[Senate Report 108-110]
[From the U.S. Government Publishing Office]
Calendar No. 221
108th Congress Report
SENATE
1st Session 108-110
_______________________________________________________________________
UNITED STATES CONSENSUS COUNCIL ACT OF 2003
__________
R E P O R T
of the
COMMITTEE ON GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 908
TO ESTABLISH THE UNITED STATES CONSENSUS COUNCIL TO PROVIDE FOR A
CONSENSUS BUILDING PROCESS IN ADDRESSING NATIONAL PUBLIC POLICY ISSUES,
AND FOR OTHER PURPOSES
July 22 (legislative day, July 21), 2003.--Ordered to be printed
______
U.S. GOVERNMENT PRINTING OFFICE
19-010 WASHINGTON : 2003
COMMITTEE ON GOVERNMENTAL AFFAIRS
SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
ARLEN SPECTER, Pennsylvania RICHARD J. DURBIN, Illinois
ROBERT F. BENNETT, Utah THOMAS R. CARPER, Delaware
PETER G. FITZGERALD, Illinois MARK DAYTON, Minnesota
JOHN E. SUNUNU, New Hampshire FRANK LAUTENBERG, New Jersey
RICHARD C. SHELBY, Alabama MARK PRYOR, Arkansas
Michael D. Bopp, Staff Director and Chief Counsel
Kim Corthell, Professional Staff Member
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Susan E. Propper, Minority Counsel
Amy B. Newhouse, Chief Clerk
Calendar No. 221
108th Congress Report
SENATE
1st Session 108-110
======================================================================
UNITED STATES CONSENSUS COUNCIL ACT OF 2003
_______
July 22 (legislative day, July 21), 2003.--Ordered to be printed
_______
Ms. Collins, from the Committee on Governmental Affairs, submitted the
following
R E P O R T
[To accompany S. 908]
The Committee on Governmental Affairs, to which was
referred the bill (S. 908) to establish the United States
Consensus Council to provide for a consensus building process
in addressing national public policy issues, and for other
purposes, reports favorably thereon with amendments and
recommends that the bill as amended do pass.
CONTENTS
I. Purpose and Summary..............................................1
II. Background.......................................................2
III. Discussion of Legislation........................................2
IV. Legislative History..............................................4
V. Section-by-Section Analysis......................................4
VI. Evaluation of Regulatory Impact..................................9
VII. CBO Cost Estimate................................................9
VIII.Changes to Existing Law.........................................10
I. PURPOSE AND SUMMARY
S. 908 is a bill to establish the United States Consensus
Council (Council), an independent nonprofit entity that will
provide professional mediation services in cooperation with
Congress (and perhaps others) to help resolve difficult policy
issues by building consensus agreements among stakeholders.
Following the completion of a consensus-building process, the
Council will issue a report reflecting the results of its
consideration and efforts. This report is advisory and will not
be binding on the decision-makers, but should contain policy
solutions that would be acceptable to key stakeholders involved
in the issue.
II. BACKGROUND
The United States Consensus Council is modeled upon similar
entities that have operated in several states, including the
Montana Consensus Council and the Consensus Council, Inc. in
North Dakota. These Councils have addressed a wide variety of
issues at the state level, such as hazardous waste treatment,
mental health care, and urban sprawl.
Although it is the role of Congress to find solutions to
the country's important public policy issues, the creation of
the United States Consensus Council may be useful to Congress
when it is faced with issues that are particularly complex or
contentious, or that cross committee jurisdictional lines. In
such cases, the Council may identify the range of stakeholders,
assist those stakeholders to clarify and narrow their
differences, and find areas of common ground on which they can
agree. The Council will address only issues that are chosen in
cooperation with appropriate leaders of Congress from both
parties and the results reported by the Council based on its
efforts will be solely advisory, subject to the normal
legislative process.
III. DISCUSSION OF LEGISLATION
Senator Collins offered an amendment to S. 908 at the
Committee's markup on June 17, 2003. The amendment, which was
adopted by the Committee, clarifies the relationship of the
Council with the United States Institute for Environmental
Conflict Resolution (USIECR) and the Federal Mediation and
Conciliation Service (FMCS); modifies the procedure for making
presidential appointees to the Council's board of directors;
and changes the requirement for the initial meeting of the
board of directors.
As amended, S. 908 establishes the United States Consensus
Council as an independent nonprofit corporation under the
District of Columbia Nonprofit Corporation Act. The Council
will not be an agency or instrumentality of the United States.
The Council's powers are vested in a 12 member part-time
Board of Directors. Each of the leaders of the majority and
minority in the House of Representatives and the Senate may
select two board members. The President may select four board
members, two members from each political party. The President's
appointment of members of the opposing party shall only be on
the recommendation of the congressional leaders from that
party. All of the President's initial appointments to the board
must be made on the same date. The members of the board will
not be subject to Senate confirmation.
Members of the board will not be federal officers or
employees and may not be selected from among those who are
federal officers or employees or Members of Congress. Directors
will serve no more than two four-year terms, except that two of
the first directors selected by the President and the first
Directors selected by the Speaker and the Minority Leader of
the House of Representatives will be initially appointed to
terms of two years, and may then be reappointed to no more than
two additional four-year terms.
The Council is required to have its initial board meeting
within sixty days of the appointment of at least one-third of
the board. However, this meeting may be held only when equal
numbers of board members from each of the major political
parties have been appointed as of the date of this meeting. At
the initial meeting, the board is required to provide for the
incorporation of the Council and to adopt interim bylaws and
guidelines. The articles of incorporation, bylaws and
guidelines will be effective only until the first board meeting
after the appointment of all board members at which time these
articles, bylaws and guidelines will be ratified or modified.
The purpose of this provision is to establish a process for the
expeditious establishment of the Council.
The Board will select a President, who will be the chief
executive officer of the Council and carry out the functions of
the Council subject to the supervision of the Board. The
President will serve as a non-voting member of the Board and
will be compensated at a rate not to exceed level II of the
Executive Schedule. The Council may request that federal
employees be detailed to the Council from any federaldepartment
or agency or from any Congressional office on a reimbursable basis.
The Committee has amended the bill in order to express
unequivocally the intent of its sponsors and the Committee to
limit the purpose and programs of the Council to ensure that
there is no duplication, redundancy, or conflict in the
Council's activities with the purposes and programs of the
United States Institute for Environmental Conflict Resolution
or the Federal Mediation and Conciliation Service. The
Institute and Service each provide services that are valuable
to the legislative, executive, and judicial branches of the
U.S. government, as well to the states, Indian tribes, local
governments, and members of the public. It is the Committee's
intent that the Council carry forward its activities in a
manner that supports and does not conflict with, duplicate, or
otherwise impede the activities of the Institute or Service. In
this regard, the Committee has directed that the Council
consult with the Institute and Service to identify
opportunities for collaboration in fulfillment of their
respective purposes and programs and has required that the
Council seek the consent of the Institute or Service as a
precondition to undertaking any activity that relates to a
matter within the authority of the Institute or Service. The
Committee expects the Institute and Service and Council to work
in a collaborative manner as appropriate to advance the central
purpose shared by all three entities, namely, avoiding,
reducing, and resolving societal conflicts.
The Council may receive appropriated funds from Congress
and may also accept private sector contributions for its
activities. It must report annually to Congress and the
President on its activities to disclose the sources of funding
it receives and the purposes for which the funds were
contributed. The report must also include a copy of the
Council's audited annual financial statement. GAO will review
the annual report.
The Council is prohibited from carrying out any lobbying
activities except on matters related to its own appropriation
and authorization. It is the intention of the Committee that
the Council remain neutral on substantive policy issues.
On dissolution of the Council, all funds received from
appropriations, including any interest earned on appropriated
funds, will revert to the United States Treasury.
IV. LEGISLATIVE HISTORY
S. 908 was introduced on April 17, 2003, by Senator Collins
and was referred to the Committee on Governmental Affairs. The
bill was co-sponsored by a bipartisan group of Senators:
Daschle, Conrad, Santorum, Dorgan and Leahy. At the Committee's
markup on June 17, 2003, S. 908 was reported out with a Collins
amendment by voice vote. Members present were Collins,
Lieberman, Akaka, Coleman, Durbin, Fitzgerald, Lautenberg,
Levin, Pryor, Sununu and Voinovich.
A companion bill, H.R. 2459, was introduced in the House of
Representatives on June 12, 2003, by Representative Dennis
Rehberg and was referred to the House Committee on Government
Reform.
V. SECTION-BY-SECTION ANALYSIS
Sec. 1. Short title
This section states that the Act may be cited as the
``United States Consensus Council Act of 2003.''
Sec. 2. Findings and purpose
Paragraph (a). Findings. Paragraph (a) sets forth
congressional findings which: (1) recognize that there is
increasing success in addressing critical public policy issues
through consensus building approaches; (2) state the need for a
national Council to use such approaches on legislative policy
issues of national importance; (3) assert that such a Council
may enroll specific stakeholders, both public and private, to
build agreements that may be implemented by appropriate
authorities; (4) conclude that such a Council will strive to
create agreements that integrate differing perspectives into
highest common denominator solutions; (5) state that such a
Council is an appropriate investment by the people of this
Nation; (6) state that such a Council could prevent
polarization on emerging policy issues; (7) recognize that such
a Council may contribute to a renewed sense of civility and
respect for different points of view; and (8) state that the
Council may become a repository of wisdom and experience on
public policy collaboration.
Paragraph (b). Purpose. This paragraph states that the
purpose of this Act is to establish an independent, nonprofit,
national Council to serve the Nation by seeking to produce
consensus on policy issues of national importance.
Sec. 3. Definitions
This section provides the definition of three terms.
``Board'' means the Board of Directors of the Council.
``Council'' refers to the United States Consensus Council.
``Director'' means an individual appointed to the Council's
Board of Directors.
Sec. 4. United States Consensus Council
Paragraph (a). Establishment. Paragraph (a) provides for
the establishment of the United States Consensus Council.
Paragraph (b). District of Columbia Nonprofit Corporation;
Status; Restrictions. Paragraph (b) requires that the Council
be incorporated as an independent, nonprofit corporation under
the District of Columbia Nonprofit Corporation Act, and that
the Council shall be subject to all the requirements and
oversight, as applicable, pursuantto this Act. It further
states that the Council is not an agency or instrumentality of the
United States.
Paragraph (c). Trade Name and Trademark Rights; Vested
Rights Protected; Condition for Use of Federal Identity.
Subsection (c)(1) authorizes the Council to have the sole and
exclusive right to use and to authorize the use of the term
``United States Consensus Council,'' as well as any emblem,
badge, seal, or other mark of recognition adopted by the
Council. Subsection (c)(2) restricts the Council's ability to
reference the United States Government or Nation in its name or
in any mark of recognition to those fiscal years in which the
Council has received an authorization of appropriations, or
appropriations, by law.
Sec. 5. Powers and duties
Paragraph (a). In General. Paragraph (a) states that the
Council may exercise all the authorities conferred by the
District of Columbia Nonprofit Corporation Act that are
consistent with this Act.
Paragraph (b). Description of Specific Activities.
Subsection (b)(1) describes some of the specific activities
that the Council may undertake in carrying out its purpose of
assisting in the development of consensus on national policy
issues. These activities include designing consensus processes,
establishing relationships with other institutions, both
private and public, that will be able to assist in such
processes, and coordinating with existing federal entities to
avoid duplication. Subsection (b)(2) provides that the Council
may not take any action relating to a matter within the
authority of the U.S. Institute for Environmental Conflict
Resolution and the Federal Mediation and Conciliation Service
without the consent of the Institute or Service; duplicate the
activities of the Institute or Service; or interfere with the
Institute or Service in carrying out their respective statutory
responsibilities. The Institute or Service is required to
respond to a request for consent within 30 days, unless the
Council and the Institute or Service agree otherwise.
Subsection (b)(3) sets out some of the steps the Council may
take in designing a consensus process for a specific policy
issue, and requires the Council to consider such factors as the
degree of congressional interest in the issue. It also allows
the Council to undertake a full range of activities to support
its consensus building efforts. Subsection (b)(4) authorizes
the Council to engage in any other activity that is consistent
with its mission.
Paragraph (c). General Authority. Paragraph (c) grants the
Council the authority to do any and all lawful acts necessary
or desirable to carry out the objectives and purposes of this
Act.
Paragraph (d). Guidelines for Council Operations. Paragraph
(d) directs the Council to develop guidelines, as necessary,
for matters related to: (1) personal service contracts; (2)
standards for Directors, employees, and agents to avoid
conflicts of interest; (3) fund-raising policies; (4)
procedures to ensure that participants in the Council's
consensus-building processes are informed of the Council's
sources [and purpose] of funding and any specified purpose of
such donations; (5) duties and responsibilities of the Council,
its Board, officers, employees, and agents; and (6) the
establishment of advisory committees or similar working groups.
Sec. 6. Board of Directors
Paragraph (a). Vested Powers. Paragraph (a) vests the
powers of the Council in the Board of Directors unless
otherwise specified in the Act or delegated by the Board.
Paragraph (b). Appointments. Paragraph (b) provides for the
appointment of the 12 voting members of the Board, who may be
private citizens or state or local employees. Four appointments
are given to the President, no more than 2 of whom shall be of
the same political party. Members of the opposing party shall
only be appointed by the President on the recommendation of the
leaders of Congress from that party. The President shall make
all four of the initial appointments on the same date. Two
appointments each are given to the Speaker of the House of
Representatives and the Minority Leader of the House of
Representatives, and two appointments each are given to the
Senate Majority and Minority Leaders.
Paragraph (c). Term of Office: Commencement and
Termination, Interim and Remainder Service, Limitation.
Subsection (c)(1) provides that the terms of Directors are four
years, with a limit of two consecutive terms. The initial
appointees of the Speaker and Minority Leader of the House and
two of the President's appointees will each have a two-year
term with the possibility of serving two additional four-year
terms. This will allow for the ``staggering'' of appointments
to avoid turnover of the entire Board in any given year.
Subsection (c)(2) states that a Director who is appointed to
replace another Director whose term has not expired shall be
appointed to serve the remainder of that term. Subsection
(c)(3) provides that the President of the Council will serve as
a nonvoting Director of the Board.
Paragraph (d). Qualifications. Subsection (d)(1) provides
that a demonstrated interest in the mission of the Council or
expertise in consensus-building shall be considered in making
appointments to the Board of Directors. Subsection (d)(2)
precludes any person who is a federal officer or employee or a
Member of Congress from serving as a Director to avoid the
potential for conflicts such individuals might have with
matters that could be addressed by the Council.
Paragraph (e). Removal From Office. Paragraph (e) provides
that a Director may be removed at any time by the appointing
official (or his or her successor in office) or by a process to
be established in the bylaws of the Council.
Paragraph (f). Meetings; Notice in Federal Register.
Paragraph (f) requires the Board to establish bylaws governing
its meetings. Subsection (f)(1) provides for an initial
organization meeting to be held within 60 days after the
appointment of at least one-third of the members to adopt
interim bylaws and guidelines, which shall be effective only
until the first board meeting after the appointment of all
members. The initial meeting may be held only if equal numbers
of members from each of the two major political parties are
appointed to the board as of the date of that meeting.
Subsection (f)(2) mandates that the Council shall meet at least
semi-annually with a majority of the Directors in office
constituting a quorum. Subsection (f)(3) requires that all
governing meetings of the Board be noticed in the Federal
Register and remain open to the public, subject to narrow
exceptions relating to personnel issues, litigation and matters
involving the status of individual Directors.
Paragraph (g). Compensation. Subsection (g)(1) provides
that a Director may be compensated at the daily rate payable
for a position at level IV of the Executive Schedule under
section 5315 of title 5, United States Code, for each day in
which the Director is engaged in the performance of duties of
the Council. Subsection (g)(2) makes clear that a Director may
be compensated under this paragraph if he or she notifies the
Board of an election to receive compensation. Subsection (g)(3)
states that such compensation will be available only for duties
performed after the date of this notification.
Paragraph (h). Travel Expenses. Paragraph (h) provides that
a Director may receive reasonable travel, subsistence, and
other necessary expenses while away from home or regular place
of business in the performance of duties for the Board.
Sec. 7. Officers and employees
Paragraph (a). President of Council. Paragraph (a) requires
the Board to appoint a President to be the chief executive
officer of the Council. The President will carry out the
functions of the Council under the supervision and direction of
the Board.
Paragraph (b). Compensation of President of the Council.
Paragraph (b) provides that the annual rate of pay of the
President may not exceed the rate payable for a position at
level II of the Executive Schedule under section 5313 of title
5, United States Code.
Paragraph (c). Assignment of Federal Officers or Employees.
Paragraph (c) permits federal officers or employees to be
detailed to the Council on a fully reimbursable basis. There
will be no impact on the federal employment benefits and rights
of such an officer or employee during the course of the detail.
Paragraph (d). Personnel. Paragraph (d) authorizes the
President of the Council to appoint and fix the compensation of
such additional personnel as is determined necessary, and
states that neither the President nor any other employees of
the Council will be employees of the United States.
Paragraph (e). Compensation for Services or Expenses;
Prohibition on Loans to Council Directors and Personnel.
Paragraph (e) prohibits inurement of any Council resources to
any employee, agent, or member of the Council, either during
the life of the Council or upon dissolution, and prohibits the
Council from making loans to such persons.
Sec. 8. Procedures and records
Paragraph (a). Monitoring and Evaluation of Programs.
Paragraph (a) directs the Council to monitor and evaluate
Council programs to ensure compliance with the provisions of
this Act and all other legal requirements.
Paragraph (b). Accounts of Receipts and Disbursements;
Financial Reports. Paragraph (b) requires the Council to keep
complete records of accounts, with separate and distinct
accounts of receipts and disbursement of Federal funds, and
records of the purpose of any donation for which a purpose is
specified. This paragraph also requires the Council's annual
financial report to identify the use of all funding and to give
a clear description of the full financial situation of the
Council.
Paragraph (c). Minutes of Proceedings. Paragraph (c)
requires the Council to keep minutes of the proceedings of the
Board and of any committees having authority under the Board.
Paragraph (d). Record and Inspection of Required Items.
Paragraph (d) delineates some of the specific records that the
Council must maintain and make available to any Director.
Subsection (d)(1) specifies that these records include the
names and addresses of Directors, legal documents pertaining to
the Council, minutes of proceedings, documents relating to
applications and proposals or to grants or contracts issued or
received, and financial records of the Council. Subsection
(d)(2) provides that any Director or attorney of a Director may
inspect these records at any reasonable time for any proper
purpose.
Paragraph (e). Audits. Paragraph (e) requires that the
accounts of the Council be audited annually in accordance with
generally accepted auditing standards by an independent
certified public accountant or independent licensed public
accountant. The person(s) conducting the audit must have full
access to all records and documents necessary to conduct the
audit.
Paragraph (f). Annual Report to Congress; Copies for
Public. Subsection (f)(1) requires the Council to provide an
annual report to the Congress and the President, within six
months after the close of the fiscal year. Subsection (f)(2)
specifies that the report must include a description of the
Council's activities for the prior year, a copy of the
independent audit conducted pursuant to paragraph (e), and a
disclosure statement indicating the source of all funds
received in the prior year and the purposes for which the funds
were contributed. Subsection (f)(3) requires that the report be
made publicly available.
Paragraph (g). GAO Review. Paragraph (g) requires that the
annual report submitted to Congress pursuant to paragraph (f)
be simultaneously submitted to the General Accounting Office
for its review.
Sec. 9. Prohibition on lobbying activities
Paragraph (a) provides that the terms ``covered executive
branch official,'' ``covered legislative branch official,''
``client,'' ``lobbying activities,'' and ``lobbying contact''
have the meaning given in the Lobbying Disclosure Act of 1995,
and provides an exemption for communications with covered
executive and legislative branch officials relating to the
appropriations for the Council or other legislation directly
affecting the Council.
Paragraph (b) prohibits the Council from engaging in
lobbying activities.
Sec. 10. Funding
Paragraph (a). Authorization of Appropriations. Paragraph
(a) authorizes the appropriation of $2 million for FY 2003 and
such sums as are necessary for FY 2004 through 2008.
Paragraph (b). Availability. Paragraph (b) provides that
the funds authorized in paragraph (a) will remain available to
the Council until they are expended.
Paragraph (c). Availability of Funds from FY2003. Paragraph
(c) provides that any funds authorized to be made available
through the General Services Administration during fiscal year
2003 for the purposes of this Act shall remain available until
expended.
Paragraph (d). Investment of Funds. Paragraph (d) permits
the funds appropriated under paragraph (a) to be invested only
in instruments backed by the full faith and credit of the
United States or in a federally insured financial institution.
The interest earned on such funds may be used only for the
purposes provided under this Act.
Sec. 11. Dissolution
This section provides that upon dissolution or final
liquidation of the Council, all funds appropriated by the
United States, including any interest attributable to such
funds, shall be returned to the United States Treasury. Any
other funds held by the Council will be handled under the laws
of the District of Columbia applicable to nonprofit
corporations.
VI. EVALUATION OF REGULATORY IMPACT
Paragraph 11(b)(1) of rule XXVI of the Standing Rules of
the Senate requires that each report accompanying a bill
evaluate ``the regulatory impact which would be incurred in
carrying out this bill.''
The enactment of this legislation will not have significant
regulatory impact.
VII. CBO COST ESTIMATE
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 23, 2003.
Hon. Susan M. Collins,
Chairman, Committee on Governmental Affairs,
U.S. Senate, Washington, DC.
Dear Madam Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 908, the United
States Consensus Council Act of 2003.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
S. 908--United States Consensus Council Act of 2003
S. 908 would establish the United States Consensus Council,
consisting of 12 members to be appointed by the President,
Senate Majority and Minority Leaders, and the Speaker and
Minority Leader of the House of Representatives. The council
would provide advice to the Congress on policy issues of
national importance through a collaborative process. The bill
would authorize the commission to accept and spend private
donations and would direct the General Accounting Office to
review the council's annual report. The bill would authorize
the appropriation of $2 million in 2003 and such sums as may be
necessary in subsequent fiscal years to carry out its
provisions.
For this estimate, CBO assumes that the bill be enacted
near the end of fiscal year 2003. CBO estimates that
implementing the legislation would cost about $2 million
annually beginning in 2004, assuming appropriation of the
necessary amounts. The bill would authorize the commission to
earn interest on unspent appropriated funds and spend that
amount without further appropriation. CBO estimates that direct
spending funded by private contributions and interest earnings
would be insignificant.
S. 908 contains no intergovernmental mandates as defined in
the Unfunded Mandates Reform Act and would impose no costs on
state, local, or tribal governments.
S. 908 would not allow any business or individual to use
the term ``United States Consensus Council'' or mark of
recognition without the consent of the council. If a company or
individual is found to be using the name currently and the
council does not grant permission for such usage, then the bill
would impose a mandate on the private-sector entity. The cost
of such a mandate would be equal to the fair market value of
the name. In such an instance, the federal government would be
required to compensate the owner. A search through the Internet
and the U.S. Trademark and Patent Office database found no
other use of that name. Although such a search is not
exhaustive, CBO expects that the bill would probably not impose
a private-sector mandate.
The CBO staff contact for this estimate is Matthew
Pickford. This estimate was approved by Peter H. Fontaine,
Deputy Assistant Director for Budget Analysis.
VIII. CHANGES TO EXISTING LAW
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee notes that the
legislation is a free standing bill that will make no changes
to any existing law.