Act shall not prohibit an employer or
agent of the employer from administering a
lie detector test to an employee if?
the employee requests the test.
Mr. BOSCHWITZ. Mr. President,
the amendment is simple and direct. I
hope that the manager of the bill and
the minority manager of the bill will
be able to accept it.
Mr. KENNEDY. Mr. President, I
have outlined the reasons earlier
about my own reservations. They are
reinforced with the example that has
been given by the Senator from Indi-
ana. ?
If you take the OTA study?say, you
had a hall with 100 people. Something
is missing, and they want to come for-
ward. According to the OTA study,
you would have 12 polygraph tests
that would be incorrect. ? Given the
false positives and false negatives,
what it would say is that eight inno-
cent people would be labeled guilty -
and four who are guilty would be la-
beled innocent, if they volunteer,
under the most conservative of the
studies, and 35 percent of the exami-
nations are inconclusive.
So, here you have 35 people of that
100 in that building. They are under a
cloud?their tests ?are inconclusive.
You have eight people who are inno-
cent and who are going to be labeled
liars or deceitful, and you are going to
have four who may be lying about it,
who, under these tests, will be cleared.
What possible sense does that make?
We have been through this. We have
worked out the formula about how
this can be used and used under re-
stricted circumstances as a part of an
investigation of specific incidents. The
example that is given, I find, substan-
tiates that point and makes it even
less convincing than before.
Mr. QUAYLE. Mr. President, will
the Senator yield?
Mr. KENNEDY. I yield.
Mr. QUAYLE. If you take that hy-
pothetical of 50 people, I would think
that maybe only one or two or three
people want to come forward; because
most people, frankly, including myself,
do not want to take a lie detector test
under any circumstances. But there
might be somebody who wants to
come forward, and you are precluding
that one person, not all of them. Is
there not some concern about some-
one who voluntarily wants to come
forward?
Mr. KENNEDY. A hundred are in
there, and they are missing a shoe
box: "Now, Harry, Jim just came in
and volunteered and he is free. He is
not guilty. Do you think you would
like to volunteer? You would or you
would not want to volunteer?"
Let us be realistic about these cir-
cumstances. We have the conditions
now where those tests can be request-
S 1717
ed and how those procedures would be
made.
Mr. HATCH. Mr. President, I admire
my colleague from Minnesota and
what he is trying to do. I have to say
that I know his intentions are very
good, but I happen to disagree, and I
will say why.
We have carefully crafted this sec-
tion on post employment so that I
think it basically takes care of his
problem. I do not want to have his
amendment in the bill for a very spe-
cific reason.
First of all, under section 7(2)(d),
limited exemption for ongoing investi-
gations:
Subject to section 8, this Act shall not
prohibit an employer from requesting 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 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. . .
Where this type of language is in-
cluded in State laws, the record in our
committee is replete with examples
where it has been the subject of con-
siderable abuse. We are now under the
third revision of this amendment. It
seems to me that this substantiates
that the way this was crafted in the
committee, after a good deal of consid-
eration, makes excellent sense.
I think it takes care of almost every
situation, except one, and that is this:
If we adopt the amendment of the dis-
tinguished Senator from Minnesota,
then basically an employee who may
be one of a number who are under sus-
picion, where there is a reasonable sus-
picion, may say, "I will be glad to take
the lie detector test," and it may be
the guilty employee, figuring that you
can beat the lie detector, which you
can. Sometimes, the most dishonest
people can beat it. The most honest
are the ones who are a little jittery
about a lie detector test. Let us say
there are three or four others there
who are under reasonable suspicion.
One of them may be an extremely
nervous person who just has heard
that lie detector tests are not accurate.
If they heard that they are right.
They are not accurate.
Under the very best of circum-
stances which I described earlier they
would be accurate maybe 85 percent of
the time, but 15 percent that poor
fellow is going to be thinking "because
I am nervous and I am upset it is going
to be inaccurate with regard to me."
So you develop a situation where the
one who may be guilty may want the
test and the other who is not guilty
looks like he does not want the test
and I think it becomes a subtle form
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1716 CONGRESSIONACRtCORD ? SErsiAtE
tive, why in the world are you allowing
polygraph tests in the first place?
I mean I have never heard the per-
centage of 53 percent. If properly ap-
plied, the polygraph is certainly more
effective than 53 percent. At least that
?is what the people in the security end
? of our Government have led me to be-
lieve. They sure believe in the poly-
graph test.
As the Senator knows, sometimes
the security of the Nation is relying
On the results of those tests. If it is so
ineffective, why does the Senator
make the exception at all? If we make
the exception and allow the employer
? to make the request of an employee in
the event that the employer makes an
insurance claim or makes a report to
the police of a missing item which is
really not a very complicated proce-
dure to make, then if the employer
under those circumstances can make
the request, certainly the employee
should be able to make the request.
We would take out the word "pro-
spective" employee. Very frankly, I,
during my business career, had any
number of break-ins, and thieves in
our buildings. We had buildings all
over the place. The police came in. It
is not a very complicated matter to file
some kind of a report with the police
and thereby give the employer the op-
portunity to make a test.
So I ask my friend from Massachu-
setts once again. If we take out the
words "prospective employee" and
only apply the polygraph test to em-
ployees who wish and make that re-
quest, then why should it not be ac-
ceptable when he allows the employer
to make a similar request?
Mr.-KENNEDY addressed the Chair.
The PRESIDING OFFICER. The
Senator from Massachusetts.
Mr. KENNEDY. Mr. President, just
In response as to why we still permit
it, the figures I gave the Senator were
the correct ones. You have some that
are incorrect and some that are doubt-
ful, is the way this particular study
that was conducted referred to in the
OTA study, but just in terms of the
Study that is referenced in the OTA
study on page 65.
But let me come to this: We only
permit it then under very limited sets
of circumstances. But let me just get
back to the proposal. In the amend-
ment of the Senator from Minnesota,
he says exemption for the voluntary
test.
This act shall not prohibit an employer or
agent of the employer from administering a
lie detector to an employee or prospective
employee if the employee requests a test
and the employer or agent administering
the test informs the employee that taking
the test is voluntary.
Will you have that employer saying,
look, this is voluntary. It is the em-
ployer telling that individual it is vol-
untary. I just find that given the
record, Mr. President, as just being un-
realistic. If we have eliminated the
preemployment circumstances, now we
are just taking those that are working.,
We set out where the individual will
take that voluntarily under the cir-
cumstance of the bill. We are trying to
move back from those other kinds of
incidents. I just think that the record
is so replete with instances of coercion,
so replete with it that it just is not
worth doing.
The way that this is crafted is the
result of careful consideration of both
the State laws, the professional testi-
mony of the various polygraphers, and
we have tried to devise a way both in
terms of the business and the workers
looking after each of their interests. I
think we have been able to thread
that needle in a rather different way.
It is different from where the House
came out. That is why we have been
able to get the broad support from the
business community that has opposed
the House bill?nine different trading
organizations with broad support.
I think what the amendment of the
Senator from Minnesota is talking
about would open up this whole pro-
posal in a completely unworkable way,
and still include the types of coercions,
and exploitation that we have seen in
the past.
Mr. President, I move to table the
amendment.
Mr. BOSCHWITZ addressed the
Chair.
The PRESIDING OFFICER. Would
the Senator withhold?
Mr. KENNEDY. Mr. President, I
think we really have to get action. We
have taken a good deal of time. I
would be glad to withhold for a couple
of minutes. We waited for the good
Senator for a good deal of time. I am
glad to, if he wants to make additional
comments.
Mr. QUAYLE. Could I have 3 or 5
minutes to make sure I understand?
Mr. BOSCHWITZ. I want to respond
to the Senator and ask for indulgence
so we do not move to table the motion.
We have not discussed the motion at
great length. And we are not going to
discuss it at great length but we want
to have a fair amount of time. So I re-
spectfully request we not move to
table this at this time.
Mr. KENNEDY. The Senator is per-
suasive as always.
I cannot wait to hear from my friend
from Indiana, and I always enjoy his
eloquence on this subject matter. So
we withdraw the motion.
The PRESIDING OFFICER. The
Senator withholds? his motion.
Who seeks recognition?
Mr. QUA'YLE addressed the Chair.
The PRESIDING OFFICER. The
Senator from Indiana.
Mr. QUAYLE. Thank you, Mr. Presi-
dent.
I see my dear friend from Massachu-
setts has seated himself to listen to
what the Senator from Indiana has to
say in a few brief moments. He did not
want to stand up, and then have to sit
down.
Let me make sure that I understand
this amendment assuming that pro-
spective employee is dropped. I want
Ifitrdi 2, 19188
to make sure that the Senate under-
stands what it is going to be voting on.
Let us take an example where there
has in fact been a theft in a plant, and
the employer decides not to polygraph
the people, say there is a section out
there where the theft occurred and
there are 20 people, 30 people, or 50
people in that section. And there has
been a theft. There has been some-
thing done that puts a cloud over that
whole section of all the employees
that are there.
The employer says "I am not going
to go through the time of polygraphs.
As a matter of fact, I just do not want
to waste time to do this." However, an
employee in that section says, "Wait a
second. I may want to go on to an-
other job and I certainly don't want
anything on my record or anybody to
think that I was involved in this, And
I demand and I want to have a poly-
graph. I want you to polygraph me."
The employer says, "Well, if you
want to, OK." Now, I believe that is
what the amendment of the Senator
of Minnesota is going to. It goes to
where you have an entire cloud that
could be passed over a lot of employ-
ees. And what you are going to be
doing is showing the degree of really
Involving ourselves in these employer-
employee relationships. The employee
may say, "I want to clear the record; I
as an individual."
What we are saying is no, that indi-
vidual cannot do that, no matter what.
I believe we are going very far. I know
the Senator from Massachusetts is a
strong proponent of individual rights
and civil liberties. And he takes a back
seat to no one. But I want him to
think of that particular situation of
where an employee that has a cloud
cast over the section, where they work,
and he or she says, "You know, I want
to make sure that they know that I
am not involved and I want to, I
myself want to go forward and ask for
this polygraph." The employer says
OK.
We are saying it would be prohibited
under the bill, but would be allowed
under the Boschwitz amendment. I
think that makes common sense. I
think that is the only decent thing we
can do. I do not believe this amend-
ment is that controversial. I think it
goes to a very narrow fundamental
point; that is, if an employee volun-
teers, I think the Senator from Massa-
chusetts makes a good point that
these prospective employees perhaps
think there would be this intimidation
factor. But an employee who wants to
clear the air, clear the record, comes
forth and says, "You give me a? poly-
graph" and the employer says "OK,"
it is precluded. It would be allowed
under the Boschwitz amendment. It
goes to a very, very narrow situation,
one that I hope the sponsors of the
bill might agree to. I do not believe it
Is going to do that much damage to
this piece of legislation.
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March 2, 1988 CONGRESSIONAL RECORD ? SENATE
have similar kinds of requirements,
and they have been just open-ended
invitations to employers to say "Well,
look, this is all voluntary, Mr. or Miss
so-and-so, and we can't fire you or re-
quire you to take it as a condition of
employment." You can imagine how
that works in the various employment
halls or personnel centers around the
country. There is just instance after
instance where this has created an
enormous loophole.
In the legislation we do provide that
when there are circumstances where
there is reason to believe that an indi-
vidual has been involved in some
wrongdoing, the employer can make a
request of the employee to take the lie
detector, and the individual can either
take it or not take it. We spell out ex-
actly the circumstances when that will
or will not be available.
So we do in the legislation permit an
employer to make that request, and in
a sense it is voluntary. There has to be
other evidence besides the fact that
the employee did not take the test if
the employer wants to dismiss that
employee. That is all laid out in the
legislation.
It seems to me that that provides
the kind of safeguards that are neces-
sary in terms of assuring both the em-
ployer's interest and the employee's.
? Basically, where similar kinds of leg-
islation have been put into effect in
the several States, there has been a
wide record of abuse. They say it is
voluntary, but the overwhelming evi-
dence?and we have evidence in our
committee records from Maryland and
other cases, other than the State of
Minnesota, which we have reference
to in our record?just creates an abso-
lutely enormous loophole.
It is really for those reasons that the
Senator from Utah and myself find it
difficult and unacceptable. I will be
glad to yield.
Mr. BOSCHWITZ addressed the
Chair.
The PRESIDING OFFICER. The
Senator from Minnesota.
Mr. BOSCHWITZ. The distin-
guished senior Senator from Massa-
chusetts points out the Kamrath case
in Minnesota where implicit coercion
was indeed found and where damages
were awarded to the employee. The
courts will protect the employees
where there is implicit coercion.
The distinguished Senator from
Massachusetts says the employer will
make this request of the employee,
under certain circumstances. Why
cannot then the employee make a
similar request of the employer? Why
should he not have the right to make
a similar request?
I think indeed there has to be other
evidence. My friend from Masschu-
setts says that in the event the em-
ployer makes the request and the em-
ployee says no, there has to be other
evidence before you can dismiss the
employee. In the real world, other evi-
dence can always be found, and other
evidence is a very subjective type of
thing. The other evidence, I presume,
does not have to relate to the appear-
ance at hand.
Really that is not very much protec-
tion at all, and I ask that the employ-
ee have at least the same rights that
the employer has.
I would Say to my friend from Mas-
sachusetts, I note that my amendment
talks about administering a lie detec-
tor test to an employee or prospective
employee. I would tend to agree with
the Senator from Massachusetts when
he says that you can ask somebody
before he becomes an employee,
"Would you be willing to take a lie de-
tector test?" In the event a person
says no and the employer would no
longer consider that employee, I do
not understand that that is permissi-
ble under this law, and it is not really
covered by my amendment.
I wonder if the Senator from Massa-
chusetts and the Senator from Utah
would accept the amendment if we re-
moved the term "prospective employ-
ee" so that there would not be consid-
eration or a feeling, in the event a pro-
spective employee does not volunteer
to take a lie detector test, that he
would not be considered.
For instance, the employer does not
even really have to ask a prospective
employee. As the distinguished Sena-
tor from Massachusetts points out, the
employer can make it quite well
known to an employment agency, for
instance, that "we like employees who
will come and volunteer to take lie de-
tector tests." The employment agency
will find a way to say to a prospective
employee, "I would mention, if I were
you, when you talk to this fellow that
you suggest that you are willing to
take a lie detector test." That can
almost become a condition of employ-
ment. I agree.
In the event we take "prospective
employee" out of this, and it would
just be an "employee" rather than a
"prospective employee," that certainly
should make the amendment more
palatable.
As a businessman, I have never used,
and I wonder if the distinguished Sen-
ator from Utah is in the Chamber or
nearby because I would like to hear
his thoughts about it as well, but as an
employer over many years, employing
as many as 1,200 people at any one
time, and often having had experience
with theft and often having some very
difficult moments with employees
about it, I did not use it for employees
and had never even considered using it
f or prospective employees.
Would that make the amendment
more palatable, I would ask my friend
from Massachusetts?
Mr. KENNEDY. I would answer the
Senator, it really would not because
basically what we are talking about is
the real potential for coercion. In the
preemployment situation, what indi-
vidual is going to go to the extent of
bringing a case, paying the expenses,
following all the way through the
legal process in order to get, what, in
?
S 1715
terms of damages? It is basically unre-
alistic, and it is extremely difficult for
me to understand--
Mr. BOSCHWITZ. Would the?
Mr. KENNEDY. Let me just finish
one other point. It is extremely diffi-
cult for me to understand why an em-
ployee would take the test in the first
place when, under the OTA study it
says only half, "53 percent of the test
subjects were correctly identified by
the polygraphers." It is a flip of the
coin. That is what we are dealing with,
and the only way we can understand
It. It is difficult for me, in common
sense values, to think someone is going
in there to say voluntarily, "Give me a
polygraph" with a 50-percent chance
of being caught wrong, unless there is
going to be some type of coercion. We
permit it under limited circumstances
described as an investigatory tool.
Given the record that we have,
preemployment, it is virtually diffi-
cult, if not impossible, to expect that
there would be cases that would be
brought into the court system. In the
postemployment situation, which is
the Minnesota case, the Kamrath
case, that individual had to come into
court and demonstrate by the evidence
that they had nightmares and bed
wetting in order to get a judgment.
Now who in the world is going to do
that when we have testimony before
our committee that it has been used in
the States where they have these sort
of protections: will not be used to
coerce or solicit or required be taken.
Virtually the identical words.
I have difficulty being persuaded. I
understand what the Senator is trying
to do. I just find it difficult to be per-
suaded that even adjusting it from the
preemployment to the postemploy-
ment, without the kind of protections
that we included, that the polygraph
would be useful.
Mr. BOSCHWITZ addressed the
Chair.
The PRESIDING OFFICER. The
Senator from Minnesota.
Mr. BOSCHWITZ. I must tell you I
respectfully think that my friend from
Massachusetts has missed the point.
We will take out the "prospective em-
ployee." We will only leave in the "em-
ployee" so that you cannot submit a
person to a lie detector test as a condi-
tion of employment which, as I say,
really can be implicitly done. The em-
ployer does not have to say anything
to the employee directly. As you men-
tioned, he lets it be known to the em-
ployment agency in advance that he
wants employees who will take lie de-
tector tests. I can see where coercion
could occur, but an employee who is
already in the firm, if you want to put
them in the firm for 3 months or
something, fine, but take out the
words "prospective employee" wherev-
er it occurs in the amendment. Then
an employee should have the right.
I would ask my friend from Massa-
chusetts, if it is only 53 percent effec-
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S 1714 CONGRESSIONAL RECORD ? SENATE March 2, 1988
sometimes persuasive and sometimes
not around this body.
But I am not able nor would I at this
time give the assurances that we are
going to be willing to accept that on
this particular measure at this time.
Mr. METZENBAUM. Mr. President,
will the Senator from Massachusetts
be good enough to give me assurance
that he will protect my position before
closing down for the night?
Mr. KENNEDY. I Would be glad to
notify the Senator when we are clos-
ing or we are not able to make further
progress on further amendments. I
will certainly do that.
Mr. METZENBAUM. So I will have
? an opportunity. I do not wish to inter-
fere with the Senator's handling of
the bill. I want to be able to at least
have an opportunity to offer this.
Mr. KENNEDY. Yes; I will be glad
to notify the Senator.
Mr. President, I suggest the absence
of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The legislative clerk proceeded to
call the roll.
Mr. BOSCHWITZ. 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.
AMENDMENT NO. 1609
(Purpose: To permit an employer to admin-
ister a lie detector test to an employee if
the employee requests the test) -
Mr. BOSCHWITZ. Mr. President, I
send an amendment to the desk and
ask for its immediate consideration.
The PRESIDING OFFICER. The
amendment will be stated.
The legislative clerk read as follows:
The Senator from Minnesota