[Senate Report 108-408]
[From the U.S. Government Publishing Office]
108th Congress Report
SENATE
2d Session 108-408
_______________________________________________________________________
Calendar No. 797
HIGH RISK NONPROFIT SECURITY
ENHANCEMENT ACT OF 2004
__________
R E P O R T
of the
COMMITTEE ON GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 2275
together with
MINORITY VIEWS
AMENDING THE HOMELAND SECURITY ACT OF 2002 (6 U.S.C. 101 ET SEQ.) TO
PROVIDE FOR HOMELAND SECURITY ASSISTANCE FOR HIGH-RISK NONPROFIT
ORGANIZATIONS, AND FOR OTHER PURPOSES
November 10, 2004.--Ordered to be printed
Filed, under authority of the order of the Senate of October 11, 2004
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
Johanna L. Hardy, Senior Counsel
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Laurie Rubenstein, Minority Chief Counsel
Beth M. Grossman, Minority Counsel
Amy B. Newhouse, Chief Clerk
C O N T E N T S
Page
I. Purpose & Summary................................................1
II. Background.......................................................1
III. Legislative History..............................................7
IV. Section-by-Section Analysis......................................8
V. Estimated Cost of Legislation...................................11
VI. Evaluation of Regulatory Impact.................................14
VII. Changes in Existing Law.........................................14
VIII.Minority Views..................................................15
Calendar No. 797
108th Congress Report
SENATE
2d Session 108-408
======================================================================
HIGH RISK NONPROFIT SECURITY ENHANCEMENT ACT OF 2004
_______
November 10, 2004.--Ordered to be printed
Filed, under authority of the order of the Senate of October 11, 2004
_______
Ms. Collins, from the Committee on Governmental Affairs, submitted the
following
R E P O R T
[To accompany S. 2275]
The Committee on Governmental Affairs, having considered
the original bill (S. 2275) to amend the Homeland Security Act
of 2002 (6 U.S.C. 101 et seq.) to provide for homeland security
assistance for high-risk nonprofit organizations, and for other
purposes, reports favorably thereon, with amendments and
recommends that the bill do pass.
I. PURPOSE & SUMMARY
The purpose of S. 2275, the High Risk Nonprofit Security
Enhancement Act of 2004, is to amend the Homeland Security Act
of 2002 to provide for homeland security assistance for
nonprofit organizations at high risk of international terrorist
attacks, and for other purposes.
II. BACKGROUND & NEED FOR LEGISLATION
The Threat to Nonprofit Organizations
International terrorist organizations have increasingly
demonstrated their willingness to attack ``soft targets.'' As
the 2003 Patterns of Global Terrorism Report concludes, attacks
continue against ``the international community, humanitarian
organizations, and people dedicated to helping mankind.'' \1\
Last year, the Baghdad International Committee for the Red
Cross was bombed; the Catholic Relief Services headquarters in
Nassiryah was bombed; explosions occurred near Save the
Children USA's offices in Kabul; five apparently coordinated
bomb attacks occurred in Casablanca, Morocco at or near a
restaurant, hotel, Jewish cemetery, Jewish Community Center,
and the Belgian Consulate; in India, grenades exploded at a
crowded community kitchen, a bomb exploded near a Hindu temple,
militants opened fire on a Christian school, and a grenade was
thrown at a Christian missionary school; and vehicle bombs
exploded at the Beth Israel synagogue and at the Neve Shalom
synagogue in Turkey.\2\ ``Churches, synagogues, and mosques
were all targeted by terrorists in 2003.'' \3\
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\1\ Patterns of Global Terrorism 2003, April 2004, Revised June 22,
2004, United States Department of State, Introduction, p. iii.
\2\ Patterns of Global Terrorism 2003, April 2004, Revised June 22,
2004, United States Department of State, Introduction p. iii and
Appendix A--Chronology of Significant International Terrorist
Incidents, 2003 (Revised 6/22/04).
\3\ Patterns of Global Terrorism 2003, April 2004, Revised June 22,
2004, United States Department of State, Introduction, p. iii.
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In testifying before the Select Committee on Intelligence,
Robert S. Mueller, Director of the Federal Bureau of
Investigation, noted that:
We must not assume, however, that al-Qaeda will rely
only on tried and true methods of attack. As attractive
as a large-scale attack that produced mass casualties
would be for al-Qaeda and as important as such an
attack is to its credibility among its supporters and
sympathizers, target vulnerability and the likelihood
of success are increasingly important to the weakened
organization. Indeed, the types of recent, smaller-
scale operations al-Qaeda has directed and aided
against a wide array of Western targets--such as in
Mombassa, Bali and Kuwait and against the French oil
tanker off Yemen--could readily be reproduced in the
U.S.\4\
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\4\ Testimony of Robert S. Mueller, III, Director, FBI, Before the
Select Committee on Intelligence of the United States Senate, February
11, 2003.
Mr. Mueller went on to note that multiple, smaller-scale
attacks against soft targets would be easier to execute and
would require minimal communication with the central leadership
of the terrorist organization and, therefore, would lower our
ability of detecting such an attack.\5\
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\5\ Ibid.
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The Director of the Central Intelligence Agency echoed this
threat by stating that ``[a]l-Qa'ida is still dedicated to
striking the U.S. homeland, and much of the information we've
received in the past year revolves around that goal.'' \6\ The
Director further noted that ``[u]ntil al-Qa'ida finds an
opportunity for the big attack, it will try to maintain its
operational tempo by striking `softer' targets . . . `softer'
[targets] are simply those targets al-Qa'ida planners may view
as less well protected.'' \7\
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\6\ DCI's World Threat Briefing (As Prepared for Delivery), The
Worldwide Threat in 2003: Evolving Dangers in a Complex World, February
11, 2003.
\7\ Ibid.
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Nonprofit organizations are valuable assets to the country.
They provide services important to communities in a wide array
of areas related to homelessness, the arts, education, culture,
religion, human services, and health. Unfortunately, some of
these organizations may also provide ideal targets for those
who want to harm the U.S., either because they are where many
people gather on a regular basis or because of the nature of
the mission of the particular nonprofit. Since some nonprofit
organizations may be at high risk of an international terrorist
attack and because these organizations carry out activities
that are intended to serve the public good, providing some
security assistance to protect them is justified.
The High Risk Nonprofit Security Enhancement Act of 2004 as Introduced
S. 2275, as introduced, would authorize the Secretary of
Homeland Security to provide inFY 2005 up to $100 million in
security assistance to 501(c)(3) organizations demonstrating a high
risk of international terrorist attack. The Secretary would make this
determination based on specific threats of international terrorist
organizations; prior attacks against similarly situated organizations;
the vulnerability of the specific site; the symbolic value of the site
as a highly recognized American institution; or the role of the
institution in responding to terrorist attacks.
The funds could be used for security enhancements, such as
concrete barriers, and hardening of windows and doors, as well
as technical assistance to assess needs, develop plans, and
train personnel. After funds have been expended for the highest
risk institutions, Federal loan guarantees would be available
to make loans to qualifying nonprofit organizations. Funds
would be administered by a new office in the Department of
Homeland Security, the Office of Community Relations and Civic
Affairs, dedicated to working with high-risk non-profit
organizations.
The bill also authorizes $50 million in grant funds for
local police departments to provide additional security in
areas where there is a high concentration of high-risk non-
profit organizations.
Amendments Adopted in Committee
An amendment offered by Senators Collins and Lieberman and
adopted by the Committee altered several of the bill's
provisions. First, it struck the provisions in the bill, as
introduced, which would have limited qualifying nonprofit
organizations to those that host gatherings of at least 100
persons at least once per month or those that provide services
to at least 500 people each year at the site. The purpose of
this change was to ensure that smaller nonprofit organizations
are eligible to apply for assistance.
Second, the amendment added ``the likelihood of physical
harm to persons at the site or in the area surrounding the
site'' as one of the criteria for determining eligibility for
assistance.
Third, S. 2275 as introduced would have required States to
establish a State Homeland Security Authority to assist in the
evaluation of applications from high risk non-profit
organizations. Not all States have established separate
Homeland Security agencies, and requiring them to create one
solely in response to this program could potentially add an
undue burden on certain States. The amendment would allow
States simply to designate an existing agency to be the entity
involved with this program.
The Committee also adopted an amendment offered by Senator
Durbin removing specific requirements in S. 2275 regarding the
favorable repayment terms for the loan guarantee program. The
bill, as introduced, would have required that lending
institutions under the loan guarantee program provide non-
profit organizations with favorable repayment terms. Nonprofit
organizations would already benefit from the loan guarantees
themselves and the Committee believes that the additional
benefit of requiring favorable terms is not necessary.
Constitutional Analysis
Because religious institutions would potentially be among
those nonprofit organizations eligible for financial assistance
under the legislation, some Committee members raised concerns
about the bill's Establishment Clause ramifications. The First
Amendment of the Constitution states, in part, ``Congress shall
make no law respecting an establishment of religion, or
prohibiting the free exercise thereof . . .''. During Committee
consideration of S. 2275, some raised questions regarding
whether the participation of religious nonprofit organizations
in the program would pass constitutional scrutiny.\8\ The
majority of the Committee believes that it would. Indeed, an
opinion by the American Law Division of the Congressional
Research Service concurs in that conclusion.\9\
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\8\ The church-state constitutional issues arise primarily in the
context of active religious institutions with religious functions.
Synagogues and religious day schools, for example, are plainly
religious institutions. Providing financial assistance to such
institutions at least implicates the Establishment Clause, since the
primary purpose of such institutions is religious teaching, worship,
and observance. On the other hand, some institutions, although
affiliated with religious groups, have little or no religious content.
These may include hospitals, nursing homes, vocational services, and
the like, although issues could arise if such institutions contain a
chapel or other area of worship within its facilities. In between are
institutions which are largely secular but which have a substantial
religious component. Establishment Clause issues are most likely to be
triggered with regard to generally applicable Federal programs when the
Federal benefit goes to an active place of worship or to improve
facilities that may be used, in part, to actively promote religion.
\9\ Memorandum from the American Law Division, Congressional
Research Service to the Senate Governmental Affairs Committee, July 19,
2004, Questions Regarding S. 2275, the High Risk Nonprofit Security
Enhancement Act.
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Providing assistance, carefully limited to security
technology and assistance, would serve a purely secular purpose
of protecting potential and attractive terrorist targets. This
is an important and valid secular purpose because the
government has an interest in protecting the lives and property
of its citizens, and because an attack on a religious
institution is an attack on a significant part of American
civil society. In addition to these wholly legitimate, indeed,
urgent needs, providing security aid to particularly vulnerable
institutions forestalls additional terrorist acts, acts which
demoralize American citizens, spread fear and panic, and
encourage further terrorist attacks. On similar reasoning,
courts have upheld against Establishment Clause challenges
statutes enhancing the penalties for vandalizing houses of
worship.\10\
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\10\ See e.g., Todd v. State, 643 So 2d 625 (Fla App 1994); State
v. Vogenthaler, 89 N.M. 150, 548 P. 2d 112 (Ct App 1976).
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The Lemon Test
In Lemon v. Kurtzman,\11\ the Supreme Court articulated a
three prong test to determine whether a statute is
constitutional under the Establishment Clause. Specifically,
the Court adopted the following test: (1) the statute must have
a secular legislative purpose, (2) its principal or primary
effect must be one that neither advances nor inhibits religion,
and (3) the statute must not foster an excessive government
entanglement with religion.\12\
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\11\ 403 U.S. 602 (1971).
\12\ Ibid at 612-613.
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This bill meets each prong of the Lemon test. It has a
clearly secular legislative purpose--to protect individuals who
may be at or near nonprofit organizations determined to be at
high risk of terrorist attack, by providing assistance for
security enhancements to those nonprofit organizations. The
bill does not have the primary effect of advancing religion, as
recipients would be chosen from among all 501(c)(3) applicants
based on neutral criteria of risk, and the assistance would be
used for security enhancements, such as barriers and reinforced
doors, that are not part of any religious activity. Finally,
the bill does not foster an excessive government entanglement
with religion, as the legislation provides no direct funding to
religious institutions and would provide little or no
opportunity for government involvement with the religious
activities of any religious nonprofit organization selected for
assistance.\13\
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\13\ The American Law Division of the Congressional Research
Service concurs in this assessment. See Memorandum from the American
Law Division, Congressional Research Service to the Senate Governmental
Affairs Committee, July 19, 2004, Questions Regarding S. 2275, the High
Risk Nonprofit Security Enhancement Act, at 2-3.
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Physical Improvements
Nonetheless, some Committee members concerned about the
Establishment Clause implications of S. 2275 point to the
Supreme Court's decisions in Tilton v. Richardson,\14\ and
Committee for Public Education & Religious Liberty v. Nyquist,
Commissioner of Education of New York,\15\ in which the Court
addressed the issue specifically of government aid related to
physical improvements to property. Tilton was a challenge to a
federal program that gave grants to colleges to build secular
use facilities such as libraries, language laboratories, or
classrooms. By statute, no funds could be given to buildings
used even partially for religious purposes. However, the
limitation on religious uses expired after 20 years and
required the Federal government to actively enforce, during
those years, the prohibition on the use of any of those
facilities for religious purposes.
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\14\ 403 U.S. 672 (1971).
\15\ 413 U.S. 756 (1973).
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In a plurality opinion, the Court upheld the program. The
Court, however, unanimously struck down the provision limiting
the ban on religious uses to 20 years, although the Justices
differed on the reasoning. Some Justices believed that the 20
years was not enough time, that even after 20 years there still
would be value in the property and, therefore, there would be
the potential of advancing religion, if after the 20 years the
property was used for religious purposes. However, other
Justices questioned whether the 20-years of continued
enforcement violated the third prong of the Lemon test
regarding excessive government entanglement with religion.
In Nyquist, New York established a grant program for
nonpublic schools that would provide for the ``maintenance and
repair'' of school facilities. The Court struck down the
program as unconstitutional based on the second prong of the
Lemon test related to advancing religion. The Court noted in
the Nyquist case that the ``maintenance and repair'' program
made no attempts to restrict the use of funds to be exclusively
used for secular purposes. The Court, for example, indicated
that there was nothing in statute that would prevent a Catholic
school from paying the salary of an employee who maintains the
school chapel. The Court then said, ``[a]bsent appropriate
restrictions on expenditures for these and similar purposes, it
simply cannot be denied that this section has a primary effect
that advances religion in that it subsidizes directly the
religious activities of sectarian elementary and secondary
schools.'' \16\
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\16\ Ibid. at 774.
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Tilton appears to stand for the proposition that the
government may not contribute financially to the construction
of buildings used for religious worship or instruction. That
reading of Tilton would be an obstacle to granting aid to the
physical structure of religious institutions such as houses of
worship. However, the program created by S. 2275 can be
distinguished. Unlike the Tilton program, in which funding
could be used to construct an entire building that could
eventually be used as a church, the program established in S.
2275 (1) provides no direct funding, but rather offers
contracts and loan guarantees to provide security enhancements;
and (2) provides financial assistance for only a very narrow
set of capital improvements--those aimed exclusively at
enhancing the security of the citizens who use the facilities.
Moreover, unlike both Tilton and Nyquist, where the Court
appeared troubled by the fact that government assistance, at
least in part or eventually, could be used for sectarian
purposes, none of the enhancements supported by S. 2275--such
as fences or other barriers or reinforced doors--could be
diverted for use for religious purposes.
The program established by S. 2275 is better analogized to
Everson v. Board of Education \17\ and Board of Education v.
Allen,\18\ in which the Court upheld the reimbursement to
parents for bus transportation and the provision of secular
textbooks, respectively, regardless of whether a student
attended public or parochial school. The Court did not seem to
raise issues about indirect benefits to religious institutions
as long the funds provided were used for secular purposes. In
fact, the Nyquist Court distinguished these cases thusly:
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\17\ 330 U.S. 1 (1947).
\18\ Board of Education v. Allen, 392 U.S. 236 (1968) (The Court
upheld a New York law providing secular textbooks for children
attending public and nonpublic schools).
In Everson, the Court found the bus fare program
analogous to the provision of services such as police
and fire protection, sewage disposal, highways, and
sidewalks for parochial schools . . . Such services,
provided in common to all citizens, are ``so separate
and so indisputably marked off from the religious
function,'' that they may fairly be viewed as
reflections of a neutral posture toward religious
institutions.\19\
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\19\ Ibid. at 781-782.
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The Court went on to state:
Allen is founded upon a similar principle. The Court
there repeatedly emphasized that upon the record in
that case there was no indication that textbooks would
be provided for anything other than purely secular
courses.\20\
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\20\ Nyquist at 782.
The security-related capital improvements funded by this
bill are more like the bus service and police protection for
sectarian institutions that the Court has approved than the
whole-scale construction of a building, which it has not.
Conclusion
The legal precedent related to assistance that has the
potential of benefitting religious organizations suggests that
religious organizations need not be excluded from a program
that is available to religious and non-religious entities alike
and serves a purely secular purpose. Indeed, there have been
other legislative and policy precedents for such programs. In
1996, for example, Congress passed the Church Arson Prevention
Act which was specifically in response to vandalism and other
attacks on African-American churches. That act, through a loan
guarantee program, provided Federal assistance to make actual
repairs to houses of worship.
S. 2275 has been carefully crafted to satisfy the
constitutional requirement of separation of church and state.
The assistance program is generally-applicable to all high-risk
non-profit organizations who meet certain criteria. The
security enhancements, technical assistance, and loan
guarantees are for purely secular purposes (securing high-risk
targets) and, like in Allen and Everson, for purely secular
functions (fences, bollards). No funds are going directly to
any religious institution to be used without restriction, such
as in the Nyquist case. Finally, Federal funds will not go
directly to any sectarian institution; rather, the Department
of Homeland Security will be hiring the contractors to build
the enhancements. For these reasons, the Committee believes
that S. 2275 is consistent with the requirements of the First
Amendment.
III. LEGISLATIVE HISTORY
S. 2275 was introduced on April 1, 2004 by Senators
Mikulski, Specter, Murray, Clinton, Landrieu, Schumer,
Lieberman, Daschle, and Dayton. Since introduction additional
co-sponsors of S. 2275 were added including Senators Collins,
Baucus, Dodd, Reid, Smith, and Boxer. S. 2275 was referred to
the Committee on Governmental Affairs. A companion bill, H.R.
4108 was introduced on that same day by Congressmen Nethercutt
and Nadler and has 65 co-sponsors. On July 21, 2004, the
Committee considered S. 2275.
Senator Durbin offered two amendments to S. 2275. The first
amendment would have only allowed contracts for security
enhancements to the extent that the real property to be
improved would not be used for sectarian instruction or
religious worship, unless and until the security enhancements
have no value. The first amendment was not adopted by rollcall
vote. The Senators voting in the negative were Senators
Collins, Stevens, Voinovich, Coleman, Specter, Bennett, Sununu,
Shelby, Lieberman, and Carper. The Senators voting in the
affirmative were Senators Fitzgerald, Levin, Akaka, Durbin,
Lautenberg, and Pryor.
The second amendment offered by Senator Durbin removes the
specific provisions in S. 2275, as introduced, that would have
required favorable terms for the loan guarantees. This
amendment was adopted by the Committee by voice vote.
Senators Collins and Lieberman offered an amendment, which
the Committee agreed to by voice vote. The amendment offered by
Senators Collins and Lieberman strikes the provisions in the
bill, as introduced, which would have limited qualifying
nonprofit organizations to those that host gatherings of at
least 100 persons at least once per month or those that provide
services to at least 500 people each year at the site; adds
``harm to persons'' as one criteria for determining eligibility
for assistance; and allows States to designate an existing
agency to help administer the program.
The Committee ordered the bill reported, as amended, by
voice vote.
IV. SECTION-BY-SECTION ANALYSIS
Section 1 titles the bill as the High Risk Nonprofit
Security Enhancement Act of 2004.
Section 2 contains a congressional finding that there is a
public interest in protecting high-risk nonprofit organizations
from inter-national terrorist attacks.
Section 3 states that purposes of the Act are to (1)
establish within the Department of Homeland Security a program
to protect U.S. citizens at or near high-risk nonprofit
organizations from international terrorist attacks through loan
guarantees and Federal contracts for security; (2) establish a
program with the Department to provide grants to local
governments to assist with incremental costs associated with
law enforcement in areas in which there are a high
concentration of high-risk nonprofit organizations; and (3)
establish an Office of Community Relations and Civic Affairs
within the Department of Homeland Security to focus on the
security needs of high-risk nonprofit organizations.
Section 4 adds at the end of the Homeland Security Act of
2002 the following provisions:
Section 1801 contains definitions of ``contract,''
``nonprofit organization,'' ``security enhancements,''
and ``technical assistance.''
Section 1802(a) authorizes the Secretary of Homeland
Security to enter into contracts with certified
contractors for security enhancements and technical
assistance for nonprofit organizations and issue
Federal loan guarantees to financial institutions in
connection with loans made to nonprofit organizations
for security enhancements and technical assistance.
Section 1802(b) authorizes the Secretary of Homeland
Security to guarantee loans under the Act only to the
extent provided for by appropriations, under such
conditions as the Secretary considers appropriate and
consistent with section 503 of the Federal Credit
Reform Act of 1990, and only to the extent that the
terms and conditions include a requirement that the
decision to provide a loan guarantee to a financial
institution does not in any way depend on the purpose,
function, or identity of the beneficiary organization.
Section 1803(a) requires the Secretary to designate
nonprofit organizations as high-risk nonprofit
organizations eligible under the program based on the
vulnerability of the specific site of the nonprofit
organizations to international terrorist attacks.
Section 1803(b) establishes criteria for assessing
vulnerability to international terrorist attacks
including threat of international terrorist
organizations against any group who operate or are the
principle beneficiaries or users of the nonprofit
organization; prior attacks by international terrorist
organizations against the nonprofit organization or
entities associated with or similarly situated as the
nonprofit organization; the symbolic value of the site
as a highly recognized United States cultural or
historical institution; the role of the nonprofit
organization in responding to international terrorist
attacks, recommendations of the applicable designated
State agency established under section 1806 or Federal,
State, and local law enforcement authorities; and the
likelihood of physical harm to persons at the site or
in the area surrounding the site.
Section 1803(c) states that two or more nonprofit
organizations that create a nonprofit to provide
technical assistance may be eligible to receive
security enhancements and technical assistance under
this Act based upon the collective risk.
Section 1804 states that funds borrowed under the
loan guarantees may be used for technical assistance
and security enhancements.
Section 1805(a) requires nonprofit organizations
applying for assistance to submit separate applications
for each specific site needing security enhancements or
technical assistance.
Section 1805(b) requires each application to include
a detailed request for security enhancements and
technical assistance; a description of the intended
uses of funds to be borrowed under the loan guarantees;
and other information as the Secretary shall require.
Section 1805(c) states that two or more nonprofit
organizations located on contiguous sites may submit a
joint application.
Section 1806(a) requires each state to designate a
State agency to carry out this Act.
Section 1806(b) requires applications to be submitted
to the designated State agency, requires the State
agency to evaluate all applications and transmit all
qualifying applications to the Secretary ranked by
severity of risk, and allows an applicant to appeal the
finding by the State agency to the Secretary.
Section 1807(a) states that the Secretary shall
select applications for execution giving preference to
nonprofit organizations determined to be at the
greatest risk based upon criteria in section 1803.
Section 1807(b) states that the Secretary shall
execute security enhancements and technical assistance
contracts for the highest priority applicants until
available funds are expended and to make loan
guarantees available for additional applicants up to
the authorized amount.
Section 1807(c) states that special preference shall
be given to joint applications.
Section 1807(d) requires the Secretary to issue
assistance in such amounts as to maximize the number of
high-risk applicants receiving assistance.
Section 1807(e) requires notification to the
applicant upon selection of that nonprofit organization
for assistance.
Section 1807(f) establishes the process for selecting
certified contractors to carry out security
enhancements and technical assistance.
Section 1807(g) establishes a process to ensure the
availability of contractors by allowing the nonprofit
organization to submit a contractor to the Secretary
for review.
Section 1807(h) requires the nonprofit organization
to notify the Secretary upon selecting a certified
contractor and requires the Secretary to deliver a
contract to such contractor within 10 days of
notification.
Section 1807(i) permits nonprofit organizations to
enter into contracts for additional work with the
certified contractor, using their own funds, and makes
it clear such contracts are separate contracts between
the nonprofit organization and the contractor.
Section 1807(j) establishes procedures to expedite
assistance to nonprofit organizations.
Section 1808(a) authorizes the Secretary to provide
grants to units of local government to offset
incremental costs associated with law enforcement in
areas where there is a high concentration of nonprofit
organizations.
Section 1808(b) restricts the use of the grant funds
to personnel costs or equipments needs.
Section 1808(c) requires the Secretary to award
grants in such amounts as to maximize the impact of
available funds.
Section 1809(a) establishes within the Department of
Homeland Security the Office of Community Relations and
Civic Affairs to administer the programs for nonprofit
organizations and local law enforcement.
Section 1809(b) establishes additional
responsibilities for the Office of Community Relations
and Civic Affairs including coordinating community
relations efforts of the Department, serving as the
official liaison of the Secretary to the nonprofit,
human and social services, and faith-based communities,
and assisting in coordinating the needs of those
communities with the Citizen Corps program.
Section 1810(a) authorizes $100 million for fiscal
year 2005 and such sums as necessary for fiscal years
2006 and 2007 for the nonprofit organizations program.
Section 1810(b) authorizes $50 million for fiscal
year 2005 and such sums as necessary for fiscal years
2006 and 2007 for the local law enforcement assistance
grants.
Section 1810(c) authorizes $5 million for fiscal year
2005 and such sums as necessary for fiscal years 2006,
and 2007 for the Office of Community Relations and
Civic Affairs.
Section 1810(d) authorizes such sums as may be
necessary for fiscal years 2005, 2006, and 2007 for the
loan guarantee program but limits the authorization to
$250 million for each of those fiscal years.
Section 5 makes technical and conforming amendments.
V. ESTIMATED COST OF LEGISLATION
S. 2275--High Risk Nonprofit Security Enhancement Act of 2004
Summary: Assuming appropriation of the necessary amounts,
CBO estimates that implementing S. 2275 would cost $504 million
over the 2005-2009 period. Enacting this bill would not affect
direct spending or revenues.
S. 2275 would authorize the Department of Homeland Security
(DHS) to contract with appropriate companies to improve
security at those 501(c)3 nonprofit organizations that are
determined to be most vulnerable to potential terrorist
attacks. In addition, the bill would establish a new loan
guarantee program for all nonprofit organizations that might
need additional security enhancements to protect them from
terrorist attacks. The bill also would establish a grant
program for local law enforcement agencies to offset costs
associated with increased security in areas with a high
concentration of nonprofit organizations. Finally, the bill
would establish a new Office of Community Relations and Civic
Affairs to administer the new security program for nonprofit
organizations, among other duties.
S. 2275 contains an intergovernmental mandate as defined in
the Unfunded Mandates Reform Act (UMRA). CBO estimates the cost
for state governments to comply with that mandate would be well
below the threshold established in that act ($60 million in
2004, adjusted annually for inflation). State and local law
enforcement agencies would benefit from the assistance grants
authorized by the bill; any costs to those governments in
connection with those grants would be incurred voluntarily. The
bill contains no new private-sector mandates as defined in
UMRA.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 2275 is shown in the following table.
The costs of this legislation fall within budget function 450
(community and regional development).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2005 2006 2007 2008 2009
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Security Contracts for Nonprofit Organizations: \1\
Estimated Authorization Level.................................. 100 100 100 0 0
Estimated Outlays.............................................. 25 75 100 75 25
Loan Guarantees for Nonprofit Organizations:
Estimated Authorization Level.................................. 13 13 13 0 0
Estimated Outlays.............................................. 3 10 13 10 3
Law Enforcement Grants: \1\
Estimated Authorization Level.................................. 50 50 50 0 0
Estimated Outlays.............................................. 12 38 50 38 12
Office of Community Relations and Civic Affairs: \1\
Estimated Authorization Level.................................. 5 5 5 0 0
Estimated Outlays.............................................. 5 5 5 0 0
Total Changes:
Estimated Authorization Level.................................. 168 168 168 0 0
Estimated Outlays.............................................. 45 128 168 123 40
----------------------------------------------------------------------------------------------------------------
\1\ The 2006 and 2007 levels assume these programs continue at the bill's specific authorization level for 2005.
Basis of estimate: For this estimate, CBO assumes that S.
2275 will be enacted near the end of fiscal year 2004 and that
the necessary amounts will be appropriated in each year
starting in 2005. CBO estimates that implementing S. 2275 would
cost $504 million over the 2005-2009 period.
Security Contracts for Nonprofit Organizations
S. 2275 would authorize the DHS to contract with
appropriate companies to improve security at those 501(c)3
nonprofit organizations that are determined to be most
vulnerable to potential terrorist attacks. S. 2275 would
authorize the appropriation of $100 million in 2005 and such
sums as are necessary in 2006 and 2007 for such contracts. For
this estimate, CBO assumes that amounts authorized to be
appropriated in 2006 and 2007 would be equal to the 2005
authorization level. Assuming appropriation of the authorized
funds, CBO estimates that entering into security enhancement
contracts would cost $300 million over the 2005-2009 period.
Loan Guarantees for Nonprofit Organizations
This legislation also would establish a new loan guarantee
program to improve security at nonprofit organizations. Under
this new loan guarantee program, the federal government would
insure loans, with at least a 25-year repayment term, made to
nonprofits to support physical security enhancements or to
provide related training to employees. The legislation would
not require any guarantee fees to be charged to the nonprofits
and would not limit the percentage of the loan that would be
insured by the federal government. Consequently, CBO assumes
that DHS would insure up to 100 percent of the loan value and
that the borrower would not be charged any guarantee fees.
This legislation would authorize the appropriation of
whatever amounts are necessary for the cost of loan guarantees
over the 2005-2007 period and would authorize a $250 million
limitation on the cumulative value of the loans that may be
guaranteed for each fiscal year. The new loan program would be
considered a discretionary federal credit program and would
require appropriation action to establish this loan limitation
and to provide a credit subsidy for the cost of such loan
guarantees.
Based on information from various nonprofit organizations,
CBO assumes that nonprofit organizations face financial risks
similar to those of small businesses. Using the Small Business
Administration's 7(a) general business loan program as a guide,
CBO assumes that, like small businesses, the default rate for
loans made to nonprofit organizations would be about 10 percent
and that recoveries on such losses would be about 50 percent.
Using those assumptions, CBO estimates that the subsidy rate
for the new loan guarantee program would be about 5 percent,
and that establishing this program would cost $39 million over
the next five years, assuming appropriation of the necessary
amounts. (The 7(a) program has a smaller net subsidy because it
includes up-front fees that offset some of the default costs.)
Law Enforcement Grants
S. 2275 would authorize DHS to provide grants to local
enforcement agencies in areas where there is a high
concentration of nonprofit organizations. These grants would
pay for increased costs associated with protecting such
organizations. S. 2275 would authorize the appropriation of $50
million in 2005 and such sums as is necessary in 2006 and 2007
for these grants. For this estimate, CBO assumes that the
amount authorized to be appropriated in 2006 and 2007 would be
equal to the 2005 authorization level. Assuming appropriation
of the authorized funds, CBO estimates that providing these
grants would cost $150 million over the 2005-2009 period.
Office of Community Relations and Civic Affairs
This bill would establish a new office within DHS to
administer the new security enhancement program for nonprofit
organizations. In addition, the office would coordinate
community relations efforts for the department, serve as the
liaison to nonprofit, social services, and faith-based
organizations, and assist in coordinating the needs of
communities for the department's Citizen Corps program. S. 2275
would authorize the appropriation of $5 million in 2005 and
such sums as necessary in 2006 and 2007 for this office. For
this estimate CBO assumes that amounts authorized to be
appropriated in 2006 and 2007 would be equal to the 2005
authorization level. Assuming appropriations of the authorized
funds, CBO estimates that this new office would cost $15
million over the 2005-2009 period.
Intergovernmental and private-sector impact: S. 2275
contains an intergovernmental mandate as defined in UMRA
because it would require state agencies to receive and evaluate
applications from nonprofit organizations for security
assistance. No funds are authorized for those administrative
tasks. According to state government representatives, the
administrative costs for assistance programs are typically 3 to
5 percent of the monetary value of the assistance provided.
Based on that information, CBO estimates that the cost for
state governments to comply with that mandate would be less
than $5 million annually, well below the threshold established
in UMRA ($60 million in 2004, adjusted annually for inflation).
State and local law enforcement agencies would benefit from
a new grant program for the incremental costs of providing
services to certain high-risk nonprofit organizations. Assuming
appropriation of the authorized funds, CBO estimates that state
and local law enforcement agencies would receive $150 million
over the next five years; any costs of participating in the
grant program would be incurred voluntarily.
S. 2275 contains no new private-sector mandates as defined
in UMRA.
Previous CBO estimates: On June 21, 2004, CBO transmitted a
cost estimate for H.R. 3266, the Faster and Smarter Funding for
First Responders Act of 2004, as ordered reported by the House
Committee on the Judiciary on June 16, 2004. In addition to
grants for first responders, H.R. 3266 also includes the
provisions concerning nonprofit organizations that are in S.
2275. The estimated federal costs of these provisions are the
same. CBO has determined that, unlike H.R. 3266, S. 2275
contains an intergovernmental mandate.
Estimate prepared by: Federal Costs: Julie Middleton and
Susanne Mehlman. Impact on State, Local, and Tribal
Governments: Melissa Merrell and Lauren McMahon. Impact on the
Private Sector: Paige Piper/Bach.
Estimate approved by: Robert A. Sunshine, Assistant
Director for Budget Analysis.
VI. EVALUATION OF REGULATORY IMPACT
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill. CBO states that
there is an intergovernmental impact as defined in the Unfunded
Mandates Reform Act (UMRA). CBO estimates the cost for state
governments to comply with that mandate would be well below the
threshold established in that act. State and local law
enforcement agencies would benefit from the assistance grants
authorized by the bill; any costs to those governments in
connection with those grants would be incurred voluntarily. The
bill contains no new private-sector mandates as defined in
UMRA. The legislation contains no other regulatory impact.
VII. CHANGES IN EXISTING LAW
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, there are no changes in existing
law made by the bill as reported.
VIII. MINORITY VIEWS OF SENATORS DURBIN AND LEVIN
A. Introduction
Nonprofit organizations make valuable contributions to our
society by providing social, religious, educational, and
cultural services. A terrorist attack--either international or
domestic--on these institutions would disrupt these vital
services and threaten the lives and well-being of the American
citizens who operate, utilize, live, or work in proximity to
such organizations. While we agree there is a public interest
in protecting the lives and property of our citizens, we have
many concerns regarding this legislation, from constitutional
to practical.
B. Constitutional Concerns
This legislation, as introduced, raised two major
constitutional concerns: (1) the provision of loan guarantees
with favorable repayment terms and (2) the provision of
physical security enhancements on buildings used for religious
worship and instruction. Although the first issue was addressed
by the Durbin-Levin amendment that was adopted by the
Committee, the second issue was not resolved, and it
unconstitutionally violates the First Amendment's separation
between church and state.
We do not wish to suggest that all aid to religious
organizations raises constitutional concerns. On the contrary,
we agree with the majority report that there is no
constitutional question regarding this bill's authorization of
contracts for technical assistance. Similarly, we support the
local law enforcement grants to offset incremental costs
associated with law enforcement in areas where there is a high
concentration of nonprofit organizations.
However, a laudable purpose does not sanction an
unconstitutional government act. The issues discussed below
reflect an area of law that certainly would have been worthy of
a hearing so that the Committee could have heard testimony from
expert witnesses on both sides before taking action affecting
one of the most important principles on which our nation was
founded.
1. Loan Guarantees
The legislation as introduced provided loan guarantees with
favorable repayment terms. However, loan guarantees for
construction or capital improvements in buildings where there
is religious worship or instruction lead us to questionable
constitutional territory, and proponents of this legislation
have not clearly demonstrated that this aid is constitutional.
As the majority report notes, nonprofit organizations
benefit from loan guarantees, and some argue that this would be
an unconstitutional subsidy to religious organizations--with or
without favorable repayment terms. At the same time, others
note that Congress provided similar loan guarantees when we
responded to a series of church arsons by enacting the Church
Arson Prevention Act of 1996 (104 P.L. 155).
Without specifically addressing the constitutionality of
loan guarantees for religious organizations, Senators Durbin
and Levin sought to ensure that this legislation would follow
the model established in 1996 more precisely.
The legislation as introduced would have required that all
loan guarantees be made under favorable repayment terms,
defined as at least one full percentage point below market
rate, with a repayment term of no less than 25 years. The
Church Arson Prevention Act of 1996, on the other hand, did not
specify any requirements for the interest rate or term of
repayment. Instead, it had more neutral requirements.
Therefore, the Durbin-Levin amendment removed the provisions of
S. 2275 that would have required favorable repayment and
replaced them with exactly the same loan terms Congress
authorized in 1996.
In adopting this amendment, the Committee sought to address
this constitutional concern by following previous Congressional
precedent; however, it is unclear whether these changes would
be sufficient to withstand a constitutional challenge to the
overall issue of loan guarantees to religious organizations.
2. Physical Security Enhancements on Structures Used for Religious
Worship and Instruction
The second constitutional concern, which remains
unaddressed, is this legislation's authorization for the
federal government to enter into contracts to purchase and
install physical security enhancements on the real property of
nonprofit organizations.
The majority report focuses on the purpose of this
legislation, which is ``protecting potential and attractive
terrorist targets,'' and we agree this is ``an important and
valid secular purpose.'' However, the federal courts must
examine more than a law's purpose to determine whether it is
constitutional. For example, although the majority report notes
that courts have upheld the constitutionality of enhanced
criminal penalties based on legislative purposes similar to
those of S. 2275, those cases have limited relevance here
because they address criminal statutes and not government aid
to religious organizations.
The majority report analyzes the constitutionality of S.
2275 by using three lines of Supreme Court cases: Lemon v.
Kurtzman (403 U.S. 602), Everson v. Board of Education (330
U.S. 1), and Tilton v. Richardson (403 U.S. 672). However, two
of these cases--Lemon and Everson--are not appropriately
analogous to S. 2275; this legislation is more properly
examined in light of Tilton, which addressed government aid for
the physical improvement of property owned by religious
institutions. Based on the Supreme Court ruling in Tilton (and
in the subsequent, related case of Committee for Public
Education & Religious Liberty v. Nyquist, Commissioner of
Education of New York (413 U.S. 756)), S. 2275 is clearly
unconstitutional. Since the majority report fails to
distinguish this legislation from these cases, we conclude that
S. 2275 violates the First Amendment's separation between
church and state.
A. Tilton is the most appropriate case to examine the
constitutionality of S. 2275
The majority report asserts that S. 2275 is constitutional
because it meets the three prongs of the Lemon test. The Lemon
test was established in a case regarding government aid to
churchrelated educational institutions, and although this test
may be useful in determining the constitutionality of some
statutes, it does not directly address the physical improvement
of structures used for religious worship and instruction. On
the same day the Supreme Court decided Lemon--June 28, 1971--it
also decided Tilton, which the majority report acknowledges
``addressed the issue specifically of government aid related to
physical improvements to property.'' Since the focus of Tilton
is more analogous to S. 2275, it is a more persuasive case than
Lemon for examining this legislation's constitutionality.
The majority report also attempts to analogize S. 2275 with
the cases of Everson v. Board of Education and Board of
Education v. Allen. The report states that ``[t]he security-
related capital improvements funded by this bill are more like
the bus service and police protection for sectarian
institutions that the Court has approved than the whole-scale
construction of a building, which is has not.''
As we noted above, we agree that police protection is
constitutionally permissible, and we support the local law
enforcement grants provided by this legislation. Although the
physical security enhancements provided by S. 2275 are
dedicated to the same purpose as police protection, namely
safety and security, these capital improvements are not
analogous to the assistance considered by the Court in Everson.
That Court discussed police protection in the context of
``general government services [such] as ordinary police and
fire protection, connections for sewage disposal, public
highways and sidewalks (emphasis added).'' (Everson at 17.)
These are public services that the government provides
generally for all citizens. George Washington University Law
School Professors Ira Lupu and Robert Tuttle, who analyze
churchstate law and developments for the Roundtable on Religion
and Social Welfare Policy, characterize these services as
``matters of common right, available to all without regard to
status in the community.'' (Lupu and Tuttle, ``New Federal
Policies on Grants for Disaster Relief or Historic Preservation
at Houses of Worship and Places of Religious Instruction,''
June 1, 2003, at 5.)
On the other hand, the capital improvements provided by S.
2275 would be far more limited and would aid only select groups
of citizens and institutions. Professors Lupu and Tuttle also
note that the scarcity of government aid for construction
raises the danger of religious favoritism in allocating that
aid. (Id.) Finally, the capital improvements provided by S.
2275 could hardly be classified as ``ordinary police
protection.'' Indeed, the purpose of this legislation is to
provide extraordinary protection to certain institutions.
Therefore, we believe that S. 2275 is more analogous to the
decisions in Tilton and Nyquist, which addressed government aid
for the physical improvement of property owned by religious
institutions, than it is to Everson, which addressed the
provision of general government services.
B. Based on the Supreme Court rulings in Tilton and
Nyquist, S. 2275 is clearly unconstitutional
The two major cases in this area of constitutional law are
Tilton v. Richardson and Committee for Public Education &
Religious Liberty v. Nyquist, Commissioner of Education of New
York.
Tilton involved a challenge to the constitutionality of a
federal law that authorized grants and loans to institutions of
higher education for the construction of libraries and other
academic facilities. Although that law allowed such funds to be
granted to religious institutions, it also contained a
provision that expressly excluded funds from being used for
``any facility used or to be used for sectarian instruction or
as a place for religious worship.'' This prohibition for
religious use of the structures was limited to the period of
government interest, which was defined by the legislation as 20
years.
The Supreme Court determined that the 20-year limitation on
the prohibition for religious use was unconstitutional, thus
demonstrating that the prohibition was constitutionally
necessary to uphold the program. In doing so, the Court ruled
the following:
Limiting the prohibition for religious use of the
structure to 20 years obviously opens the facility to
use for any purpose at the end of that period. It
cannot be assumed that a substantial structure has no
value after that period and hence the unrestricted use
of a valuable property is in effect a contribution of
some value to a religious body. (Tilton at 683.)
In other words, if the government is going to fund the
construction of a building, there must be a prohibition on
religious use of the structure until that structure has no
value.
In Nyquist, the Supreme Court struck down a program that
would have provided governmental maintenance and repair grants
for nonpublic schools in the state of New York ``to ensure the
health, welfare and safety of enrolled pupils.'' Despite the
worthy goals of the New York state legislature, the Supreme
Court ruled that ``the propriety of a legislature's purposes
may not immunize from further scrutiny a law which either has a
primary effect that advances religion, or which fosters
excessive entanglements between Church and State.'' (Nyquist at
774.)
As the majority report quoted from the Nyquist decision,
``Absent appropriate restrictions on expenditures for these and
similar purposes, it simply cannot be denied that this section
has a primary effect that advances religion in that it
subsidizes directly the religious activities of sectarian
elementary and secondary schools.'' (Id.) Importantly, the
Court further said that ``[n]o attempt is made to restrict
payments to those expenditures related to the upkeep of
facilities used exclusively for secular purposes, nor do we
think it possible within the context of these religion-oriented
institutions to impose such restrictions (emphasis added).''
(Id.)
Although there have been several major cases regarding the
First Amendment and the separation between church and state
since these decisions were handed down more than 30 yearsago,
these two cases are still good--and binding--law. Professors Lupu and
Tuttle wrote the following:
Despite [recent] movement in federal constitutional
law, the rule of Tilton and Nyquist, which appears to
require exclusively secular use for publicly financed
buildings, has never been repudiated or even seriously
questioned in the Supreme Court. (Lupu and Tuttle at
3.)
Based on this analysis of clear Supreme Court precedent, S.
2275 is unconstitutional because it authorizes contracts for
physical improvements on structures used for religious worship
and instruction.
C. The majority report fails to distinguish S. 2275 from
Tilton and Nyquist
The majority report attempts to distinguish the program
established in S. 2275 from the Tilton-Nyquist line of cases
through the following arguments: (1) S. 2275 provides no direct
funding, but rather offers contracts and loan guarantees to
provide security enhancements; (2) S. 2275 provides financial
assistance for only a very narrow set of capital improvements
which are aimed at enhancing the security of the citizens who
use the facilities; and (3) none of the enhancements supported
by S. 2275 could be diverted for use for religious purposes.
These arguments echo those in the Memorandum from the American
Law Division, which is cited in the majority report and
concluded that S. 2275 ``could be distinguished'' from Tilton
and Nyquist (emphasis added). (Memorandum at 3-4.) However,
none of these arguments is persuasive.
First, there is little constitutional significance to the
legislation's requirement that security enhancements be
provided through contracts with certified contractors, rather
than through direct aid. If such contracts were sufficient to
distinguish this program and address this constitutional
concern, Congress could fund the entire construction of a house
of worship, as long as the funds were paid to the construction
company, rather than directly to the religious organization.
Secondly, the legislation's requirement that financial
assistance be used only for a narrow set of capital
improvements--while important--is not a sufficient distinction
from either Tilton or Nyquist. The majority report and the
Memorandum from the American Law Division both miss a critical
point about Tilton: the prohibition on the use of government-
financed structures for religious purposes was constitutionally
necessary to uphold the program. Without such a restriction, a
simple requirement that the capital improvements be used for
security enhancements would not be sufficient to satisfy the
Tilton rule. With respect to Nyquist, as noted above, but not
addressed by the majority report or the Memorandum, the Court
held that it is impossible within the context of certain
religion-oriented institutions to impose restrictions on
expenditures to exclusively secular purposes. Therefore, this
argument and the Memorandum also miss a crucial aim of Nyquist,
which was to prevent government expenditures from being used on
structures that are not solely secular in their use.
Finally, the majority report argues that S. 2275 can be
distinguished from Tilton and Nyquist because none of the
security enhancements can be diverted for religious purposes.
This theory is similar to the American Law Division argument
that S. 2275 could be distinguished from Tilton because S. 2275
``does not include elements that would shift the primary effect
from what is arguably constitutionally permissible--providing
greater security for nonprofit organizations--to something that
is constitutionally impermissible--advancing religion.''
(Memorandum at 3.) These analyses again miss a central part of
the Supreme Court's ruling in Tilton. The provision identified
in Tilton that would have unconstitutionally diverted the
effect of the program to support religious purposes was the 20-
year limitation on using the structure built with government
funds for sectarian instruction or religious worship. While it
is accurate that S. 2275 does not have such a time limitation
that could shift its effect, it fails the Tilton rule because
it does not contain the prohibition at all.
We agree with the majority report that: ``Tilton appears to
stand for the proposition that the government may not
contribute financially to the construction of buildings used
for religious worship or instruction. That reading of Tilton
would be an obstacle to granting aid to the physical structure
of religious institutions such as houses of worship.'' However,
the majority report's attempts to distinguish S. 2275 from
Tilton and Nyquist fall short, and S. 2275 is unconstitutional
because it clearly fails the Tilton rule that requires a
specific restriction on the use of government-subsidized
structures for religious activities.
D. The Durbin-Levin Amendment would have satisfied the
Tilton rule
To address this constitutional concern, Senators Durbin and
Levin offered an amendment to ensure that S. 2275 passed the
Tilton rule. This amendment would have clarified that physical
security enhancements only could be purchased and installed to
the extent that the property to be improved would not be used
for religious instruction or worship, unless and until the
security enhancements had no value. In other words, when the
security enhancements had depreciated to the point that they
had no value, the building or land on which those enhancements
were installed then--and only then--could be used for religious
purposes. Although this amendment simply would have codified
the Supreme Court ruling in Tilton, it was defeated by a vote
of 6-10.
E. Without the Durbin-Levin Amendment, there are many
examples of possible constitutional violations
From a practical perspective, consider the following
examples that would be permissible under S. 2275 but would
violate the Constitution and the precedents established by
Tilton and Nyquist. First, a house of worship wants to deter a
car bomber from attacking the main structure of its building,
but instead of jersey barriers or bollards in front of the
building, it obtains funds through this legislation to
construct a vestibule at the front of the building. If the
house of worship later decides to use that vestibule as a place
for baptism, it clearly would have diverted the security
enhancement to religious purposes. Although this is an unlikely
possibility, nothing in this legislation would prohibit it from
occurring.
Another example would be if government funds were used to
fortify stained glass windows that have religious depictions.
These windows often play a role in the worship experience,
andsome legal commentators believe it would be unconstitutional for the
government to fund the maintenance or historic preservation of such
windows because doing so would lead to excessive government
entanglement with religion. We believe this legal analysis equally
applies to the aid in S. 2275 for the security enhancement of windows
with religious themes.
Finally, consider the use of government funds to harden
doors or install security cameras in buildings used for
religious worship or instruction. Although this is not as
obviously unconstitutional as the previous examples, it
nonetheless fails the Tilton test because the buildings are
being used for religious purposes.
F. Because of these constitutional concerns, even
organizations that would benefit from this
legislation oppose it
The Union for Reform Judaism and Jewish Reconstructionist
Federation represent a combined 1,000 congregations and 1.5
million Americans. On June 10, 2004, they wrote a letter to
Congress regarding S. 2275, in which they recognized that
``[n]on-profit institutions, particularly religious
organizations, and most particularly Jewish ones, are at great
risk from [terrorist] acts of violence and hatred.'' However,
they oppose this legislation based on the following principle:
The security needs of our nation's high-risk non-
profit institutions deserve the fullest attention of
Congress, but not in a manner that dangerously
threatens the wall separating church and state, which
has been a bedrock of democracy and the foundation of
religious liberty in our country for over two hundred
years.
Similarly, Michael Lieberman, Washington Counsel for the
Anti-Defamation League, said, ``Jewish institutions really do
have a special need for security. But government should not be
involved in their funding. That approach is fraught with
peril.'' (Rick Jervis, ``Bill proposes security for synagogues:
Foes of funding cite church-state issues,'' Chicago Tribune,
April 17, 2004.)
G. The Bush Administration also recognizes that there is
some limit to the use of government funds for the
construction and physical improvement of structures
used for religious purposes
The Bush Administration--which itself has often blurred the
separation between church and state--also has acknowledged that
in certain contexts, there is a limit to the use of government
funds for ``brick and mortar aid'' to religious institutions.
On July 9, 2004, the Department of Housing and Urban
Development (HUD) issued a final rule regarding the ``Equal
Participation of Faith-Based Organizations.'' With respect to
the acquisition, construction, and rehabilitation of
structures, these regulations state the following: ``HUD funds
may not be used for the acquisition, construction, or
rehabilitation of structures to the extent that those
structures are used for inherently religious activities.''
(Federal Register, Vol. 69, No. 131 at 41713.) Even more
specifically, the rule further states: ``Sanctuaries, chapels,
and other rooms that a HUD-funded religious congregation uses
as its principal place of worship . . . are ineligible for
HUDfunded improvements.'' (Id.)
It is unclear if these provisions are sufficient to satisfy
the Tilton rule, but it is important to note the S. 2275 does
not even include these limitations.
3. Conclusion
We applaud the purpose of this legislation, but a laudable
secular purpose clearly is not enough to allay constitutional
concerns. Although the majority report analogizes S. 2275 with
the Church Arson Prevention Act of 1996, S. 2275 goes much
further because it would actually authorize contracts for
physical security enhancements to structures used for religious
worship and instruction. Furthermore, the constitutionality of
the loan guarantees authorized by the Church Arson Prevention
Act is uncertain (although that legislation has not been
challenged in court).
In conclusion, we believe that S. 2275 does not pass
constitutional muster. The most appropriate line of cases to
examine the constitutionality of this legislation is the
Tilton-Nyquist line, and the majority report has not
sufficiently distinguished S. 2275 from these rulings. Without
the Durbin-Levin amendment, S. 2275 does not satisfy the Tilton
rule and therefore is unconstitutional.
C. Additional Concerns
In addition to these constitutional concerns about S. 2275,
we have questions regarding the scope and practical
implementation of this legislation.
First, we are concerned that establishing separate funding
dedicated to the protection of high-risk nonprofit
organizations may override or even ignore the security concerns
that state and local governments already have prioritized. We
agree with the majority report that nonprofit organizations are
valuable assets to the country. At the same, we are facing
dramatic reductions in homeland security funds in fiscal year
2005, including a reduction of at least $235 million in overall
spending for our first responders. This new stream of funding
for nonprofit organizations may deplete funds that would
otherwise be available to augment this shortfall for first
responders or to improve the security of our ports, railways,
and critical infrastructure.
Furthermore, although S. 2275 requires a designated state
agency to rank all applications by severity of risk of
international terrorist attack, this ranking is only one of six
criteria that the Secretary of Homeland Security will consider
in selecting which applicants will receive federal contracts
and loan guarantees. Especially since it is unclear if these
factors should be weighed equally or if some are more critical
than others, it is possible--if not likely--that the priorities
of the state agency may be overridden.
We also believe that the establishment of an Office of
Community Relations and Civic Affairs seems contradictory to
efforts to consolidate grant programs for state and local
recipients within the Department of Homeland Security in order
to make it easier to apply and help streamline the flow of
funds. It is unclear why the purpose of this new Office could
not be fulfilled by the State and Local Coordination Office
currently established within DHS.
There also is no provision in this legislation to require
that the non-profit organizations that receive S. 2275 funds
coordinate with state and local agencies or with the officials
who are responsible for developing terrorism response plans,
conducting exercises, and acquiring equipment, to ensure that
there is no duplication and to engage in collaborative planning
and prevention activities.
Finally, if Congress does establish this separate funding
stream to secure nonprofit organizations, it should not limit
such protection to international terrorist attacks. We fail to
see the distinction between domestic and international attacks
on such organizations and believe it would be more appropriate
to guard these organizations from all attacks that would
disrupt the vital services they provide or threaten the lives
and well-being of the citizens who operate, utilize, or live or
work in proximity to such organizations.
D. Conclusion
Although nonprofit organizations play a vital role in our
society, we oppose S. 2275 because this legislation would
unconstitutionally fund physical security enhancements to
structures used for religious worship and instruction and
because it may override or even ignore the security priorities
set by state and local governments. Given these concerns, we
support the provisions of this legislation that would provide
technical assistance and local law enforcement assistance
grants to help secure high-risk nonprofit organizations. We
also would be willing to consider the loan guarantees
authorized by S. 2275, if proponents of that approach could
demonstrate clearly that such aid is constitutional.
Richard J. Durbin.
Carl Levin.