The MacNeil/Lehrer NewsHour

MR. MAC NEIL: Good evening. I'm Robert MacNeil in New York.

MR. LEHRER: And I'm Jim Lehrer in Washington. After our summary of the news this Tuesday, we look at the politics of congressional term limits, Lee Hochberg reports on the Supreme Court case about drug-testing student athletes, and two congressmen debate the future of the Food & Drug Administration. NEWS SUMMARY

MR. MAC NEIL: The House of Representatives began debate today on a constitutional amendment limiting terms for members of Congress. It's considered one of the more controversial parts of the Republican Contract With America. Legislation being considered includes restricting House members to six two-year terms and Senators to two six-year terms. An alternative being offered by Democrats would make 12-year term limits retroactive. This afternoon, members gave differing views of the measure.

REP. BILL McCOLLUM, [R] Florida: We need term limits. We need to limit the time that people can serve in this body. We need to restore the public to the checks and balances the founding fathers envisioned in this country who could never have seen that instead of serving two months a year, we're now serving year-round.

REP. BILL RICHARDSON, [D] New Mexico: Term limits are a bad idea whose time has not come. We already have term limits. They're called elections -- every two years. We don't need another constitutional amendment to change what the voters already have done, and that is change the Congress and the political system.

MR. MAC NEIL: The House is expected to vote on term limits this week, and we'll have more on the story right after the News Summary. Jim.

MR. LEHRER: The UnitedStates plans to act against Libya for not turning over suspects in the 1988 bombing of Pan Am Flight 103. Two hundred and fifty-nine people on board and eleven people on the ground were killed when the jetliner blew up over Lockerbie, Scotland. Two Libyan intelligence officers were indicted for the attack. White House spokesman Mike McCurry said today the United Nations will be asked to impose a worldwide embargo on Libyan oil. Secretary of State Christopher also spoke about the oil embargo.

WILLIAM CHRISTOPHER, Secretary of State: It would certainly be a very strong message if you could establish an oil embargo. It will not be easy to achieve but I think it's a reflection of our commitment to try to put as much pressure as we can on Gadhafi and the Libyan government to turn over those two individuals for trial in the United States or the United Kingdom and to foreswear to give up indefinitely their commitment to or their steps in the terrorist direction.

MR. LEHRER: The U.N. Security Council is scheduled to review existing sanctions against Libya later this week. They include restrictions on aviation, weapons, and diplomatic ties. Libyan leader Moamar Gadhafi said today he was seriously considering withdrawing Libya's membership in the United Nations.

MR. MAC NEIL: The Federal Reserve decided to hold the line on interest rates today. The Central Bank's policy makers met in Washington this morning. The Fed has raised rates seven times in the last year to fight inflation. A transit strike in the city of Philadelphia forced more than 300,000 commuters to find other ways to work today. Fifty-two hundred union members struck the nation's fourth largest transit system over wages and other benefits. No new talks are scheduled. More than 90,000 tons of mud made the commute for motorists impossible along California's Pacific Coast Highway for much of the day. Recent heavy rains were blamed for yesterday's landslide near Los Angeles. Earth-moving equipment and dump trucks worked to clear the area.

MR. LEHRER: The U.S. Supreme Court heard arguments today about mandatory drug testing of student athletes. At issue is an Oregon school district's requiring a drug test of a student before he could play football. Lawyers from the school district were joined by the Clinton administration in arguing random testing helps ensure the safety of athletes. Lawyers for the student countered the policy as degrading and intrusive, as well as unconstitutional. A decision is expected in June. We'll have more on the story later in the program.

MR. MAC NEIL: Americans and Europeans living in Burundi are being voluntarily evacuated because of increased ethnic violence. French civilians were flown out of the capital today. A U.S. embassy spokesman said 80 embassy dependents and other American citizens will begin departing tomorrow. Dozens of people of the central African nation have been killed in the last week and twenty thousand have been driven from their homes.

MR. LEHRER: And that's it for the News Summary tonight. Now it's on to the term limits debate, drug testing for student athletes, and the future of the FDA. FOCUS - TERM LIMITS

MR. LEHRER: The debate over term limits for members of Congress began today in one House of Congress, the House of Representatives. How it will end nobody knows, despite its widespread public support and its endorsement in the Republican Contract With America. Our coverage begins with this report by Kwame Holman.

SPOKESMAN: Elected office should be a period of service, not a career.

KWAME HOLMAN: Like many grassroots groups around the country, United We Stand, America, the organization created by supporters of Ross Perot, helped sweep Republicans into the congressional majority last fall. A big reason behind their support was the promise in House Republicans' Contract With America to push for term limits. While most polls show 70 to 80 percent of Americans favor limits on congressional terms, support on Capitol Hill is flagging.

MAN: What do you want me to put down here?

WOMAN: Something like this here: Please vote for this number.

MR. HOLMAN: And so last week, here in Bergen County, New Jersey, and at rallies around the country, United We Stand, America kept up the campaign, looking to the new Republican leadership in Congress not only to bring term limits to a vote, as promised in the contract, but to pass them as well.

ROY DOWNING, United We Stand, America: We called and actively campaigned for the biggest change in 40 years, and we were successful. If that didn't stand them a powerful message, they're not smart enough to be the most powerful people in the world.

MR. HOLMAN: But despite a concerted effort to pressure members of Congress by fax, phone, and letter, United We Stand, America and other grassroots groups face an uphill battle trying to add term limits to the Constitution.

CLETA MITCHELL, Term Limits Legal Institute: This is the only issue that the members are going to be voting on as part of the Contract With America that affects them personally, and it's -- I've been saying this is their welfare program. This is their entitlement program.

MR. HOLMAN: Cleta Mitchell is spearheading a coalition of national groups lobbying for term limits. She told producer Carol Blakeley the politicians aren't the only ones reluctant to embrace term limits.

CLETA MITCHELL: This is the issue that the political establishment loves to hate. The political journalists don't like it. The staff people don't. The lobbyists don't like it, and the members don't like it. The Republican and Democratic political establishment thinks that this is a flat earth issue, I mean, that those of us who support it are a little bit like the people who said the earth was flat. But it is interesting that our flat earth society is so popular with the American people even though it's not very popular here.

MR. HOLMAN: But for a time, term limits appeared to be extremely popular. In January, it was standing room only at a House Republican news conference to announce a push for the 290 votes needed to amend the Constitution and limit the terms of Senators and Representatives.

REP. BILL McCOLLUM, [R] Florida: We are interested in whipping, that is gaining the votes we need to have to get to the number of 290, and that means to ask the public, to knock on the door of every one of their congressmen who they may be in doubt about and make sure they believe, as we know 76 percent or better of the public does, that they vote for a term limit amendment final passage.

MR. HOLMAN: But in the hurly burly of House Republicans' 100 day dash toward completing work on the Contract With America, term limits no longer appear to be a high priority, with most Democrats and a number of Republicans now opposing them. The difficulty was highlighted earlier this month when House Speaker Newt Gingrich announced he was putting off consideration of term limits because the votes to pass them just weren't there.

REP. NEWT GINGRICH, Speaker of the House: It's an uphill fight. I've been honest all the way through. This is a very hard fight, to get 290 votes on the first round of any amendment.

MR. HOLMAN: But at the same news conference, presidential candidate Patrick Buchanan warned the Republican Party of the consequences of not passing term limits.

PATRICK BUCHANAN, Republican Presidential Candidate: The question we confront now is whether the Congress of the United States will frustrate the public will and whether or not my own party, the Republican Party, will collaborate in torpedoing term limits. Now, if Republicans are perceived as undermining term limits, the populist vote that helped elect the Republican Party in 1994 in that great revolution will round and turn on the Republican Party, itself.

MR. HOLMAN: Last week, term limit coalition organizers said many House members declined to have face-to-face meetings in their offices on the issue. Sensing a loss of momentum, they took to buttonholing members on the House steps, urging them to lobby their undecided colleague. That may have worked in the case of House Republican Conference Chairman John Boehner of Ohio. He held a news conference during the height of the lobbying to announce he was changing his position from opposing to supporting term limits.

REP. JOHN BOEHNER, [R] Ohio: Even though I, myself, may not think that this is the greatest idea to come down the pike, I don't think because the people in my district have voted for it that I have the right to stand in the way and to say, no, you can't consider it. It may be one of those issues, a bad idea who's come.

REP. MARGE ROUKEMA, [R] New Jersey: I don't buy it. That may be Mr. Boehner's explanation, but I don't buy it.

MR. HOLMAN: Republican Congresswoman Marge Roukema is in her eighth term representing part of Bergen County, where the grassroots term limit movement is trying to pile on the pressure, but Roukema already has been reelected with overwhelming support twice since taking a public position against term limits.

REP. MARGE ROUKEMA: I'm afraid in the real world it's very different from the ideals that the American people want. In the real world, automatic term limits is going to mean a lot of people coming in and build their resumes, figure, hey, this is a good deal, I'll come in, I'll become a Congressman for a while, build a resume, make contacts with the special interest groups on the committees on which I serve, and by gosh, I'll have a good job waiting for me when I get through.

MR. HOLMAN: As debate on term limits got underway this afternoon in the House of Representatives, members had a variety of plans to choose from.

REP. JOSEPH KNOLLENBERG, [R] Michigan: The new open GOP Congress will bring not one, not two, not three, but four, four term limit proposals to the floor for a first ever vote to replace career politicians with citizen legislators and return the balance of power back to the people.

MR. HOLMAN: Florida Republican Bill McCollum is leading the fight for a plan that would limit the terms of Senators and Representatives to 12 years and override any state-imposed limits.

REP. BILL McCOLLUM: The founding fathers of this country could not have envisioned when they wrote the Constitution the kind of full-time Congress we have today or the career orientation that members have developed. If you think about it, Congressmen in the early days, in fact, for the first hundred plus years of our country only served one or two months a year up here in Washington, and they went back home and did their businesses and did the ordinary things they do in the community, and very frequently, they only served one or two terms. It was a rare exception for them to serve longer.

MR. HOLMAN: Another Republican plan would limit House members to six years, while a third plan, again, would limit House and Senate terms to twelve years but would not preempt states from setting shorter limits.

REP. JACK METCALF, [R] Washington: Fundamental to the idea of a citizen Congress is the principle that members serve a limited time and then return home to live under the laws they've made. I support the initiative passed by the voters of the state of Washington establishing a six-year term limit for members of Congress. This is the mandate from the people. Pass a term limit amendment on the Congress as we did for the presidency.

MR. HOLMAN: The loan Democratic alternative sponsored by Florida's Peter Peterson and Michigan's John Dingell would make 12- year term limits on the House and Senate retroactive.

REP. PETE PETERSON, [D] Florida: On January 11th of this year, I dropped a bill on term limits restricting to 12 years, but different from everybody else's, I said it should apply to me and every other member of this House. That's the argument we're going to have this year and this week. And you're going to be asked to stand up and be counted. America says term limits applies to us. If they're angry at Congress, can it not be that they're angry at us?

MR. HOLMAN: But the great majority of Democrats, as well as some Republicans, oppose term limits, no matter what the plan.

REP. MARY KAPTUR, [D] Ohio: For you say, in whose interest is it to have term limits, in whose interest is it to have juvenile representation here, to have constant upheaval, where members don't even know one another on the floor? There's been a 2/3 change in this chamber just in the last six years. In whose interest is it to have this place in constant upheaval?

MR. HOLMAN: With only about 80 percent of Republicans declared in favor of term limits, a measure would need some 100 House Democrats to pass. The final vote on term limits will come tomorrow.

MR. LEHRER: Now, two veteran congressional analysts look at the political stakes in this term limit fight. Both are editors of political newsletters which focus on Capitol Hill. They're Charles Cook and Stuart Rothenberg. Charlie Cook, how important is this vote for Republicans?

CHARLES COOK, Political Analyst: You know, oftentimes we look at votes like the flag-burning vote, the Persian Gulf War vote and say at the time that it happens this is going to be the most important thing in the world, and then when election time comes along, it's not very important. I think this time it really is important. For the Perot voters, I think the Perot voters in the 90s are going to be just as important as the Reagan Democrats were in the 80s, and for them, this is the most important vote there is.

MR. LEHRER: So for a Republican, voting against this, they vote against it at their own risk?

MR. COOK: It's a problem. Perot voters voted two to one Republican in the 1994 election, so for the Republicans that do vote against this, they've got to answer to those Perot voters. It's a problem.

MR. LEHRER: Stuart.

STUART ROTHENBERG, Political Analyst: Well, Jim, I think that candidates who oppose term limits are going to have to answer for that, but I think they can by putting their current service in a larger context, by talking about change and how they've accomplished change, how they voted for change, pointing to congressional reform, unfunded mandates, and a variety of measures that are going to pass between now and the end of the 104th. In addition, if you look at public support for term limits, clearly, it's there at 70, 75 percent. But don't just look at the questions that say are you for term limits or against term limits. Put it in the context of what are your priorities? And if you look at Gallup Polls the end of 1994, Times-Mirror surveys at the end of '94, you see that term limits actually are further down on the list in terms of priorities. People are much more concerned with a balanced budget, cutting spending, health care reform, and welfare reform, so I think it's a question of can a member of Congress who votes against term limits talk about change, talk about other accomplishments, and I think many can.

MR. COOK: See, I think for most, for most voters in terms of the Reagan agenda, the Republican agenda, there are only two things they know about: the balanced budget amendment and term limitations. They really aren't aware of a lot of these other things going on. And for those Perot voters this is key. For the rest of 'em, yeah, it's -- I agree with Stu -- it's not that important.

MR. ROTHENBERG: Okay, but, Charlie, just look at the Republicans since you mentioned the Republicans. A hundred and ninety of those are going to vote for term limits anyway, so they are going to be able to say, hey, I kept my word, it's the other guy, it's the other member of Congress, and voters like to believe that, it seems to me. So then let's look at the other -- the 35 members, the Republicans who oppose it. Many of them have been in opposition for a long time. Bob Erhlich from Maryland campaigned acknowledging that was one issue where he differed from most Republicans. Henry Hyde's been opposed for a long time. That brings us to the Democrats. They have a harder problem, because they are still on the defensive about change. The Republicans, Newt Gingrich, the House Republicans have really created the momentum for change. I think Democrats have a harder problem, but, you know, they may find one of these term limit proposals to support, to go for, to say I found one I like, I just didn't like this one or that one.

MR. LEHRER: Well, what's your analysis, what the Democrats are up to? I mean, the retroactive thing, if they all vote for that, can't they go back and say, hey, wait a minute, we really did what you all wanted, angry voters, the Republicans did not?

MR. COOK: I think Democratic incumbents have a way of inoculating themselves if they go to that. Now a lot of them probably won't. But if I'm a Democratic challenger next year, I'm going to use this vote. I mean, I'm going to be -- you know, the challengers -- Stu and I meet -- met with, what probably three hundred candidates in the last year and a half, two years. They're all for term limitation. All the challengers are for it, unless they're from Save Seats, and they'll say anything it takes to get elected, but the thing about it is they're for it, and they're going to use it next year.

MR. LEHRER: And they're -- you think they're going to use -- you think that that will be the litmus test for these folks that are here now, they're going to have to go home and not -- as Stuart says, 190 Republicans and maybe a few Democrats will vote for it - - but those who don't, that -- you think that could really be the ultimate litmus test?

MR. COOK: For about 10 percent of the voters, the remaining Perot voters that are out there, I think it's going to be a litmus test issue. The other 90 percent that are out there, no, but for about half the Perot vote, I think it will.

MR. LEHRER: Is the issue for these people the fact that they wanted term limits, or is it the fact that they felt that these folks didn't follow up on a promise that they gave?

MR. COOK: I think it's both. I mean, they felt like they had a compact that we're going to throw the Democratic incumbents out, we're going to elect a Republican majority, and we're going to get term limitation. And when I'm out there talking to people and when they find out that this thing is -- I mean, they're shocked to find the suggestion that this isn't going to pass. They assume that given the level of change we had in November that term limitations would pass easily.

MR. LEHRER: What happened, Stuart? Why is it in trouble?

MR. ROTHENBERG: Well, I think that --

MR. LEHRER: Everybody assumed just exactly what Charlie has said, that, oh, my goodness, this is one thing that will go through.

MR. ROTHENBERG: Sure. Jim, let's remember that this is not the only issue like this. Can you recall the, the anti-flag burning constitutional amendment that was going to just fly through and the Supreme Court said you couldn't burn a flag, and that died very quickly? I think Democrats have never supported this, because philosophically they're opposed to it, and I think Republicans latched onto it as a populist, anti-Washington measure. So you had that division from the beginning, but there are some individual members who, who philosophically have concluded that it's either bad to monkey with the Constitution or believe that the voters have a chance to dump incumbents any time they wish.

MR. COOK: One other point is two hundred and ninety votes that you need for a constitutional amendment, that's just really hard on anything controversial. And that's the -- I mean, if this needed just a majority vote, it would win easily.

MR. LEHRER: But let's say that it got through the House -- gets through the House. Is there any way this could get through the Senate?

MR. COOK: I don't think so.

MR. LEHRER: Do you agree, Stuart?

MR. ROTHENBERG: I think it could not. No. I think we're unlikely to have a constitutional amendment, as long as members have enough cover on either proposals along this line or on generally other votes to go back to the voters to say we went to Washington and we changed things, that's what we promised you, but term limits is only one of those things, we didn't get that, but look at all the other things we did.

MR. LEHRER: But what about those folks who are going to say, wait a minute, whether it dies tomorrow in the House or whether it passes and goes on to the Senate in some form and dies in the Senate that it still didn't happen, and isn't there going to be, could there be, not isn't there going to be, could there be just general anger, oh, nothing has really changed here, is that -- isn't that going to be the --

MR. ROTHENBERG: There could be a recognition that this is a very complicated political situation and one election doesn't change very much and oh, my goodness, we thought we had given Congress the broom and we haven't, in which case there's going to be a fundamental argument between the Republicans pointing fingers at the Democrats and saying, it's all their fault, you've got to rid of Bill Clinton and all these other Democrats in Congress, and then we can really change things, and the Democrats talking about Republican extremism. Then you have the battle for 1996.

MR. COOK: Or you could see just simply an anti-incumbent reaction, that we thought we elected a new Congress to do this, they didn't do it, and it creates an anti-incumbent mood that hurts the incumbents of both parties, whether they voted for it or not, just sort of a plague on both your houses.

MR. ROTHENBERG: I just think that's very unlikely. We have divided government now with the Democrats controlling the White House, Republicans both Houses of Congress. I think the message for '96 is going to be much more muddled, a lot of finger pointing, and there may be some fundamental angle, but --

MR. LEHRER: What about the leadership in the House, the Republican leadership in the House, will they take some hits if this doesn't pass?

MR. ROTHENBERG: Well, I suppose they will among editorial writers and political analysts and some interest group people, but, look, they delivered most of the votes. There's only so much you can do. In the current political system, it's very hard for political leaders to exercise leadership.

MR. LEHRER: Why? What do you mean?

MR. ROTHENBERG: We have all these independent actors out there called members of Congress who either are House Congress Representatives or Senators who think they're above all this partisanship and party loyalty. And so it's very difficult for Gingrich or Bob Dole to make sure they get 100 percent support. Heck, in the Senate, Dole loses one Republican Senator, Mark Hatfield, and a lot of people are saying, well, he's finished, he's no good. I mean, that's silly. That's not the way the system operates anymore.

MR. COOK: The wolf ain't there anymore.

MR. LEHRER: You agree, though, that -- but is the public going to hold Gingrich responsible for this and Armey and Dole and all of them if this doesn't happen, or is it going to be more general than that?

MR. COOK: Well, 99 percent of them can't vote for these guys anyway, and so, you can be mad as you want at Gingrich, but unless you live in Marietta, Georgia, you can't do anything about it. So I think there may be some disaffection but for the average member, the rank and file member, that's where the rubber hits the road next year.

MR. LEHRER: What is your vote count? Is there an active vote count now?

MR. ROTHENBERG: Well, I've seen a number that suggests Republicans are at or near 230. That's a long way from 290, and it's probably too far for them to get, but they're going to keep scratching right up to the end.

MR. LEHRER: Yeah. Is that what you --

MR. COOK: Two thirty, sixty short.

MR. LEHRER: What are -- are there any arguments left to make to them? I mean, how do you go about -- what's the -- you all have watched this kind of thing for years -- how do you go about turning the screws on an issue like this, on a constitutional amendment that's so public, et cetera, what can an argument be at this late stage?

MR. COOK: There are no new arguments. I mean, the only thing is these guys are trying to figure out can they get away with voting against it or not, do they want to lie down across the railroad tracks or not, and that's fundamentally it. There are no arguments. These guys have thought about it. They know what they think. The question is: What do they think they can get away with?

MR. ROTHENBERG: I agree. I think it's a question of raw political power now, part of U.S. term limits, the one national interest group that supports term limits, if it can demonstrate that it can, it can ratchet up the cost of voting against term limits, if it can put enough pressure on individual members, apparently the way John Boehner saw the light, Congressman from Ohio, who still says he opposes term limits but he's going to vote for them, if term limits supporters can make it just too costly to vote against term limits, that's the only way it's going to pass.

MR. LEHRER: And then a person could vote for it on the grounds that, oh, well, it won't get through the Senate, it won't get through the legislature if it does, so it's a freebie?

MR. COOK: Well, the last edition of Profiles in Courage has already gone to the printer.

MR. LEHRER: Long, long time ago. Gentlemen, thank you both very much.

MR. MAC NEIL: Still ahead on the NewsHour, drug-testing student athletes, and the future of the FDA. FOCUS - CONTROVERSIAL TEST

MR. MAC NEIL: Next tonight, the legality of mandatory drug testing for school-aged athletes. The U.S. Supreme Court heard oral arguments today about whether the public school district in Vernonia, Oregon violated students' rights by forcing high school and middle school athletes to submit to drug tests. Correspondent Lee Hochberg of Oregon Public Broadcasting supports.

LEE HOCHBERG, Oregon Public Broadcasting: Like most students in Vernonia, a rural logging town, 15-year-old James Acton plays on a school sports team. But three years ago, as a seventh grader, his middle school didn't allow him to play on its football team. He had refused to take the drug test required at the time of all student athletes. He was getting good grades and not using drugs, and he resented having to prove he was clean.

JAMES ACTON, Student: Of course, you feel like you're guilty. Otherwise, why do you have to be taking the test? One of the founding things of our society was that you're not guilty, you're innocent until somebody else can prove that you're not.

MR. HOCHBERG: James's parents believe the mandatory urine test violated their son's fourth amendment protection against unreasonable, suspicionless searches. They filed suit in federal court.

JUDY ACTON, James's Mother: When he says I am not doing drugs, I don't have a problem with doing drugs, I'm not doing anything wrong, I feel that then why should we be asking him or telling him he has to prove it?

WAYNE ACTON, James's Father: It's un-American, because that's the Constitution.

JUDY ACTON: We have a Bill of Rights.

RANDALL AULTMAN, Principal: We don't like doing this and we know that it could -- you know, some people can construe it to violate the fourth amendment, but we feel that it's in the best interest of our community.

MR. HOCHBERG: School principal, Randall Aultman, who calls himself an anti-drug crusader, instituted the drug tests in 1989. In sessions with students, he argues that the serious school-wide drug problem justified infringement on their constitutional rights.

RANDALL AULTMAN: We recognize that it is an unreasonable search, but we feel in our community these drugs were taken over and controlling their behavior. I didn't know if this was right but everything else that I had been a part of trying to help had not worked.

MR. HOCHBERG: Most Vernonia teachers supported mandatory testing. Drama coach Kathy Sevig blames drug use for chronic behavior problems in her classroom.

KATHY SEVIG, Drama Teacher: When you have a kid who is normally you meet 'em on the street and they're fine, hello, Mrs. Sevig, and then one day they come to class and their eyes are all red and they're sitting in a seat and all of a sudden they start singing, "Jesus loves me" at the top of their voice off key, I think I'd have to be a fool to say, oh, you know, it's something else, you know, it's not drugs.

MR. HOCHBERG: The district channeled as many students as possible through the tests. Middle and high school students who wanted to participate in any extracurricular activity, including activities like drama, were required to pass random urine tests. Fearing a legal challenge, the district later scaled back the program to require only athletes be tested. It noted a federal court in Indiana had found testing athletes to be legal on grounds that their safety depends on being clean. Safety became the justification for Vernonia's program.

SCOTT FINLAY, Basketball Coach: We don't know what to expect from a player who's under the influence, and it becomes not only dangerous for the individual but for his teammates.

MR. HOCHBERG: Testing was put on "hold" last year when a federal appeals court ruled the Vernonia program unconstitutional. Acton's attorney convinced the court the school can deal with its drug problems without sacrificing James Acton's liberties.

THOMAS CHRIST, Acton's Lawyer: They should compel the unruly, undisciplined, disruptive students to submit to the test. They would have a reason to suspect them of drug use and to test them. But they don't have grounds to test everyone, including the students, like my client, James, who are well behaved.

RANDALL AULTMAN: His rights are not as important as the rights of the group, of the community, and of the school. His rights, to me, are not as important as the group's rights.

MR. HOCHBERG: The school's case before the Supreme Court may be hindered by a lack of evidence that Vernonia's drug problem is unusually serious. Local newspaper publisher Noni Anderson editorialized against testing.

NONI ANDERSON, Newspaper Editor: We have no more, no less drug problem than other towns of comparable size and situation. So the drug-testing policy made no difference on the amount of drug arrests, for instance, in the town and made no difference on the amount of drugs available in the town.

MR. HOCHBERG: The district has no data to compare student drug use before and during drug testing, and it has no evidence of drug- related injuries to athletes prior to testing to support its argument that drug testing protected its athletes. Aultman offers informal student surveys that do suggest drug use diminished.

RANDALL AULTMAN: I guess I just justify it in that it worked.

MR. HOCHBERG: Aultman says drug testing remains popular in the small logging community and elsewhere as it faces important legal tests.

RANDALL AULTMAN: If we go to the polls of this country, in the 50 states, and put this on a ballot, yeah or nay, I'll be it would pass and in pretty good numbers.

ACLU REPRESENTATIVE [talking to students] How many of you think it's a good policy. How many of you support it? [students raising hands] Okay.

MR. HOCHBERG: Vernonia's students seem to endorse the program. In a special seminar on drug testing last month, a representative of the ACLU, which is representing the Actons, failed to convince these high school students that drug testing threatens their liberties.

ACLU REPRESENTATIVE: Why not apply it all of society? Let's test everybody. If it's so great, with so little down side, let's test everybody. How many people -- how many people are in favor of that, test every American, every week? And I say that that's a mistake. It's short-sighted, because you are giving up more than you think, and you won't give it back.

RANDALL AULTMAN: Now, I'm not for giving up any of our Bill of Rights, but I am saying that there are going to come some cases and when we deal with it, and educators walk and see kids' lives wrecked by drugs, and this is where I draw the line.

MR. HOCHBERG: The anti-drug mood at the school is such that students produced and award these buttons to those who test drug free. As for the Actons, they emphasize they oppose drug use but say being drug free isn't the point.

JUDY ACTON: It's reducing it to a wiz quiz. That was insulting to me. It reduces important liberties to being minor, and, you know, this is -- I think it's more important than that.

THOMAS CHRIST: If the safety concerns in high school football are sufficient to justify testing, who in society would be immune from testing? I think that everybody will shortly be marched to a urinal to produce a specimen.

MR. HOCHBERG: As he awaits the court ruling, James is exploring activities he can enter without a drug test. Like the character he plays in this school performance of "Mash," he now finds himself at odds with his own government. The Clinton administration filed a brief with the high court. It argues the school's interest in preventing athletic injuries outweighs any invasion of student privacy. FOCUS - FDA'S FUTURE

MR. MAC NEIL: Next tonight: Does the Food & Drug Administration need radical surgery? In recent months, some Republican members of Congress have said it does. Margaret Warner has the story.

MARGARET WARNER: Since the Republican takeover of Congress, there have been repeated calls on Capitol Hill to overhaul the FDA. Critics charge the agency's approval process is keeping medical breakthroughs from getting to the patients who need them. Today in testimony before Congress, FDA Commissioner David Kessler defended his track record. He said he's streamlined the approval process, and that further reforms are underway. Tonight we have our own debate over the future of the agency that regulates drugs and food from aspirin to zucchini. We start with some background.

DAVID KESSLER, FDA Commissioner: [March 3] Our mission as the nation's oldest consumer protection agency is to provide basic public health protection for the foods we eat, for the drugs we take, and the medical devices we use.

MS. WARNER: In 1906, conditions in the meat-packing industry spurred Congress and President Theodore Roosevelt to enact the Pure Food & Drug Act and with it to create the FDA. It was the nation's first major piece of consumer protection legislation. Today, all drugs, cosmetics, and medical devices, and most foods must be approved by the FDA before they can be marketed to the American public. The agency's standards for approval are the strictest in the world. From the outset, the FDA has been at the center of a national debate over how far the government should go to protect consumers. Even its detractors concede the agency has had some successes. In the early 1960s, President Kennedy honored FDA researchers for saving Americans from a tragedy. The FDA had refused to approve a drug called Thalidomide, a sedative widely prescribed in Europe. Many pregnant European women who used the drug later gave birth to babies with severe deformities. But by the 1980s, the FDA was coming under criticism from all sides. Consumer groups said the agency wasn't tough enough. Reagan administration and business conservatives said the FDA was strangling the development of new drugs and medical products, and activists in the AIDS community railed against the FDA for moving too slowly to approve anti-AIDS drugs. Then in 1991, President Bush appointed David Kessler as FDA commissioner. Kessler vowed to bring tough enforcement of health and safety standards, but he also promised to speed up the FDA's slow and bureaucratic approval process. Kessler made food makers be more specific and accurate on their package labels, and he cracked down on the misuse of terms like "fresh" and "low fat."

DR. DAVID KESSLER, Food and Drug Administration: [June 1991] Consumers want and they deserve more accurate and useful information which will allow them to make informed choices.

MS. WARNER: In 1992, Kessler declared a moratorium on the use of silicone breast implants, citing the dangers from leakage and infection. He took the action, even though he was torn between the risk and the benefit to the women using them.

DR. DAVID KESSLER: [November 1991] There is another side to the equation, and that makes our task extraordinarily difficult. Breast implants have been used for three decades, and many implantations and physicians are convinced of their value. A number of women have personally told me what a difference these devices have made in their own lives.

MS. WARNER: Kessler also fulfilled his promise to speed up FDA drug approval, reducing the time by several months, and he developed an even speedier, fast track approval process for life- saving drugs. Many outside observers credit Kessler with striking a difficult balance. Philip Hilts covers the agency for the New York Times.

PHILIP HILTS, New York Times: Kessler is a lawyer and a pediatrician at the same time. He has taught FDA law, and so his focus was on strict FDA law. How does the agency operate, let's do it right, and at the same time he wanted to do the other thing; he wanted to move things along for industry. So at the one time he's getting strict, at the same time he's moving drugs faster. Now comes the new Congress in which they don't like regulation at all.

MS. WARNER: Chief among the FDA's critics in the new Congress is House Speaker Newt Gingrich. Gingrich is calling for major, though as yet unspecified, changes in the agency. The speaker has called the FDA the nation's leading job killer, and he's described Kessler, himself, as a thug and a bully. Recently, Gingrich used an experimental medical device called a cardiopump to make his point.

REP. NEWT GINGRICH, Speaker of the House: This increases by 54 percent the number of people with CPR who get to the hospital and have a chance to recover. It is illegal in the United States, because you can't get a test on a person with a heart attack because they're unconscious, so you can't get informed consent, so the FDA, the Food & Drug Administration, makes illegal the product used in 11 countries that minimizes brain damage, increases the speed of recovery, saves lives. These cost $200.

MS. WARNER: The FDA points out that the Danish manufacturer of the cardiopump hasn't yet applied for FDA approval, yet, even companies that are demanding further changes at the agency also recognize that they've benefited from the FDA process, according to the Times's Philip Hilts.

PHILIP HILTS: That is where the credibility of the American industry comes from, is the fact that the FDA has made them do it right, made them be quite safe compared to other countries. So this is a reputation that they care about, but they still want reform of some kind.

MS. WARNER: At a congressional hearing today, Dr. Kessler defended the FDA against the accusation that it is hostile to the industries it regulates.

REP. JACK KINGSTON, [R] Georgia: The No. 1 criticism cutting through all this is that FDA is antagonistic rather than conciliatory. When people come to 'em, you don't have a "can do" attitude, you have a "can't do" attitude towards the drug company or the medical device manufacturer or something like that.

DR. DAVID KESSLER: You don't think, Congressman, that I want to get a device that's going to improve people's lives out there as soon as possible? You don't think that the people -- who do you think come work at FDA? I mean, they're physicians, I mean, who take care of real patients, have lost real patients.

REP. JACK KINGSTON: Possibly, the bureaucrats of the FDA have got lost in the rules and regulation rather than the spirit of you know, hey, we really don't know all the answers out here.

DR. DAVID KESSLER: I know it's not politically correct to say this these days but I am -- the agency is a regulatory agency. It's not in fashion but there are times when you're a regulatory agency that you have to make sure that you have your objectivity intact.

MS. WARNER: But in this new Republican Congress, pressure on the FDA isn't expected to let up anytime soon.

MS. WARNER: We hear two views now on the FDA controversy. Congressman Joe Barton, Republican of Texas, is chairman of the House Commerce Subcommittee that oversees the FDA. His panel will hold hearings on Thursday. Congressman Dick Durbin is a Democrat from Illinois. He's the ranking minority member on the House Appropriations Subcommittee where Dr. Kessler testified today. Congressman Barton, let's start with you. You've been a critic of the FDA. What is wrong with the way the FDA is operating today?

REP. JOE BARTON, [R] Texas: Well, the fact that it's taking them much longer than the law requires to review some of these devices is a potential problem. The Food & Drug Administration, the FDA, shouldn't be the foot-dragging and alibi administration. Most of these devices are supposed to be reviewed within 90 days, and even the most complicated device is supposed to be reviewed within 180 days. Even using the FDA's own numbers, they're meeting very few of the deadlines to review these devices, and we say that say that sometimes time is, is a problem, because some of these devices have been approved for use in other countries and literally do save lives, are making it much more easy to treat some of these diseases or conduct some of the surgical procedures with some of the devices that go inside the body.

MS. WARNER: Congressman Durbin, how do you respond to that?

REP. DICK DURBIN, [D] Illinois: What I respond is that Dr. Kessler, who is literally the only hold-over from the Bush administration, is a professional, is a doctor, and a lawyer, and he has brought dramatic improvement to change the Food & Drug Administration. Everybody concedes that. I think even Joe Barton would concede that. The time that it takes for approval of drugs, as well as medical devices, has been reduced dramatically. But keep in mind that Dr. Kessler and FDA have an important responsibility and occasionally they have to say, no, this drug doesn't work, this medical device is dangerous, and some of the people who are pushing these get angry. And they come and organize in various groups and lobby their members of Congress saying the FDA is unfair. But basic fairness has to be to consumers. Let's not put anything on the market that could endanger American lives.

MS. WARNER: But Congressman Durbin, is Congressman Barton correct that the FDA is still taking longer than say the law requires to approve these devices?

REP. DURBIN: You know, when it gets down to what the law requires, the law sets some standards, but basically I think every American family wants to make sure that FDA takes the time necessary that they won't turn a drug loose or a medical device loose until it's proven that it's not only safe but effective as well, and those are absolutely essential criteria for doctors and consumers across America to understand.

REP. BARTON: Margaret, we had a hearing last year in the Energy & Commerce Committee when Dr. Kessler came and asked for specific legislation to give him more money, more authorized personnel to try to get some of these backlogs down, and we asked him at that time if we wanted to change the law, were these time requirements too strict, and he said, no, given the adequate number of people and adequate dollars, he could meet the statutory requirements. We've given him more people. He's got almost a billion dollars, ten thousand people, and yet, the backlog is down, but, but the time it takes is not necessarily down. On the most complicated devices where you have to really go in and investigate, it takes almost three years now, three years, the law says a hundred and eighty, a hundred and eighty days.

MS. WARNER: Give us a complicated device.

REP. BARTON: Well, I'll give you an example. It's not all that complicated. There's a device that checks for the glucose level in diabetics that are insulin-dependent, it was submitted for approval last year. The law requires nine to a hundred and eighty days. It took 'em seven months before the FDA even acknowledged that the device had been submitted for approval. It's now over a year later. We've still yet to hear from the FDA. This is the device that's in use in other countries. It's a non-invasive where it does a little infrared check of a diabetic patient so you don't have to prick them and take the blood out to check for their blood sugar level. That could only take, at most, a hundred and eighty days. It's taken so far over a year, and there's nowhere near getting it approved.

MS. WARNER: Congressman Durbin.

REP. DURBIN: If I could respond to that for a moment. That was brought up today during the course of the hearing, and the testimony from FDA said it not only has to measure the glucose, it has to measure it accurately. If it does not measure it accurately, the patient's insulin level might not be where it should be, it could endanger the patient's life. Now, what is more important, that we hurry these things through and get them on the market, so someone can make a lot of money, or that we make sure before they're released to the American public that they're not only safe but also effective? That's an important responsibility.

REP. BARTON: If I could respond to that, they're setting a higher standard of accuracy on this device than they do for the current test where you actually have to prick the finger and pull the blood. They want a higher than 95 percent accuracy, and the current test doesn't have to meet that standard of accuracy, and, again, it took seven months before they even got around to acknowledging that they, they had had the application, the PMA, for review. That's, that's not right, and again, we're not trying to short-circuit the, the actual efficiency, the actual accuracy of the review at the FDA, but we're simply saying we've given the money, we've given them the people, it's time now for them to change the attitudes in the administration and begin to really review these things in an expedient fashion.

MS. WARNER: Congressman Barton, let me just try to clarify one thing here, because earlier you did say -- you pointed out that a certain -- this certain device was approved in other countries. Do you think that the fact that the FDA standards are strictest in the world is a good thing, or do you think the standards should be relaxed and that should be more like European standards?

REP. BARTON: It depends on the classification for it. Things that are going to go inside the body and they're life threatening potentially we're not asking that the standards be reduced, but for tongue depressors, that have already been approved, it doesn't take a rocket scientist if somebody submits one of those. We think those can be self-certified or maybe be peer-reviewed by the National Institutes of Health or some of the scientific groups out in the country, so --

MS. WARNER: Congressman Durbin, do you agree with that, that there could be a distinction made?

REP. DURBIN: Well, of course, the problem isn't a tongue depressor. For goodness sakes, those sorts of things are approved very quickly. But you ought to take a trip to a foreign country. Go down to Mexico and go into a drugstore and see how many things they're trying to sell to people in Mexico that they claim cure cancer. You know, folks can make all sorts of claims in foreign countries with different standards than the United States. But we do have the highest standards, and we have the most, I think, prosperous pharmaceutical companies in the world. We want to make sure that when it comes to the shelf, when the doctor prescribes it, it works, and if it takes a little extra for that to happen, I think that's a good investment for America's future. You know, I've got here a product, incidentally, which I'd like to show you. This was a product the FDA confiscated, and it's something called "Nature's Response" from Las Vegas, Nevada. The claims being made here, incidentally, are that this destroys the HIV virus in-vitro. This is a kind of the misleading advertising and the phoniness that the FDA has to be vigilant and protect consumers against. And this sort of thing gets on the nerves of people making these because they want to make a lot more money. The bottom line is consumers in America should be confident when they buy a drug, when they use a medical device, that it's safe and effective.

MS. WARNER: Congressman Barton.

REP. BARTON: Well, again, I mean, I agree with Congressman Durbin that that particular thing is a travesty. But when you have the director of orthopedics at the Scottish Rite Charity Hospital in Texas who can't get certain little metal screws approved, that they're approved if you clip them to one of the bones in the back bone, but they're not approved if you try to attach them in another way, and, again, the fact that the FDA is taking longer and longer doesn't mean they're doing a better job. Again, when we asked Dr. Kessler on the record if he felt he needed more time, he said, no, he did not need more time, he needed more people and more money. We have given that. Now what we are asking is that he actually use those resources in a more effective fashion. And I think Congressman Durbin agrees with that. We're not trying to short-circuit health. But we are saying, use the resources, and if some of these things are overreaching because of an attitude in the FDA that's antagonistic to American industry, let's change that attitude.

MS. WARNER: Yeah. Congressman Durbin, do you think there's anything to this criticism that -- I think another Congressman made the point today at the hearing -- that there's a sort of antagonism or hostility or a "can't do" attitude on the part of the bureaucrats, the FDA, towards these companies.

REP. DURBIN: I wish you could have been in the hallway outside the hearing before it took place. It was the biggest turnout I've ever seen at that hearing for the Food & Drug Administration today. A lot of people who traditionally came and followedthe agency were there, but there were also a lot of people there representing special interest groups that could make a fortune, a fortune, with an approval from the Food & Drug Administration. They want the time that the Food & Drug Administration spends in reviewing this reduced. They want the standards lowered. They want everything approved. They want their own product approved, but the Food & Drug Administration has a responsibility not to the profit makers but to the consumers. And it can't be pushing through changes and basic principles that could endanger lives. Now, I think the Food & Drug Administration could be improved, and it has been improved. I think there are ways to do even a better job out there. But this idea of privatizing and getting away from regulation really overlooks the massive responsibility this agency has. It's more than food. It's more than medicine. It's the nation's blood supply. It's the safety and efficacy of mammography clinics and laboratories across the United States. Mr. Barton says they have got plenty of money, they should be able to do the job. Frankly, they are swamped with the responsibilities that we've given 'em, and I want to make sure they do the job right.

MS. WARNER: Mr. Barton, let's turn to solutions, because these hearings are going to be continuing. What do you think it would take legislatively to correct what you see as the flaw?

REP. BARTON: Well, first I think that I would agree with President Clinton who several weeks ago said that there are some problems at the FDA, and he said that his task force is going to change the certification requirements for about 130 different products so that they are certified. We're going to do the hearings to find out what the problems are and what some possible solutions are. One possible solution is to sub some of this out to independent peer reviews that are professionals in the field, let them take a look at it. Another thing is on the class one items that are not --

MS. WARNER: Explain that.

REP. BARTON: A class one item is a bandaid, a tongue depressor, something that's been certified before, has been in use before. It's not bodily invasive. Many of those, companies can sell certified, they can bond the accuracy of the form that they send in, and I think these are the kind of solutions that we're going to look at. We are not going to change the, the life standards that Congressman Durbin perhaps is afraid we are, but, again, when the FDA, themselves, in sworn testimony state that it's not a question of changing a law, it's just a question of giving them more assets and more resources, then we believe that it's fair to say let's change the procedural practice, let's change the attitude, let's try to do what we all want, which is ensure that the medical devices and the drugs that are certified by the FDA to be safe in this country truly are safe but they can get to the marketplace as soon as possible, so people can take advantage of them.

MS. WARNER: Congressman Durbin, what do you think about this idea of subbing some of this out, as the Congressman just suggested, and having some independent peer review panels?

REP. DURBIN: I'm not opposed to looking at that, and I think we should explore. In fact, in the European Economic Community that's being done, and I understand from some of the companies here in the United States that are starting to do business there that it can be done effectively, but we've really got to be careful; that we cannot compromise the integrity of this agency. We've got to make sure that the people, the barbarians at the gate who want to make the millions of dollars of profits that are inherent to some of these medical technologies and drugs don't take over the process, because the ultimate loser is the American consumer. The family that takes it for granted that when a drug is prescribed, it's the right drug, it's safe and effective, the medical device that's being used at the hospital is a safe one. I went up to Boston recently and took a look at an FDA -- I guess it was a few years ago now -- investigation -- heart catheters, little tubes passed through your veins to your heart, that were breaking off inside the body. The FDA was on top of that. The FDA made sure that that company basically was put out of business because of the tragedies that resulted. If we compromise the integrity of FDA, we run the risk of people going to hospital each day, can't be sure of the outcome, can't be really certain that that medical technology being used is safe and effective.

MS. WARNER: Congressman Barton, Speaker Gingrich suggested in a recent speech, at least according to an LA Times article, that, in fact, FDA might be totally privatized and that could be done totally outside the agency. Now is this something you would look at?

REP. BARTON: That's something that we'll look at, Margaret, but there are some things, and I agree with Congressman Durbin, there are some things that only the federal government can do. And I think there will be a federal regulatory role. We can privatize some of the activities of the agency but not its total mission. And, again, I want to reiterate all we want is for the FDA to act effectively and in a time-sensitive fashion, and when there is a better way to do something, let's do it, and I'd also point out that you have many medical boards in this country, many professional societies of medicine that are still going to be there, and the state boards, they can regulate the practice of medicine and the way some of these devices and drugs are used, so it's not just the FDA. There are many other players in there that are also going to guarantee the public safety.

MS. WARNER: Congressman Durbin, from what we've heard, do you think some accommodation can be found here?

REP. DURBIN: I think there can be some accommodation. I'm not opposed to privatizing part of it. I was with Congressman Barton until the tail end when he started talking about state agencies that were going to take over these responsibilities. That's -- let me tell you, there's nothing like the FDA at the state level, nothing even close to it. And if we are going to devolve, which is the word of art, I guess, with the Gingrich Republicans now, and to give these responsibilities to state and local government, let me tell you, American consumers better get in on this debate.

REP. BARTON: I don't want to interrupt, Congressman Durbin. What I'm talking about there are the state medical boards that actually regulate the practice of medicine, how some of the surgical procedures are performed, some things like that. Those boards have been there, and it's historically been a decision of the medical practitioning boards on how to use some of these devices. That's what I'm talking about. The FDA has tended in the last several years to try to get in and actually tell doctors and surgeons how to practice their profession, and I believe that may be one case where they've overreached.

MS. WARNER: Well, gentlemen, I'm afraid that's all the time we have. Thanks very much. RECAP

MR. LEHRER: Again, the major stories of this Tuesday, the House began debating a constitutional amendment limiting terms for members of Congress and the Clinton administration proposed an oil embargo on Libya to force the surrender of suspects in the bombing of Pan Am Flight 103. Good night, Robin.

MR. MAC NEIL: Good night, Jim. That's the NewsHour for tonight, and we'll see you again tomorrow night. I'm Robert MacNeil. Good night.