March 23, 1977
Page 8836
Mr. MUSKIE. Will the Senator yield?
Mr. DURKIN. Yes.
Mr. MUSKIE. Pursuant to the line of the distinguished Senator from Kansas, I suppose I am overly sensitized to discrimination and treatment as a result of the votes yesterday, but rule XLV, posed by the committee, reads as follows, and this applies to both unearned and earned income:
No Member, officer or employee shall engage in any outside business of professional activity or employment for compensation which is inconsistent or in conflict with the conscientious performance of his official duties.
I take it the implication of that language is to inhibit or restrict the very thing the Senator's amendment is designed to inhibit or restrict with respect to all outside income.
If the Senator proposes a stricter standard than that on earned income, I find it hard to understand why he does not apply the stricter standard to unearned income as well as earned income.
The Senator seems to have the same instinct as the committee, to zero in on one form of outside income while not doing so with respect to others.
I mean, if the organization of the outside activity meets the standard of the Senator's amendment, why then should we permit people to get investment income from—
Mr. DURKIN. If the Senator will yield—
Mr. MUSKIE. If I might finish my question.
Why then should we permit people to get investment income from the same kinds of organizations?
I find that very difficult to understand. I explored the possibility earlier to the Senator of expanding it in order to include it and the Senator sent back the message that he was not interested in that.
So I cannot resist asking him why he persists in closing his eyes to similar conflicts from unearned income?
Mr. DURKIN. I am happy to answer that question.
This is not the only amendment that I have at the desk. I have been assured — in fact, we have a unanimous consent agreement — that we will be able to get those amendments up before the debate is concluded.
I have another amendment, No. 101, which applies the same conflict of interest standard that is required of Federal judges, that they not participate — and the Senate not vote — once they have disclosed that portfolio, that they cannot vote on issues that would affect their performance. If they have a bundle of oil company stock, then they cannot vote on oil company stock. That is another problem.
Mr. MUSKIE. That is not quite as strict a sanction as depriving them of the income. Why does the Senator not apply that standard to earned income?
Mr. DURKIN. I do not think it is practical.
Mr. MUSKIE. I know it is never practical when it applies to earned income. It is only practical when it applies to unearned income, as I find the Senate is disposed.
Mr. DURKIN. I think the problem is that if someone came to this body with a big block of oil company stock—
Mr. MUSKIE. Is that not salable on the market? We ask people in the executive to divest themselves.
Mr. DURKIN. I ask of the Senator the same respect he asked of me, to be allowed to answer or to state a question. I was trying to reply.
The point is that if someone came to this body with a block of oil company stock, I do not see any way under our Constitution by which he can be forced to divest himself of that stock. I think it can be put in a blind trust, and the committee accepted the Danforth amendment. However, I think it can be said that it is unethical for that person to vote on that stock and vote the interest.
Mr. MUSKIE. I ask the Senator this: I do not believe that it is constitutional to divest Members of the right to earn conflict-free income. That did not deter the Senator from voting for an amendment that has that effect. I do not understand this one-sided deterrent effect of the Senator's approach to these problems.
Mr. BIDEN. Mr. President, will the Senator yield?
Mr. DURKIN. I yield.
Mr. BIDEN. Mr. President, how much time remains on this side?
The PRESIDING OFFICER. Three and a half minutes.
Mr. BIDEN. The Senator from Maine is right.
Mr. DURKIN. I reserve 2 minutes.
Mr. BIDEN. He is right from the standpoint of the Senator from Delaware. But, again, in response to the Senator from Kansas, the reason why the Senator from Delaware cosponsored this one is that it is the only one that can win now. I will be happy to join the Senator from Maine in a fight with respect to the second portion of the question, of applying the same standard to earned income. But I want to make sure that we tie them up one at a time.
I watched the vote last night, and I have watched the votes the last 3 days. If we tie this amendment to earned income, it will not be agreed to, in my judgment. I would like to have it adopted, and then I will stand on the floor and fight with the Senator — not as eloquently as he — as long as he wants to see if we can have it adopted for earned income. That is just practical politics.
Mr. MUSKIE. What the Senator is saying is that we are going to discipline only those who do not have the votes to protect themselves.
Mr. BIDEN. What the Senator is saying is that we discipline where discipline is needed, as much as we can. Discipline is needed here, and discipline is needed with regard to earned income. The mere fact that we allow unearned income to go undisciplined is not a logical argument to allow earned income to go undisciplined.
Mr. MUSKIE. Earned income does not go undisciplined, under the language which I read, I remind the Senator. It is the same standard that is applied—
Mr. DURKIN. Mr. President
Mr. MUSKIE. I am not to speak, either, I gather.
Mr. DURKIN. I reserve the last 2 minutes.
Mr. President, will the Senator from Wisconsin yield some time to the Senator from Maine?
Mr. NELSON. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator has 30 minutes.
Mr. NELSON. Before I yield any time, is the Senator willing to give us another virtuoso performance, as he did Friday night?
Mr. MUSKIE. No. I am just going to say one thing.
Mr. NELSON. How much time does the Senator want?
Mr. MUSKIE. Thirty seconds.
Mr. NELSON. I yield the Senator 1 minute.
Mr. MUSKIE. I think this is another one of those phony amendments. I support this, as I support the language in committee amendment No. 45, which says that you should not accept income that is in conflict with your duties as a Senator. But I am not interested in this one-sided standard business which the Senator from New Hampshire is prone to adopt, as the committee was. I will support the amendment if it is applied to unearned income. The fact that the Senator can get votes only to apply it to earned income shows that he is interested in a one-sided standard.
Mr. DURKIN. Every journey starts with a first step.
Mr. MUSKIE. It certainly does.