Senator LEVIN. I take the other side of that coin, I am afraid, that we should not be imposing costs on the private sector without knowing what they are, and I think that

Representative SWETT. And that is what we have not done in the

past.

Senator LEVIN. We are trying to change that, though.

Representative SWETT. As an architect and the only architect in this century in the House and the Senate, I would say that I believe that the costs relating to space and facility construction are not as great as some people have estimated, and I believe that your request of having some ball park figure is a reasonable one, and we will do our best to accommodate you.

Chairman GLENN. Senator McCain.

Senator MCCAIN. Thank you, Senator Glenn.

It is with some hesitancy, with Senator Stevens here, that I reopen this wound, but I think that what Congressman Swett just pointed out in answer to Senator Levin's query is really what we should not lose sight of here. And I am sure our further witnesses will testify to this fact: There is a belief amongst the overwhelming majority of the American people that there is a disconnect between them and the Congress of the United States, that we live under a different set of rules, in an insulated atmosphere, an environment where virtually every one of our needs or whims are taken care of, and we do not have to live like the rest of the American people. Now, I say to my friend from Alaska, if that view continues to prevail to the degree and the intensity that it does today, the people will lose faith in their government, and when people lose faith in their government, serious and dangerous things may happen.

Now, I go on talk shows all the time. I enjoy hearing the insults of my constituents and people all over the country, and, I will tell you, I am not on a talk show for more than 15 minutes that one of the callers says, "Senator, why can't you live like we do? I have to comply with the Americans With Disabilities Act, I had to change my whole small business around to comply with an act that you passed, but you don't have to.

Now, the fact is we do. We have got an office now set up in the Senate to try to comply with that. But the perception out there is worse than the reality, and it seems to me that we should take every reasonable step to bring ourselves in line with what the rest of the American people have to live with and put up with. They have to pay legal fees.

By the way, on the issue of small business people striking or not striking, the last I heard, about 98 percent of small business in America are not unionized, so I am not sure that is an issue.

Another aspect of this is about estimating the costs. We just had a good markup, Senator Glenn, on unfunded mandates, and one of the issues that Senator Dorgan brought up was an amendment about estimating the cost of the private sector, as well as to the taxpayers, if we pass laws, that should be a part of the information.

Now, we can get into some details very quickly, as we did, who is going to do what and under what circumstances, and how do you enforce this, and all of that. But I can tell my friend from Alaska this: If we do not begin to live like the American people do, under

the same rules and regulations under the environment and have to be in compliance with laws that we pass, this system of government as we know it is in some danger. I do not predict that the American people are going to take to the streets. But I do predict that you will see greater and greater cynicism and greater and greater anger manifested every 2 years in the electoral process.

Now, it seems to me that between Senator Smith, who has been heavily involved in this, Congressman Shays and Congressman Swett and others, that we ought to be able to get together and come up with a package and, if necessary, phase it in, and if necessary, delay certain compliance, and again if necessary, point out some exceptions that cannot come to be-no, we cannot build three more House or Senate office buildings. But, I will tell you what, I will compare the salary of my staff and the salary of all congressional staffers with that of the rest of the American people, and, I will tell you, they do pretty well up here.

Now, I am sure I have offended every staff member by saying that, but the fact is the average salaries around here are pretty good, and the lifestyle ain't bad, because we go into recess all the time

Chairman GLENN. John, if I could interrupt just a second, the vote is on. I will run over there, and if you would keep going as long as you can, you and Senator Stevens, I will get back as fast as I can.

Senator MCCAIN. Mr. Chairman, I will end up. I just think that the message is clear from the American people: They want us to live like they do. They want us to stop passing laws that exempt ourselves, which we are doing lately. But we have now got to go back and repair those areas that for certainly some legitimacy to the constitutional argument that has been articulated so well by others who were critical of this movement, but I am worried about the American people's faith in their Congress. I think it is eroded and I continue to see it erode, and I would like to see us all work together to try and cure it.

Congressman Shays, please?

Representative SHAYS. Senator, I just want to say that—

Senator STEVENS [presiding]. Gentlemen, pardon me, could I just interrupt for a minute? Senator Smith is going to have to make his statement and go to vote. Could we listen to the Senator here for just a few minutes, and then we will get back to what comments we make? I understand that the Chairman will be back to have a further dialog with you, if that is possible.

Senator Smith.

TESTIMONY OF HON. ROBERT SMITH,1 U.S. SENATOR FROM THE STATE OF NEW HAMPSHIRE

Senator SMITH. Thank you very much, Mr. Chairman, for your courtesy. I appreciate that and apologize to my colleagues.

I have a statement for the record which I will not read. I think, based on the conversation and the debate here, I think it would be easier just to point out a couple of things. In essence, the case that is made here by my colleagues is where I am on the issue. The dif

ference between the Swett and Shays proposal and my own really gets down to the fundamental disagreement that I have with them, is that their proposal would reserve to the Congress the power to police itself.

Getting into the perception issue, there is no way that the American people believe that Congress will police itself in this area, and I think it will not do it. It is a half-way reform, which is why my legislation I think goes much more to the heart of the issue.

But I would say to Senator Stevens, you make some excellent points, and I know how committed you are to this institution and keeping it the respected institution that it must and should be. But I would say I would consider it a victory and fold my cards, if Congress were to change these onerous regulations on business like OSHA. If we have to build three more buildings to take care of problems in the U.S. Senate or in Congress, then there is something wrong with OSHA, and those same regulations are just as onerous on business and we hear businesses complaining all the time. I think it is time we listened to them.

So I think, just speaking for myself, that although I have a bill, if in fact this debate brings the changes that we would like in that legislation, I would consider that a big victory.

There has been a lot of quoting of Madison regarding the principle that all laws should be made to operate as much on the lawmakers as upon the people, but I think, with respect, Madison never intended that Congress would be above the law and be allowed to totally enforce all the changes. I think we should live under the judicial and the executive regulations, like everyone else. Now, realizing that could be a problem, but I think if we get these onerous regulations off the books, I think this is where the debate will ultimately take us, which is one of the reasons why I have come in with this bill. So I think that is essentially where I

am.

I would just like to respond to one thing regarding the separation of powers issue, and it is a final point that I will make. Senator Stevens, you said bringing Congress under the law would violate the constitutional provision of separation of powers. I do not believe that necessarily holds up under serious analysis.

The fact is that tax and criminal laws, for example, are fully enforceable by the judicial and executive branch against Members of Congress, and if that does not pose a separation of powers, then I do not see why the difficulties with respect to the enforceability of any other laws pose a problem.

Any Congressman or Senator is subject to the law. We have a Congressman now under indictment, and a Senator under indictment. So I think that the laws do apply to Members of Congress, both executive and judicial, and I think that we should not be exempt from them, and I do not think the separation of powers issue really will withstand serious scrutiny, although I think there is a point to be made.

So I would just close on that point, to say, one, I think that reform is necessary in those laws. If we cannot do that, then we will have to force Congress to live under the same laws that it imposes. on everybody else. I think that is the right thing to do, but I think the way to do it is to allow the executive and the judicial branch

to be the enforcers, not Congress, which is where I dramatically disagree. I do not think that the perception out there will be corrected on that basis, but motives are great, and I understand where you are coming from on that point. I support you. I just think you do not go quite far enough.

Thank you.

Senator STEVENS. Senator, I do not disagree with you with regards to personal liability for those laws that apply to all individuals. I do disagree with you, when it comes down to an institutional approach, the Congress. I think many of the things that disturb our friends from the House and you come from the regulatory phase of the Federal Government. They bother me, too.

Take wetlands, for instance: There is no wetlands law. That was an interpretation by the court and expansion by an executive agency and imposed a whole series of new burdens upon the private and public sector, except for the Congress. It does not affect the Congress. But the wetlands has certainly increased the cost of living in the West and is really turning the whole country into a different country. We are getting some court decisions finally to put those regulations back in the box a little bit. But it is the regulatory power of the Federal Government that I hear about when I go to my home State. It is the cost of government that I hear about more than anything else.

And if I have ever seen a serious proposal that would increase the cost of running one segment of the U.S. Government to the taxpayers, it is this series of bills. Now, I do not doubt that our employees have the right to some protection, but I have never had an employee come up to me and say I do not believe that I am fairly treated because the age discrimination law does not apply to me, or I do not think I am fairly treated because the Fair Labor Standards Act does not apply to me.

The people out there that are saying they ought to apply these laws to Congress are people that do not want them to apply to the private sector, and they think if we apply them to ourselves, that we will somehow change those laws. I respectfully tell you, when the bill comes up again, the bills are going to come before us right now, we have cut the GAO severely, we have cut the Library of Congress severely, we have cut every congressional agency this year severely.

Yet, all of these bills will increase the cost to the taxpayers to support those agencies. And I challenge you to say and pledge that you will support increasing the taxpayers' funding of the GAO, the Library of Congress and all these other agencies, if we apply these laws to them. And they have been operating all through the period of the 1930's, the 1940's, the 1950's, the 1960's, the 1970's, the 1980's, and now into this part of the 1990's, those laws have been applied and I do not think that they have failed to act properly for the Federal taxpayer. I do not think the taxpayers want those

costs.

Gentlemen, the Chairman will be back in a minute, if you want to argue with him more, but you are going to argue for a long time with me on this, because I do not think the taxpayers ought to pay

Senator MCCAIN. Let me make one point. I have never had an employee come up and tell me that they have been discriminated against, as Senator Stevens put. I would say there have been numerous private surveys taken where many employees here have felt that they are the victim of numerous kinds of discrimination, and maybe it is because we do not have the proper mechanism to air those grievances, that we do not see that. In fact, there is a view that there are more serious problems here than in some parts of government.

Senator Glenn will be right back.

[Recess.]

Chairman GLENN. The hearing will resume.

I am sorry we had to break, but that is the nature of the business around here.

The next panel, panel No. 1, is Norman Ornstein, resident scholar of American Enterprise Institute; Thomas Mann, director of governmental studies, Brookings Institution; and Nelson Lund, associate professor of law at George Mason University School of Law.

We welcome you this morning and look forward to your testimony. Norm, if you would lead off, we would appreciate it.

TESTIMONY OF NORMAN ORNSTEIN, RESIDENT SCHOLAR, AMERICAN ENTERPRISE INSTITUTE

Mr. ORNSTEIN. Thanks very much, Mr. Chairman. Thanks for the privilege and opportunity to testify this morning.

One thing I have learned this morning is that somebody is very likely to introduce a bill soon to provide a high-speed rail from Senator Stevens' house right down here to the Dirksen Building. Chairman GLENN. On days like this, it would be welcome. Mr. ORNSTEIN. I do not know who will pay for it, though.

Let me just make a few initial comments, so we can leave a lot of time for the inevitable give-and-take that we will want. The first point is to reiterate one that virtually everybody has made this morning, but I think has to be made.

There is no subject now that inflames the public more, when it comes to Congress, than this one. Even if we had a system that was working close to perfectly through the informal mechanisms that have existed in the past, there is an enormous danger here that, if action is not taken to diffuse this issue, something far worse will happen inside the institution.

And those who have misgivings, including misgivings because of cost, which are real misgivings, really I think have to be sensitive to the reality that if we do not act reasonably quickly on this one, getting at least a little bit ahead of the curve or getting caught up with the curve of public opinion, then we may be forced to take action that is far more destructive of the prerogatives of the institution and of the taxpayers' purse, as well.

A second point, the separation of powers argument I believe is a very real one, and the Office of Compliance, it seems to me, really does solve the problem. But there are a couple of things that have to be said here. It works, if you have an office that has real independence and significant enforcement powers.

The more you move toward taking away that independence, the more the problem that Senator Levin raised of mistrusting the of