Transcript of March 30, 2000
4 ADVISORY COMMISSION ON ELECTRONIC COMMERCE
10 FINAL MEETING
17 BY: Teleconference
18 Thursday, March 30, 2000
1 P R O C E E D I N G S
2 GOVERNOR GILMORE: Call the roll.
3 Okay, first of all, Dean Andal?
4 MR. ANDAL: Present.
5 GOVERNOR GILMORE: Mike Armstrong?
6 MR. ARMSTRONG: Present.
7 MS. ROSENKER: Can I be heard now?
8 GOVERNOR GILMORE: Paul Harris?
9 MR. HARRIS: Present.
10 GOVERNOR GILMORE: This is Governor
11 Gilmore. Let me read it again. Dean Andal?
12 MR. ANDAL: Present.
13 GOVERNOR GILMORE: Mike Armstrong?
14 MR. ARMSTRONG: Present.
15 GOVERNOR GILMORE: Myself, Governor
16 Gilmore. Mike Mundaca of Treasury?
17 MR. MUNDACA: Present.
18 GOVERNOR GILMORE: Paul Harris?
19 DELEGATE HARRIS: Present.
20 GOVERNOR GILMORE: Delna Jones?
21 MS. JONES: Present.
22 GOVERNOR GILMORE: Ron Kirk?
1 MAYOR KIRK: Present.
2 GOVERNOR GILMORE: Mike Leavitt?
3 GOVERNOR LEAVITT: Present.
4 GOVERNOR GILMORE: Gene Lebrun?
5 MR. LEBRUN: Present.
6 GOVERNOR GILMORE: Gary Locke?
7 GOVERNOR LOCKE: Present.
8 GOVERNOR GILMORE: Grover Norquist?
9 MR. NORQUIST: Present.
10 GOVERNOR GILMORE: Bob Novick?
11 MR. NOVICK: Present.
12 GOVERNOR GILMORE: Dick Parsons?
13 MR. PARSONS: Present.
14 GOVERNOR GILMORE: Andy Pincus?
15 MR. PINCUS: Present.
16 GOVERNOR GILMORE: Bob Pittman?
17 MR. PITTMAN: Present.
18 GOVERNOR GILMORE: Dave Pottruck?
19 MR. POTTRUCK: Present.
20 GOVERNOR GILMORE: John Sidgmore?
21 John Sidgmore?
22 Stan Sokul?
1 MR. SOKUL: Present.
2 GOVERNOR GILMORE: Ted Waitt?
3 MR. WAITT: Present.
4 MR. PARSONS: Governor, this is
5 Dick Parsons. Did you catch me?
6 GOVERNOR GILMORE: I did, Dick. We
7 now have everyone answering except Sidgmore.
8 Only John Sidgmore has not responded.
9 Okay, we will begin. We have a
10 quorum and we will begin.
11 Let me welcome everyone to this
12 final meeting of the Advisory Commission on
13 Electronic Commerce. This is Jim Gilmore,
14 the chairman of the Commission and Governor
15 of the Commonwealth of Virginia.
16 Before we proceed, let me remind
17 everybody that the meeting is being held
18 telephonically, obviously, and is open to the
19 public. The public and the media are welcome
20 to listen in on the final meeting, and I want
21 to welcome everybody who is listening in.
22 This meeting is being transcribed
1 and a record will be posted on the
2 Commission's web site. We have called the
3 role and we have all present and
4 participating except Mr. Sidgmore. Has
5 Mr. Sidgmore arrived on this call?
6 Okay. Welcome to everyone. First
7 of all, a couple of preliminary matters. Let
8 me please ask you all, which is apparent from
9 what we have done so far, let me ask you to
10 please announce your name before you speak.
11 The public and the media and the transcriber
12 understand, and we each understand each
13 other. If you will do that, I'll try to
14 remember and I hope everybody does.
15 Secondly, the conference call will
16 be the last meeting of the Advisory
17 Commission on Electronic Commerce. This
18 meeting is being held pursuant to a
19 procedural amendment that was approved in our
20 last meeting in Dallas, and I want to read
21 from that amendment.
22 The sole and limited purpose of
1 this vote is to obtain the Commission's
2 approval of the form and text of the final
3 language of the report to Congress, and any
4 other matter called for by a vote of a
5 majority of the Commissioners serving.
6 Now, furthermore, the operating
7 rule provides that a Commissioner may cast
8 his vote in one of three forms: Yea, nay or
9 abstain. The chairman shall announce the
10 vote of each Commissioner during the
11 conference call, and no other business shall
12 be conducted by the Commission during the
13 conference call, although Heather, I will
14 call on you to call the role at any time that
15 we require that.
16 With that in mind, let me just turn
17 to the sole purpose of the call, which is to
18 vote on the adoption of the report to
20 Now, by way of background, the
21 report drafting subcommittee consists of nine
22 members, and they are Governor Gary Locke of
1 Washington; Andy Pincus of the Department of
2 Commerce; Delna Jones, the County
3 Commissioner of Washington County, Oregon;
4 Bob Pittman of AOL, America OnLine; Dave
5 Pottruck of Charles Schwab; Stan Sokul of
6 Davidson and Company; Dean Andal, the
7 Chairman of the California Board of
8 Equalization; Dick Parsons of Time Warner;
9 and myself, Governor Gilmore.
10 Now, the burden to prepare this
11 report from the original drafting, about 12
12 rounds, there's been about 12 rounds of
13 redrafts and edits and revisions, and it fell
14 primarily on the staffs of each of these
15 Commissioners. I want to thank them for all
16 of them who have participated and their hard
17 work. A lot of people did this, but in
18 particular some people put in an enormous
19 amount of hours and I want to recognize those
20 who have helped us.
21 Valerie Rice of the Commission
22 staff; Tremaine Smith of Governor Locke's
1 staff; Will Rice of Governor Locke's staff;
2 Mary Street of the U.S. Department of
3 Commerce: Ellen Fishbein of America OnLine;
4 and John Sparring of Dean Andal's staff.
5 Ladies and gentlemen, I want to
6 thank you all very much. You are primarily
7 responsible for producing a fair and
8 professional draft report that we have all
9 before us, and I want to take this
10 opportunity to thank all of you all for a lot
11 of late nights that I know that you were
12 putting in.
13 Draft 10 of this document was
14 distributed to each Commissioner prior to
15 Dallas, so each of you has had an opportunity
16 to read that. Draft 12 incorporates the
17 recommendations and majority policy proposals
18 voted on in Dallas. Heather distributed this
19 update draft to each of you this week. The
20 text is the same as Draft 10, but the
21 recommendations and majority policy proposals
22 have been incorporated into the document.
1 Now, I understand that there has
2 been some little further discussion in terms
3 of text with the staffs this morning and that
4 Bob Pittman is aware of all that, so I'm
5 going to now recognize Bob Pittman, the
6 chairman of the drafting committee, to go
7 through and explain the report.
8 Bob, the floor is yours.
9 MR. PITTMAN: Thank you. Thank
10 you, Governor. I think that the report
11 provides context for the issues that we
12 addressed throughout last year, and it
13 explains the relevance or the importance of
14 grappling with these difficult issues.
15 The report, I think, incorporates
16 resolutions and recommendations approved by
17 two-thirds of the Commissioners. It also
18 incorporates the majority views proposals as
19 well as separate comments from each
20 Commissioner and in some cases comments from
21 the groups of Commissioners.
22 We had the call right -- or we had
1 a -- the meeting took place right before this
2 call, and I was not on that, George
3 Vradenburg was. George, I might give the
4 floor to you to tell us the last changes.
5 MR. VRADENBURG: Thank you, Bob.
6 We met for about an hour-and-a-half this
7 afternoon, from one to 2:30, staff of all of
8 the Commissioners of the report drafting
9 subcommittee. We went through page by page
10 and reviewed the text of the draft, Draft
11 No. 12.
12 The staff of the report drafting
13 subcommittee has authorized me to report that
14 there were a number of non-substantive
15 editorial changes but that there were two
16 substantive changes that were made in the
17 text that you have before you: Induction of
18 a new paragraph at the beginning of the
19 Executive Summary, Policy Proposals of the
20 majority of the Commissioners. Heather
21 Rosenker can read that in a second.
22 The other substantive change was in
1 respect of the report of the vote on the
2 subject of recommendations regarding the
3 formal and permanent extension of the WTO
4 current moratorium on tariffs and duties for
5 electronic transmissions, and the report on
6 that vote will reflect the New York vote on
7 Commissioner Norquist's proposal on that
8 subject, which was an 18-to-one vote.
9 Heather, could you read the opening
10 paragraph on the Executive Summary as the
11 staff of the report drafting subcommittee
12 approved it?
13 MS. ROSENKER: Can you hear me? It
14 reads as follows: The Commission on
15 Electronic Commerce met in four in-person
16 meetings: Williamsburg, Virginia; New York
17 City, New York; San Francisco, California;
18 and Dallas, Texas.
19 MR. VRADENBURG: You cut out,
20 Heather. Heather, if you are on speakerphone
21 you are probably cutting out.
22 (Discussion off the record)
1 MS. ROSENKER: Can I be heard now?
2 I'll start from the beginning. I apologize,
3 ladies and gentlemen.
4 The Advisory Commission on
5 Electronic Commerce met in four in-person
6 meetings: Williamsburg, Virginia; New York
7 City, New York; San Francisco, California;
8 and Dallas, Texas.
9 At its final meeting in Dallas, on
10 March 20 and 21, 2000, the Commission voted
11 on a number of proposals to Congress bearing
12 on the subject of the Commission's charter.
13 Certain of those proposals received a
14 two-thirds vote and, pursuant to the statute,
15 represent findings and recommendations of the
17 Other of those proposals, including
18 those pertaining to state sales and use
19 taxes, received a majority vote of the
20 Commissioners. Under the terms of the
21 statute, those proposals do not constitute a
22 formal finding or recommendation.
1 MR. VRADENBURG: In this paragraph
2 there were two word changes suggested in the
3 Executive Summary which conformed to the
4 spirit of that opening paragraph, one which
5 changes the word "recommendations" on page
6 one to "discussions;" and the second, near
7 the end of the page, in which the language
8 says "The Commission suggests." That
9 language will be changed to "The proposal
10 adopted by the majority of the Commission
12 Those changes were made to reflect
13 the fact that this Executive Summary -- so
14 that it is clear that this Executive Summary
15 is discussing the majority policy proposals
16 and not findings or recommendations of the
18 So there were, as I say, a number
19 of non-substantive editorial changes and
20 these two substantive changes, but with those
21 modifications, the report drafting
22 subcommittee staff is recommending this text
1 to you, obviously with a division on the
3 MR. ANDAL: Governor?
4 GOVERNOR GILMORE: Who is speaking?
5 MR. ANDAL: This is Dean Andal, and
6 I would like to move approval of Draft 12,
7 the final report of the report drafting
8 subcommittee, as was just presented by Bob
10 DELEGATE HARRIS: This is Paul
11 Harris. I would like to second it.
12 GOVERNOR GILMORE: It is moved that
13 the text and form of the Commission as
14 presently presented and presented today on
15 the telephone by Mr. Pittman and his staff,
16 it is moved and seconded that it be adopted.
18 MS. JONES: Mr. Chair, this is
19 Delna Jones. Question: Has any of this been
20 submitted to any of the members, either
21 electronically or by fax in any way?
22 MR. POTTRUCK: It's been given to all of
2 GOVERNOR GILMORE: Delna, you are
3 talking about the document that's been presented by
4 Draft 12? Yes, every Commission member has
5 been sent this. Didn't you receive your
7 MS. JONES: No, no, the changes is
8 what I am referring to.
9 GOVERNOR GILMORE: No, they have
10 been now submitted on the telephone call. We
11 can repeat it, of course, if necessary, but
12 they are quite minimal but have not been
13 previously sent out in writing up to this
15 MR. ANDAL: I think they were
16 e-mailed to us all.
17 MR. PARSONS: The paragraph that
18 Heather just read was e-mailed to me
19 at 12:19. This is Dick.
20 MR. POTTRUCK: This is Dave. I got
21 it also.
22 MS. JONES: Well, I am not where I
1 could be reached and some of the rest of them
3 Is there a reason this could not be
4 delayed for us to be able to read it?
5 GOVERNOR GILMORE: Delna, actually
6 I was not informed that in fact the document
7 had been in fact e-mailed out to every member
8 of the Commission.
9 MR. ANDAL: Governor, this is Dean
10 Andal. It is my understanding, Delna, that
11 your staff person was the one who proposed a
12 great deal of this language on the drafting
13 subcommittee call, a woman by the name of
15 MS. JONES: I know what Elizabeth
16 did. My reason for asking is that I'm not
17 there, I'm on vacation and not available, so
18 I was asking if it had been sent.
19 GOVERNOR GILMORE: It in fact has
20 pursuant to the drafting of your staff
22 Are there any other comments on
2 MR. LEBRUN: Governor, this is Gene
4 GOVERNOR GILMORE: Yes, Gene.
5 MR. LEBRUN: I've got the No. 12
6 draft, and I also received the email with
7 that new paragraph; but if I understood
8 Commissioner Pittman, there were other
9 non-substantive changes that they spent an
10 hour-and-a-half on today going through, and I
11 guess I have a problem having to vote on a
12 document which, regardless of the substance
13 of the change, I have not seen the final
15 I would concur with Commissioner
16 Jones that I think a delay, even for a couple
17 days, would be in order so that the final
18 draft, the hard copy text, can be gotten to
19 all the Commissioners before we have to vote
20 on it.
21 GOVERNOR GILMORE: Gene, another
22 meeting like this cannot be called without a
1 lengthy notice provision under our rules. So
2 the question that the Commission, of course,
3 has to determine is, by going through these
4 with Mr. Pittman now and working, of course,
5 with the staff people who are presenting the
6 language, is to get this in a position where
7 the Commission people are able to vote
8 pursuant to, as to the way we have noticed
9 the previously.
10 Mr. Pittman, you and George
11 Vradenburg, could you please go back through
12 any textual changes you may have offered? I
13 think, George, you did comment on it.
14 MR. VRADENBURG: I did. There
15 were, as I said, the opening paragraph which
16 Heather read, two textual changes on page
17 one, changing the word "recommendations" to
18 "discussions," and a textual change on
19 line 37 of page one, to make sure that the
20 reference was to majority of the Commission.
21 I can go through the half dozen or
22 so other non-substantive editorial changes.
1 If I miss any, Heather, you will pick up.
2 There's one on page 11 that someone
3 suggested, that the concerns about the impact
4 of electronic commerce on state and local
5 government revenues ought to be reflective of
6 a more general concern. There was some
7 adjustment in the discussion of the current
8 status of the law on Constitutional redress
10 There was the deletion of a couple
11 of paragraphs in the Internet access
12 discussion which referred to the majority
13 Commissioners' views, the belief being that
14 those ought to be reflected in separate
15 statements of the majority.
16 There was a garbled sentence on
17 page 22, and I think that was it.
18 There was one suggested change in
19 the description of the recommendations or
20 finding in the privacy section where at the
21 moment the text says that the majority vote
22 was on -- excuse me -- the two-thirds vote
1 was on crafting laws pertaining to on-line
2 privacy. That text was changed to a
3 suggestion that any laws that did pertain to
4 on-line privacy be written in a regard that
5 would avoid policy missteps.
6 They were in my view, Gene,
7 non-substantive. Your staff person was on
8 the call, did participate actively and did
9 authorize me to characterize the changes that
10 occurred other than the first paragraph and
11 the reflection of the electronic customs vote
12 as non-substantive editorial changes.
13 MS. ROSENKER: George, this is
14 Heather. If I may add, there was one
15 additional deletion, for everyone's
16 reference, on page 18. It starts at the end
17 of line one and continues through lines two
18 and three, and it's just because we had no
19 statistic for the end of that sentence.
20 MR. LEBRUN: Governor, this is Gene
21 Lebrun again. May I be recognized?
22 GOVERNOR GILMORE: Gene.
1 MR. LEBRUN: I appreciate
2 Commissioner Pittman running through the
3 summary of these changes, but we still don't
4 have the actual text. You mentioned that
5 there were a couple of paragraphs deleted.
6 I still object to having to vote on
7 a document that we have not seen the actual
8 final text of it. Therefore, Mr. Chairman, I
9 would move that the vote be deferred to a
10 date in the future and that we reconvene this
11 meeting at a later date after we have all had
12 a chance to review the final text.
13 MS. JONES: Second.
14 MR. ANDAL: Isn't there a motion on
15 the table already?
16 MR. LEBRUN: Substitute motion.
17 GOVERNOR GILMORE: This is a motion
18 to amend the --
19 MS. JONES: I would second that. This is Delna.
20 MR. POTTRUCK: I call the question.
21 This is Dave.
22 GOVERNOR GILMORE: Dave Pottruck?
1 All right. It is moved that we revisit the
2 fact that we are going over the editorial
3 matters, and it was noticed on editorial
4 matters today there's been a motion that we
5 do not vote on the report today but renotice
6 and move this to a later time.
7 A vote yes is for postponement and
8 delay of the adoption of this report. A vote
9 no is to proceed. The motion is to delay. A
10 vote yes is to delay; a vote no is to proceed
12 Heather, would you please call the
14 MS. ROSENKER: Mr. Andal?
15 MR. ANDAL: No.
16 MS. ROSENKER: Mr. Armstrong?
17 MR. ARMSTRONG: No.
18 MS. ROSENKER: Mr. Guttentag?
19 MR. MUNDACA: This is Mike Mundaca
20 for Joe Guttentag voting yes.
21 MS. ROSENKER: Mr. Harris?
22 DELEGATE HARRIS: No.
1 MS. ROSENKER: Mayor Kirk?
2 MAYOR KIRK: Yes.
3 MS. ROSENKER: Governor Leavitt?
4 GOVERNOR LEAVITT: Yes.
5 MS. ROSENKER: Ms. Jones?
6 MS. JONES: Yes.
7 MS. ROSENKER: Mr. Lebrun?
8 MR. LEBRUN: Yes.
9 MS. ROSENKER: Governor Locke?
10 Mr. Norquist?
11 MR. NORQUIST: No.
12 MS. ROSENKER: Mr. Novick?
13 MR. NOVICK: Yes.
14 MS. ROSENKER: Mr. Parsons?
15 MR. PARSONS: No.
16 MS. ROSENKER: Mr. Pincus?
17 MR. PINCUS: Yes.
18 MS. ROSENKER: Mr. Pittman?
19 MR. PITTMAN: No.
20 MS. ROSENKER: Mr. Pottruck?
21 MR. POTTRUCK: No.
22 MS. ROSENKER: Mr. Sidgmore?
1 Mr. Sokul?
2 MR. SOKUL: No.
3 MS. ROSENKER: Mr. Waitt?
4 MR. WAITT: No.
5 GOVERNOR GILMORE: Heather, the
6 chairman votes no.
7 MR. ANDAL: Call the question.
8 MR. ANDAL: This is Dean Andal.
9 I'm calling the question on the original
11 GOVERNOR GILMORE: Yes, Dean, I
12 recognize you, but Heather, please announce
13 the numbers, please.
14 MS. ROSENKER: We have seven yeas
15 and 10 nays, so the move to delay the vote
17 GOVERNOR GILMORE: Mr. Andal has
18 moved to call the question. Is there a
20 DELEGATE HARRIS: Second. This is
21 Paul Harris.
22 GOVERNOR GILMORE: Paul Harris,
1 second. All in favor of calling this
2 question, please --
3 GOVERNOR LEAVITT: Mr. Chairman?
4 GOVERNOR GILMORE: Yes. Who is
6 GOVERNOR LEAVITT: This is Governor
7 Leavitt. I would like to propose the
8 adoption or a procedural vote on whether or
9 not we could submit a minority report. There
10 are many of us that do not believe that the
11 report is reflective of our points of view
12 or, for that matter, complete in its report
13 on all of the various points of view that
14 were raised.
15 I'm wondering if that would be
16 acceptable, for that to be submitted.
17 MR. NORQUIST: Point of order. We
18 already have the thousand words that we all
19 submit. Everyone has their own minority
20 report and we have discussed this ad nauseam.
21 MR. PARSONS: No, no, point of
22 order. There is a motion to call the
1 question. It's been moved and seconded. The
2 only thing you can do now is vote on the
3 motion to call the question.
4 SPEAKER: That was Mr. Parsons.
5 GOVERNOR GILMORE: That was
6 Mr. Parsons. Mr. Parsons is correct and
7 Mr. Norquist is correct. In Dallas, Mayor
8 Kirk questioned the issue of such a report,
9 and I so ruled that in fact all Commissioners
10 would have a chance to submit a thousand
11 words and may combine them if they want to,
12 which I would anticipate would give everyone
13 either collectively or singly an opportunity
14 to submit minority views.
15 The question is called.
16 MR. LEBRUN: Point of order,
17 Mr. Chairman. This is Gene Lebrun. The
18 thousand word is a separate privilege for
19 each of the Commissioners, including those in
20 the majority.
21 Roberts Rules of Order, Section 50,
22 provides that minority reports may be
1 submitted with -- just the process of
2 submitting it may be approved by a majority
3 vote; not that they would support the
4 minority vote but the right to file.
5 I think we are entitled to ask the
6 Commission for the right, the privilege, to
7 file a minority report in addition to the
8 thousand words, because the thousand words is
9 permitted by those that support the majority
10 report as well.
11 MR. ANDAL: Governor, this is Dean
12 Andal. Could I suggest to Gene and to
13 Governor Leavitt that we have to adopt the
14 report first and then we can talk about how
15 we amend that. But we have a motion to call
16 the question on the adoption of the report.
17 Maybe we could dispose of that first and then
18 talk about these remaining issues later.
19 SPEAKER: That's a good idea.
20 MR. LEBRUN: this is Gene Lebrun. I just don't want to
21 be precluded from the right to bring it up
22 again after.
1 GOVERNOR GILMORE: Mr. Lebrun, in
2 the meanwhile we have a call --
3 MAYOR KIRK: A point of inquiry.
4 GOVERNOR GILMORE: Is this Mayor
6 MAYOR KIRK: Yes. Dean, just as a
7 courtesy, would you withdraw your request to
8 call the question so we can resolve it? I
9 think it's all going to all be resolved
10 pretty quickly anyway, but in fairness --
11 MR. ANDAL: I'm sorry, Ron, I
12 cannot do that. I think we need to move
13 along and get this done.
14 MAYOR KIRK: We haven't had any
15 debate whatsoever. I understand you all have
16 the votes, but the notion of calling the
17 question without any discussion at all to me
18 violates any concept or notion of fair play.
19 I don't think any of us is going to belabor
20 this thing.
21 SPEAKER: I think we have debated
22 this endlessly.
1 MR. NOVICK: Governor, this is Bob
2 Novick. I would like to be recognized.
3 GOVERNOR GILMORE: All right, Bob.
4 First let me make it clear that the issue
5 before the floor is the calling of the
6 question on the form and substance of the
7 report. Substantive debate is not going to
8 be in order in any case at this late date,
9 but if the issue is whether or not to in fact
10 call the question on the issue of the form
11 and substance of the report, that is what is
12 on the floor.
13 Mr. Novick, state your grounds for
14 wanting the floor, please.
15 MR. NOVICK: Just a point of
16 clarification, which is, I guess the question
17 is, is counsel to the Commission on the line?
18 GOVERNOR GILMORE: Yes, he is. He
19 is here with me.
20 MR. NOVICK: I would like to have
21 counsel state his views on this. At our
22 discussions in Dallas there was a question
1 about whether the statute which calls for the
2 Commission to provide the results of its work
3 doesn't essentially allow and require that
4 views, or call it a minority report, that do
5 reflect the results of the Commission, even
6 if not supported by a majority, are
7 appropriate and called for by the statute
8 under which we are operating.
9 I'm curious. I thought I
10 understood from counsel that that was
11 counsel's view. I would be curious if
12 counsel could opine on that, because I think
13 that bears directly on the question of
14 submitting a minority report.
15 GOVERNOR GILMORE: I don't believe
16 I understand the question, but I can clarify.
17 I'm the chair, and the chair, of course, has
18 stated in Dallas an opportunity for the
19 presentation of minority reports by each
20 Commissioner. Mayor Kirk asked whether or
21 not they in fact could be combined and I
22 ruled that they could. That is, I believe,
1 the issue, as I stated.
2 MR. NOVICK: I guess the question
3 I'm posing is a different one.
4 The statute requires this
5 Commission to report the results of its work
6 to Congress, and I believe what Governor
7 Leavitt has asked for is the opportunity to
8 put into the report one of the results of the
9 work of this Commission, and that is, the
10 views that he and others put forward as part
11 of the debate that this Commission engaged
12 in. It seems only appropriate that Congress,
13 having called for all the results of the
14 Commission, see that work.
15 GOVERNOR GILMORE: I remember that,
16 Mr. Novick, and in fact I addressed that in a
17 separate way in Dallas as well. Minority
18 positions which do not prevail before the
19 Commission will not be included in the
20 report. Majority positions will. Anything
21 that goes to two-thirds rises to the dignity
22 of a finding or recommendation. I believe
1 that was ruled on and the Chair was upheld.
2 MAYOR KIRK: Governor, this is
3 Mayor Kirk, and I would just like to echo the
4 comments of Governor -- I mean of Mr. Novick.
5 MR. NOVICK: I appreciate being
6 Governor. That's nice for a minute.
7 MAYOR KIRK: Well, we're all
8 governors. Governor, I do think it's a
9 separate issue.
10 The question is, the ruling you
11 gave us from the attorney that put us in this
12 position was that principally we only
13 required a majority vote to report the work
14 of the Commission but the two-thirds for the
16 The question -- and I would like to
17 hear from counsel, with all due respect and
18 not the chair, is whether or not, if we are
19 operating under a presumption that all we are
20 doing is reporting the work of the
21 Commission, the work of the Commission also
22 includes votes on every item we took,
1 irrespective of whether it rose to a majority
2 or to two-thirds.
3 I guess what we are asking the
4 Commission is whether he agrees with your
5 ruling that the only thing that rises to the
6 level of, quote-unquote, work of the
7 Commission is anything that got a majority
8 vote, and whether or not we are going to
9 accurately reflect to Congress all the votes
10 we took, whether they got two-thirds of the
11 majority or something less.
12 GOVERNOR GILMORE: Mayor Kirk,
13 while I believe that is settled by a ruling
14 of the chair, which I think is fairly
15 obvious, that a majority is going to be
16 required in order to be able to put something
17 in the report, the counsel is here. I'll ask
18 him to speak to you. Tom Griffith.
19 MR. GRIFFITH: Tom Griffith. Mayor
20 Kirk, as I stated in Dallas and as is
21 contained in the formal opinion that I
22 provided to the Commissioners, it is my view
1 that the statute leaves to the discretion of
2 the majority of the Commission what goes into
3 the report.
4 The sole exception to that is
5 findings or recommendations need to have the
6 two-thirds vote of the members of the
7 Commission; but other than that, the results
8 of the report, as Mr. Novick refers to, the
9 contents of the report are clearly within the
10 discretion of the majority of the Commission.
11 As I said in my oral statement in
12 Dallas, you can think of a number of
13 hypotheticals where majorities of the
14 Commission decided that it only wanted to
15 report on two of the issues that were before
16 it, the majority. That is consistent with
17 the statute.
18 If the majority of the Commission
19 decides to include every vote that was
20 considered by the Commission, then that's up
21 to the majority. The majority of the
22 Commission gets to decide the content of the
1 report, with the exception of findings and
2 recommendations, which requires two-thirds of
3 the Commissioners serving.
4 GOVERNOR GILMORE: Now, ladies and
5 gentlemen, in the interest of open discussion
6 I have proceeded beyond the parliamentary
7 matters, but now I think it is time to return
8 to those.
9 Mr. Andal and Mr. Parsons are
10 right. The issue before the floor is the
11 calling of the question.
12 All those in favor of calling this
13 question on the text and form of the report
14 will answer yes. All opposed will say nay.
15 Ms. Rosenker, please call the roll.
16 MS. ROSENKER: Mr. Andal?
17 MR. ANDAL: Yes.
18 MS. ROSENKER: Mr. Armstrong?
19 MR. ARMSTRONG: Yes.
20 MS. ROSENKER: Mr. Guttentag?
21 MR. MUNDACA: This is Mike Mundaca
22 for Joe Guttentag voting no.
1 MS. ROSENKER: Mr. Harris?
2 DELEGATE HARRIS: Yes.
3 MS. ROSENKER: Mayor Kirk?
4 MAYOR KIRK: No.
5 MS. ROSENKER: Governor Leavitt?
6 GOVERNOR LEAVITT: No.
7 MS. ROSENKER: Ms. Jones?
8 MS. JONES: No.
9 MS. ROSENKER: Mr. Lebrun?
10 MR. LEBRUN: No.
11 MS. ROSENKER: Governor Locke?
12 GOVERNOR LOCKE: No.
13 MS. ROSENKER: Mr. Norquist?
14 MR. NORQUIST: Yes.
15 MS. ROSENKER: Mr. Novick?
16 MR. NOVICK: No.
17 MS. ROSENKER: Mr. Parsons?
18 MR. PARSONS: Yes.
19 MS. ROSENKER: Mr. Pincus?
20 MR. PINCUS: No.
21 MS. ROSENKER: Mr. Pittman?
22 MR. PITTMAN: Yes.
1 MS. ROSENKER: Mr. Pottruck?
2 MR. POTTRUCK: Yes.
3 MS. ROSENKER: Mr. Sidgmore?
4 Mr. Sokul?
5 MR. SOKUL: Yes.
6 MS. ROSENKER: Mr. Waitt?
7 MR. WAITT: Yes.
8 MS. ROSENKER: Chairman Gilmore?
9 GOVERNOR GILMORE: Yes.
10 MS. ROSENKER: There are 10 yeas
11 and eight nays. The question passes.
12 GOVERNOR GILMORE: Without further
13 objection, all in favor of reporting this
14 form and substance in this report to the
15 Congress will answer yea; all opposed will
16 say nay. Ms. Rosenker, please call the roll.
17 MS. ROSENKER: Mr. Andal?
18 MR. ANDAL: Yea.
19 MS. ROSENKER: Mr. Armstrong?
20 MR. ARMSTRONG: Yea.
21 MS. ROSENKER: Mr. Guttentag?
22 MR. MUNDACA: Mike Mundaca voting
2 MS. ROSENKER: Mr. Harris?
3 MR. HARRIS: Yes.
4 MS. ROSENKER: Mayor Kirk?
5 MAYOR KIRK: No.
6 MS. ROSENKER: Governor Leavitt?
7 GOVERNOR LEAVITT: Nay.
8 MS. ROSENKER: Ms. Jones?
9 MS. JONES: Nay.
10 MS. ROSENKER: Mr. Lebrun?
11 MR. LEBRUN: Nay.
12 MS. ROSENKER: Governor Locke?
13 GOVERNOR LOCKE: No.
14 MS. ROSENKER: Mr. Norquist?
15 MR. NORQUIST: Yea.
16 MS. ROSENKER: Mr. Novick?
17 MR. NOVICK: No.
18 MS. ROSENKER: Mr. Parsons?
19 MR. PARSONS: Yes.
20 MS. ROSENKER: Mr. Pincus?
21 MR. PINCUS: No.
22 MS. ROSENKER: Mr. Pittman?
1 MR. PITTMAN: Yes.
2 MS. ROSENKER: Mr. Pottruck?
3 MR. POTTRUCK: Yea.
4 MS. ROSENKER: Mr. Sidgmore?
5 Mr. Sokul?
6 MR. SOKUL: Yea.
7 MS. ROSENKER: Mr. Waitt?
8 MR. WAITT: Yea.
9 MS. ROSENKER: Governor Gilmore?
10 GOVERNOR GILMORE: Yes.
11 MS. ROSENKER: By a note of 10 yeas
12 and eight nays the question passes to report
13 to Congress.
14 GOVERNOR GILMORE: There is one
15 additional matter to be taken up.
16 Commissioner Gene Lebrun has
17 requested that the Commission take up an
18 additional resolution unrelated, really, to
19 the adoption of the report. That resolution
20 has been distributed to all the
22 Before we take up the matter, let
1 me see if a majority of the Commission wishes
2 to take this matter up. This resolution is a
3 threshold matter. The issue of Mr. Lebrun I
4 am referring to is his resolution in which he
5 seeks the Commission to request the Congress
6 to provide funding to NCCUSL, National
7 Conference of Commissions on Uniform State
8 Laws, for their work which is discussed
9 within the report of the Commission. A copy
10 of this resolution has been sent out to each
11 of the Commission members.
12 The threshold question is, these
13 matters under our rule may be brought up by
14 the approval of the majority of the
15 Commission, so let's take up the issue of
16 whether or not the Commission wishes to take
17 up Lebrun's additional resolution.
18 Heather, please call the roll. If
19 you wish to take up Mr. Lebrun's resolution
20 or any other resolutions, please say yea. If
21 you wish not to, please say nay.
22 Heather, please call the roll.
1 MS. ROSENKER: Mr. Andal?
2 MR. ANDAL: No.
3 MS. ROSENKER: Mr. Armstrong?
4 MR. ARMSTRONG: No.
5 MS. ROSENKER: Mr. Guttentag?
6 MR. MUNDACA: Mike Mundaca voting
8 MS. ROSENKER: Mr. Harris?
9 MR. HARRIS: No.
10 MS. ROSENKER: Mayor Kirk?
11 MAYOR KIRK: Yes.
12 MS. ROSENKER: Governor Leavitt?
13 GOVERNOR LEAVITT: Yes.
14 MS. ROSENKER: Ms. Jones?
15 MS. JONES: Yes.
16 MS. ROSENKER: Mr. Lebrun?
17 MR. LEBRUN: Yes.
18 MS. ROSENKER: Governor Locke?
19 GOVERNOR LOCKE: Yes.
20 MS. ROSENKER: Mr. Norquist?
21 MR. NORQUIST: No.
22 MS. ROSENKER: Mr. Novick?
1 MR. NOVICK: Yes.
2 MS. ROSENKER: Mr. Parsons?
3 MR. PARSONS: No.
4 MS. ROSENKER: Mr. Pincus?
5 MR. PINCUS: Yes.
6 MS. ROSENKER: Mr. Pittman?
7 MR. PITTMAN: No.
8 MS. ROSENKER: Mr. Pottruck?
9 MR. POTTRUCK: No.
10 MS. ROSENKER: Mr. Sidgmore?
11 Mr. Sokul?
12 MR. SOKUL: No.
13 MS. ROSENKER: Mr. Waitt?
14 MR. WAITT: No.
15 MS. ROSENKER: Governor Gilmore?
16 GOVERNOR GILMORE: No.
17 MS. ROSENKER: The question to take
18 up Mr. Lebrun's amendment had eight yeas
19 and 10 nays, so the question fails.
20 GOVERNOR GILMORE: Gentlemen, the
21 formal business of this Commission has come
22 to a close. The report documenting the
1 Commission's study will be forwarded to the
2 Congress. It is a professional report. It's
3 a report that we can be proud of and it will
4 be judged on the merits of its ideas.
5 Good ideas are going to succeed.
6 You can put your faith in that. I am
7 convinced that a majority of the Commission
8 has put forth a comprehensive set of good
9 idea for the American people, so now we take
10 the ideas to Congress.
11 Senator Roth and Senator Moynihan
12 have already announced that the Senate
13 Finance Committee will hold hearings on the
14 report. Chairman Bliley has asked me to
15 present the results of the study to the House
16 Commerce Committee. Senator Lott has
17 extended his congratulations to this
18 committee for a job well done and is awaiting
19 the report. Speaker Hastert and Majority
20 Leader Armey already are moving towards
21 legislation action towards ideas contained in
22 this report, and Minority Leader Gephardt has
1 just announced two days ago that he supports
2 several of the ideas endorsed in this report
3 in a new and extensive position put out by
4 Minority Leader Gephardt.
5 So already this is resonating in
6 Congress. I intend to take these ideas to
7 the Congress and to the people of the United
8 States. We will let the American people
9 decide whether they like the report and how
10 they feel about the issue of sales taxes on
11 the Internet.
12 I believe that the tax cuts that
13 are proposed in this report are for the
14 people. The businesses representing this
15 Commission don't pay the sales taxes and
16 taxes on Internet access. The individual
17 citizens and individual taxpayers and
18 consumers pay these taxes.
19 So in the words of Lord John
20 Russell before the British House of Commons,
21 "It is impossible that the whisper of a
22 faction shall prevail against the voice of a
2 There has been very thorough
3 discussion about this, but the work of the
4 Commission I think is valuable, and Congress
5 will see this and have the opportunity to
6 view it.
7 So we will take the case to the
8 American people and let them decide how they
9 feel about it.
10 Ladies and gentlemen, I want to
11 thank you for your service. I want to say in
12 closing that it has been my pleasure to work
13 with each and every person on this
14 commission, and I look forward to working
15 with you in the future.
16 Without further objection, this
17 meeting and the Commission is adjourned.
18 Thank you very much.
19 (Whereupon, the PROCEEDINGS were
20 adjourned at 3:45 p.m.)
21 * * * * *
On this page: transcript of March 30, 2000