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Final Meeting: Transcript of March 30, 2000
(by teleconference)










      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

      19     Congress.

      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

      16     Commission.

      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

      11     suggests."

      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

      17     Commission.

      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

       2     substance.

       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

       9     Pittman.

      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.

      17     Discussion?

      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

       1     us.

       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

       6     copy?

       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

      14     point.

      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

       2     are.

       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

      14     Elizabeth.

      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

      21     person.

      22               Are there any other comments on

       1     this?

       2               MR. LEBRUN:  Governor, this is Gene

       3     Lebrun.

       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

      14     text.

      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

       9     mechanisms.

      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

      11     today.

      12               Heather, would you please call the

      13     roll.

      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

      10     motion.

      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

      16     fails.

      17               GOVERNOR GILMORE:  Mr. Andal has

      18     moved to call the question.  Is there a

      19     second?

      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

       5     speaking?

       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

       5     Kirk?

       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

      15     finding.

      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

       1     nay.

       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

      21     Commissioners.

      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

       7     yea.

       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

       1     nation."

       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

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