[Congressional Record Volume 141, Number 48 (Wednesday, March 15, 1995)]
[Senate]
[Pages S3909-S3918]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       EMERGENCY SUPPLEMENTAL APPROPRIATIONS AND RESCISSIONS ACT

  The PRESIDENT pro tempore. Under the previous order, the Senate will 
now resume consideration of H.R. 889, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (H.R. 889) making emergency supplemental 
     appropriations and rescissions to preserve and enhance the 
     military readiness of the Department of Defense for the 
     fiscal year ending September 30, 1995, and for other 
     purposes.

  The Senate resumed consideration of the bill.

       Pending:
       Bumpers amendment No. 330, to restrict the obligation or 
     expenditure of funds on the NASA/Russian Cooperative MIR 
     Program.
       Kassebaum amendment No. 331 (to committee amendment 
     beginning on page 1, line 3), to limit funding of an 
     Executive order that would prohibit Federal contractors from 
     hiring permanent replacements for striking workers.

  The PRESIDENT pro tempore. There will now be 1 hour for debate on the 
Kassebaum amendment No. 331, to be equally divided between the Senator 
from Kansas [Mrs. Kassebaum] and the Senator from Massachusetts [Mr. 
Kennedy].
  The distinguished Senator from Kansas, Senator Kassebaum.
  Mrs. KASSEBAUM. Mr. President, I yield 5 minutes to the Senator from 
Georgia [Mr. Coverdell].
  The PRESIDENT pro tempore. The distinguished Senator from Georgia is 
recognized.


                           Amendment No. 331

  Mr. COVERDELL. Mr. President, I thank my colleague, the Senator from 
Kansas. I rise in support of her amendment.
  I had an opportunity to speak to this issue just yesterday to several 
assembled journalists. I said one of the striking features about the 
issue that is before us is how it reminds us of a rather growing 
pattern of this administration to circumvent the legislative branch. If 
you think on it, this issue, which is very controversial, has been 
argued before this Senate repeatedly and the provision that the 
President is trying to put in place has been rejected here. It has not 
found acceptance in the people's branch of our Government. So now we 
find the President trying to accomplish by Executive fiat what the 
people's branch of Government would not do.
  It reminds me of Somalia, of Haiti, of Mexico, and now striker 
replacement.
  Time and time again we see the administration coming for acceptance 
to the legislative branch, the people's branch, for the impact and 
reflection of what the American people are arguing or are wishing for. 
And when that cannot be accomplished, he will just bypass it, 
circumvent it. I do not think this is going to set very well with the 
American people as they begin to focus on a pattern of moving around 
their interests.
  I am always taken aback, still. I have been here going into the third 
year. I still am perplexed by a city that seems to feel that it and it 
alone can establish the relationships in the free marketplace of this 
great country. And every time they do it, every time they meddle, 
invariably the reaction is disruption in the marketplace and the very 
thing the sound bites suggest we are trying to do, to help workers, as 
a result is not what happens.
  If you destabilize the playing field that has existed between labor 
and management for the last 50 years, if management has no recourse in 
terms 
 [[Page S3910]] of hiring a replacement worker if an extended strike 
takes place, then invariably you are going to have increased consumer 
costs, you are going to have business decisions to avoid this 
complexity, you will have businesses that decide this is not the place 
to build their business. And every time we add to the burden of 
management and how they build businesses, we make it harder and harder 
for people to work in their businesses. That is the outcome of this 
kind of interference in the workplace: less jobs, not more jobs--less 
jobs, not more protected jobs.
  It has to be remembered, you cannot replace a striker today if it is 
a health-related issue or an environment-related issue. You can if 
there is an argument about wages that cannot be resolved. Only 3 
percent of the work force in all these strikes have ever been replaced 
in this country.
  Management does not want a strike. Management does not want to 
replace a worker. It is expensive, costly, time consuming, 
destabilizing.
  I can see my time is about up, Mr. President. I support the amendment 
of the Senator from Kansas. I feel we are intervening in the free 
marketplace and it will be destabilizing to the work force of our 
country.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER (Mr. Inhofe). The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I yield 8 minutes to the Senator from 
Minnesota.
  The PRESIDING OFFICER. The Senator from Minnesota is recognized.
  Mr. WELLSTONE. Mr. President, first of all, just so colleagues are 
clear before they cast this vote after listening to my colleague from 
Georgia--the Executive order does not resemble Somalia. It represents a 
lawful exercise of Presidential authority. The Federal Procurement Act, 
which was enacted by Congress in 1949, expressly authorizes the 
President to proscribe such policies and directives not consistent with 
the directives of this act as he shall deem necessary to effectuate the 
decisions of such act. And from Roosevelt to Johnson to Nixon to Carter 
to President Bush, we have seen such orders issued.
  So let us just be clear as to what is at issue. Second of all, Mr. 
President, we are, of course, not talking about S. 55, which was on the 
floor last session. But again, for the record, for the people in the 
country, that piece of legislation which prohibited employers from 
permanently replacing striking workers was filibustered. It was 
blocked. So it did not pass.
  This is an Executive order by the President which applies to 
situations where the Federal Government has a contract with an employer 
for over $100,000 worth of business and that employer permanently 
replaces workers. This does not cover workers who were temporary 
replacement workers. We are talking about permanent replacement. That 
is all we are focusing on. It is really a very simple proposition that 
we are voting on here today.
  I say to my colleagues, who take another position on this issue, that 
I wish their characterization of labor-management relations had some 
relationship to reality because, if it did, I would be taking a 
different position in this debate. But the General Accounting Office 
reports that since 1985, employers have hired permanent replacements in 
one out of every six strikes and threatened to hire replacements in one 
out of every three.
  Mr. President, I just simply have to tell you that all too often, 
what happens is either employers require major and unreasonable 
concessions of the union, then force people out to strike, then replace 
them with workers unsympathetic to the union, and then move to 
decertify the union. That is called union busting. And, in many ways, 
that is the issue that is before us because either that happens or, 
because the United States happens to be the only country among the 
advanced economic countries in the world that enables employers to 
carry out this practice, many other wage earners just simply are forced 
to live with outrageous concessions that are asked of them with 
sometimes very deplorable working conditions in terms of health and 
safety, much less wages, because they know, if they do anything about 
it, they will be permanently replaced.
  Mr. President, the issue here is which side is the Government on? In 
the debate last week, while I was on the floor, I happened to remember 
Florence Reese, from Appalachia--which is my wife Sheila's home, in 
Kentucky--and her famous song, ``Which Side Are You On?''
  What the President's Executive order essentially says is, while many 
of us feel so strongly about this, if the Government is doing business 
with a company where the labor-management dispute causes the permanent 
replacement of striking workers, we ought not to use taxpayers' money 
to subsidize that kind of management practice.
  Which side is the Government on? Are we on the side of union busting? 
Are we on the side of depressing wages? Are we on the side of forcing 
people out on strike and then permanently replacing them? Are we on the 
side of unsafe working conditions? Or are we on the side of working 
people, wage earners, and their having some leverage and ability to 
bargain for themselves and, yes, if necessary, to go out on strike--
though no one likes to go out on strike--so that they are just not 
crushed?
  Mr. President, that is the issue. Should the Government use 
taxpayers' money to support companies which permanently replace their 
workers in the labor-management dispute? It is that simple. That is the 
issue before us. That is why so many of us have taken such strong 
stands.
  Finally, Mr. President, I know my colleague from Massachusetts, 
Senator Kennedy, has been eloquent, powerful on the floor, on this 
issue. I think right now, in the 104th Congress, that so much of the 
debate and so much of the agenda is too abstract. There are no faces. 
There are no people.
  Now, we look at these decisions on the House side. And we are talking 
about in Minnesota the Low-Income Energy Assistance Program. Let me 
tell you that in a cold-weather State like Minnesota--and I imagine 
Massachusetts--this is cruel for the elderly poor, for children, to 
just cut that out; and going after the Summer Jobs Program. We have had 
the debate here on school lunches, school breakfasts, and child 
nutrition programs. But are we going to do more for loopholes, 
deductions, and more by way of capital gains tax for large corporations 
and wealthy people? People--we cut one place. And those people have the 
least amount of clout, those most vulnerable citizens, and then we skew 
it to the very top of the population.
  That is why this debate on the Kassebaum amendment has a 
significance. It has to do with the heart and soul of this 104th 
Congress. It has to do with where we stand. It has to do with who we 
represent or who we do not represent.
  I can just say to my colleagues that I have seen all too often--I 
said this before on the floor of the Senate--people forced out on 
strike. I have seen people permanently replaced. I have seen the 
devastation of families. I have seen the devastation in communities. We 
had testimony in the Labor and Human Resources Committee from 
ministers, from business people, and others who talked about the 
divisiveness of all of this.
  Mr. President, I come to the floor because I feel a real commitment 
to people whom I represent. To me, one that stands out in my mind more 
than any other is C.F. Industries, where workers were forced out on 
strike who did not want to go out on strike. I do not think they would 
mind my saying that they had a real sense of trepidation. They did not 
want to go out on strike. They were worried what was going to happen to 
them. But the company's offer was something they could not accept. The 
concessions that were asked of them went sort of directly to their 
sense of dignity about themselves. So there they were, outside on a 
Sunday morning. I went out there with the president of the AFL-CIO in 
the pouring rain. Their children were there. People who had essentially 
been permanently replaced were devastated. I do not think that should 
be a part of what the United States of America is about.
  This amendment which deals with this Executive order by the President 
just deals with an Executive order that is a significant step in the 
right direction.
  Mr. President, I urge my colleagues to vote against this amendment. 
I 
 [[Page S3911]] think, as much as I respect my colleague from Kansas, 
this amendment is profoundly wrong in its impact on working people and 
families. I think it is profoundly wrong in terms of the message that 
it stands for as to what we are about. I think the Government ought to 
be on the side of regular people, ought to be on the side of wage 
earners, and ought to be on the side of working families. I think that 
is really the large significance of this vote.
  I yield the floor.
  Mrs. KASSEBAUM. Mr. President, I yield 5 minutes to the Senator from 
Texas [Mr. Gramm].
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. GRAMM. Mr. President, we should invoke cloture. We should pass 
this amendment, and we should stop the President's effort to use 
Executive power to do what he could not do in Congress and what, I 
believe, is clearly within the jurisdiction of the legislative branch 
of Government.
  What we are debating today is nothing more than special interest 
politics undertaken by the President to reward a special interest 
group--organized labor in America. The President is giving them 
something that is not in the public interest through Executive order 
since he was unable in the last Congress to get a very similar 
provision adopted into law.
  Let me review very briefly what the issue is. Under current law, if I 
do not want to work for you, I have the right to quit. If I feel that 
your pay or your working conditions are unfair, I have the right not 
only to quit, but to join with other workers to withhold our labor.
  That is my fundamental right as a free American. That is a right 
that, so far as I know, is supported by every single Member of the U.S. 
Senate. But the employer, who has put up capital and who has made an 
investment, also has rights. Those rights basically are that if I 
refuse to work for you, or if I join other employees in denying my 
labor, you have a right to hire someone else.
  I, as a worker, understand that I have my rights and you have your 
rights. Under the balanced system, which is the law of the land, we 
have not had any major labor unrest since the short period immediately 
after World War II. That is because every worker knows what his or her 
rights are, and every worker understands the employer's rights. With 
that balance of relative power in the marketplace, we have had 
negotiations, we have had settlements, we have had progress, and we 
have had labor stability. As a result, we have experienced economic 
growth and prosperity.
  What is being proposed now is not really a labor issue, it is a 
freedom issue. Basically, what the President has tried to do by 
Executive order is that which we had previously rejected; that is, to 
tell employers that if an employee quits or, in conjunction with other 
employees, withholds his or her labor, you do not have the right to 
hire someone else permanently to replace that worker. That is a 
violation of the rights of Americans who have put up their capital and 
who have made investments.
  In my opinion, this is a freedom issue. And if you believe in 
freedom, you ought to be for this amendment.
  So there are three issues. First, the President has tried, by 
Executive order, to do what he could not do through the legislative 
process. We ought to stop him because it is a violation of the implicit 
principle of separation of powers.
  Second, the President is trying fundamentally to change labor law in 
a way that is not only unfair but in a way that will clearly result in 
more labor unrest. As a result, we will have more strikes than we have 
had in the last quarter century.
  Finally, we ought to stop the President's special interest power 
grab, because this is a freedom issue. If someone proposed on the floor 
of the Senate that we stop workers from exercising their legitimate 
right to withhold their labor, I believe that every Member of the 
Senate would rise to his or her feet and denounce that effort. How can 
it be right to denounce that abridgment of freedom and yet not denounce 
the abridgment of freedom that results from telling an employer, who 
saved and worked and put up his capital, that he cannot hire someone to 
take the place of a worker who voluntarily refuses to work? I think 
that is the issue.
  I hope my colleagues will vote for cloture and vote for this 
amendment.
  Mr. HEFLIN. Mr. President, with regards to the Kassebaum amendment 
concerning striker replacement issues and the Executive order to which 
it pertains, I oppose the amendment. When this issue has arisen in the 
past I have supported substantial modifications to the striker 
replacement bill, including mandatory arbitration. These modifications 
would have substantially reduced strikes. Given my reservations, I have 
spent a good deal of time studying the Executive order. It is important 
to note that the provisions established by this order are much narrower 
in scope than striker replacement proposals made in the past and very 
limited in the number of businesses that would be affected.
  From the outset and before I go any further, let me point out that 
the Kassebaum amendment violates the rules of the Senate which prohibit 
legislating on an appropriations bill. The procedure in the Senate is 
to pass legislative authorization or prohibition legislation and to 
deal with the matter of appropriations separately. The Kassebaum 
amendment clearly violates these rules.
  Next, the underlying issue before the Senate is a supplemental 
defense appropriations bill. I do not think that bill ought to be 
jeopardized by a non-germane issue that can be brought up through the 
regular legislative process.
  In reference to the Executive order, there are two points that I 
think should be made. The first is that the order in question does not 
require that Federal contractors who permanently replace workers be 
barred from holding contracts with the Federal Government. The order 
only gives the Secretary of Labor permission to consider terminating 
contracts with companies who permanently fire lawfully striking 
employees. Even if the Secretary does decide to terminate the 
contractor on this basis, it takes only an objection from the head of 
the involved Government agency to have the contract reinstated.
  There is also the issue of cost to the Government and ultimately to 
the taxpayers. We should realize that it is expensive for companies to 
hire replacement workers. For a business to change employees quickly 
costs a great deal of money. Considering how often we have seen some 
companies overcharge the Government in the past, it is completely 
reasonable to expect that the costs of hiring these replacement workers 
will be passed on to the Government and ultimately the taxpayers.
  Mr. MOYNIHAN. Mr. President, the fundamental right of American 
workers to strike was guaranteed over a half century ago with the 
enactment of the National Labor Relations Act of 1935. Section 13 of 
the NLRA states:

       Nothing in this act, except as specifically provided 
     herein, shall be construed so as to either interfere with, or 
     impede, or in any way diminish the right to strike, or to 
     affect the limitations or qualifications on that right.

  As a former Assistant of Labor under Presidents Kennedy and Johnson, 
I am disappointed that we find ourselves having to debate this issue at 
all. The amendment of the Senator from Kansas would prohibit the use of 
appropriated funds for implementation of President Clinton's Executive 
Order 12954, which provides simply that the Federal Government will not 
do business with contractors that hire permanent replacement workers.
  Yet the hiring of permanent replacement workers directly contravenes 
the right to strike. A worker does not have any meaningful right to 
withhold his or her labor if his or her employer hires a permanent 
replacement worker.
  The President issued a lawful Executive order on March 8. The legal 
authority for this order has been fully documented in a careful 
memorandum of law written by Assistant Attorney General Walter 
Dellinger. The memorandum has already been discussed on the floor 
during this debate, and was made part of the Record by the Senator from 
Massachusetts.
  We ought not be in the business of gutting this Executive order 
through an amendment to an appropriations 
 [[Page S3912]] bill. It is regrettable that this amendment has not 
been withdrawn. Its proponents failed to invoke cloture earlier today, 
and it is time we move on.
  The opponents of the amendment have no desire to prolong debate on 
the DOD supplemental appropriations bill. We would prefer that the 
amendment be withdrawn so that the Senate can complete its work on the 
underlying legislation.
  But it should be remembered that the antistriker replacement 
legislation, of which I have been a cosponsor since 1990, was 
repeatedly the subject of filibusters by our colleagues on the other 
side of the aisle. S. 55, the Metzenbaum antistriker replacement bill 
in the 103d Congress, got 53 votes for cloture last year. The Senate 
would have passed the bill last year had an up or down vote been 
permitted.
  Fortunately, we still have Members in this Senate who can be counted 
on to fight for the rights of the American worker. The ranking member 
of the Labor and Human Resources Committee, Senator Kennedy, deserves 
thanks and congratulations for his outstanding leadership on this 
issue. He has been on the floor for many hours, making his argument 
eloquently and forcefully--as only the Senator from Massachusetts can. 
I join him in opposing the amendment of the Senator from Kansas.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER (Mr. Coverdell). The Senator from Massachusetts 
is recognized.
  Mr. KENNEDY. Mr. President, I yield myself 7 minutes.
  Mr. President, many of us here in the U.S. Senate that are opposed to 
the amendment of the Senator from Kansas believe that we ought to be 
working on the defense appropriations bill rather than on this 
amendment. I think it is important to understand who is really delaying 
the U.S. Senate from taking action.
  Many of us who are opposed to this amendment feel that the national 
interest and national security would be served by moving forward on the 
defense appropriations bill. But our Republican colleagues do not 
apparently share that view and that is why we are where we are today.
  Last week, the President issued an Executive order barring the award 
of Federal contracts to companies that permanently replace striking 
workers. The ink was not even dry on the Executive order and the effort 
was made here in the U.S. Senate to block the Executive order. And that 
is why we are where we are today, instead of completing action on the 
defense appropriations bill. Those of us on this side of the aisle are 
prepared, even though we are required to go through a cloture motion, 
to go on to the underlying measure and see that it is acted on and 
acted on expeditiously.
  I was interested a moment ago when my colleague from Texas said that 
what the amendment we are debating is about is the issue of freedom. I 
thought we disposed of that argument during the debate last week with 
the very profound and eloquent words of our friend and colleague from 
West Virginia, who talking about what real life is all about for 
working people--not the technicalities of Presidential power to issue 
Executive orders, but what real workers were facing at an important 
time in history, in terms of the mines of West Virginia.
  I can still remember those words he recalled being told to the 
miners: ``Clean up your place or you are going to lose your job.'' 
Sure, you had freedom not to have that job. You also had freedom not to 
feed your child; you had freedom not to pay your mortgage; you had 
freedom not to live in a home. You had that freedom because if you did 
not clean up your place at the end of a hard day's work, you had 
somebody else that was prepared to fill in. That is what we are talking 
about here. We are talking about the real experiences of working 
people.
  I want to take a couple of minutes of the time of the Senate to talk 
about who we are protecting here today--the people who my colleague 
from Texas described as special interests. These are the kind of people 
that we on this side of the aisle are interested in protecting and that 
I am glad to stand with.
  We are protecting Joyce Moore, who is married with three children. 
She worked at a laundry and also as a nurse's aide in a nursing home in 
Cincinnati, OH, for 13 years and was forced out on strike and 
subsequently permanently replaced. She was making $6.77 an hour. As she 
said,

       It ain't about money; basically, it is about respect. There 
     is a lack of respect in there. I hate that we are all on 
     strike because I enjoy getting up every morning and going to 
     my job. I enjoy being around the residents, taking care of 
     them. But we want a 3-year contract and a better health plan 
     and a pension plan. Folks get sick and they need a health 
     plan. When you have been there as long as I have, you deserve 
     a pension plan.

  But when Joyce Moore went on strike to get that respect, she was 
permanently replaced. That special interest was making $6.77 an hour. 
We are interested in protecting her from being permanently replaced, so 
that she can provide for a family.
  Jenette Hillman, 52 years old, worked at the nursing home as a 
rehabilitation aide for 25 years, and was making $7.25 an hour before 
she was forced out on strike February 22 and permanently replaced 3 
weeks later. She raised six sons. Now she is surviving only because one 
of those sons has moved back in with the family.
  Bernadette Marion, making $5.30 an hour as a nursing assistant, 
barely enough to take care of her four daughters, after being out on 
strike--she was permanently replaced and is living on a dwindling 
savings and a tax refund check.
  These are the real people that are being affected the unfair employer 
tactic of permanently replacing workers who exercise their legal right 
to strike.
  Make no mistake about it, this is the opening skirmish in a larger 
battle that is now unfolding in the Congress over the rights of working 
men and women across the country. What is at stake in this battle is 
nothing less than the standard of living for working families.
  Our Republican friends aim their opening salvo at a measure that is 
about simple justice for American workers. Under our national labor 
laws, it is illegal to fire a worker for exercising the right to 
strike. But because of a court-created loophole--not a legislatively 
created loophole; the loophole was not enacted by the Congress of the 
United States; it was a footnote on a court decision--because of the 
court-created loophole, workers who strike can be permanently replaced, 
which amounts to the same thing.
  President Clinton was right to act to close that unfair loophole. And 
I am proud to stand with him in defense of that action.
  Working families, Mr. President, are hurting. They have suffered a 
20-year decline in real wages. Hourly pay is falling compared to other 
countries. The gap between the top 10 percent of wage earners and 
bottom 10 percent is wider in our country than in any other industrial 
nation. Yet, the new Republican majority, through this amendment and 
numerous other measures that are working their way through Congress, 
are advancing an agenda that is, in effect, an assault on working 
families. This attempt to block the Executive order on striker 
replacement is just one example of how this assault is being carried 
out, but it is an important one. So I want to take a few moments to 
talk about that this morning.
  It is not just accidental, Mr. President, that what we have seen over 
the period of the past weeks--and it was illustrated in the excellent 
article in the Washington Post today by Mr. Obey--is an attack on the 
legitimate interests and rights of working men and women to be able to 
protect their wages and to try and advance the interests of themselves 
and their families.
  We have the actions which are being taken by the House of 
Representatives to basically undermine the School Lunch Program where 
working families' children go to school, to undermine the college 
assistance programs and loan programs by which working families are 
able to have their children go to the fine colleges and universities 
that exist in all of our States. Sixty-seven percent of the young 
people in my State of Massachusetts need some kind of help and 
assistance to go on to college. But what is the Republican leadership 
in the House of Representatives saying? We are to cut student aid 
programs and make hard-working families spend more to finance the cost 
of a college education.
   [[Page S3913]] It is an assault on the children who are going to the 
high schools, it is an assault on the teenagers who are trying to go to 
college, and it is a continued assault----
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. KENNEDY. I yield myself 3 more minutes.
  It is a continued assault by those who refuse to give a living wage 
to people who are trying to work.
  That is what this is about. You can talk about the scope of 
Presidential power to issue this Executive order-- and we have put into 
the Record the Justice Department's justification for it, which is well 
supported--and you can talk about whether the President is really right 
to do this as a matter of social policy.
  But I will tell you, those arguments would have a lot more 
credibility if those on the other side were prepared to say we are 
willing to support an increase in the minimum wage for workers in this 
country who are prepared to work 40 hours a week, 52 weeks a year. But, 
no, they say, we are opposed to that too. Come on. Come on, Mr. 
President. What is this battle all about? Come on. You have to be 
honest when you are talking to the American people. You have to be 
straightforward about what this is about.
  My Republican colleagues say you are wrong Senator, this is just an 
issue about whether the President had the proper legal authority to 
issue this Executive order. But at the same time they are saying,

       No, Senator, we are not for enacting an increase in the 
     minimum wage. No, no. You are quite right, we are for cutting 
     back on school lunch programs for kids that are going to high 
     school. Yes, we want to raise the cost of sending your 
     children to the college and university. But we are not really 
     assaulting working families. On, no, we are really for 
     working families. Why do you get so excited out here on the 
     floor of the U.S. Senate?

  And only yesterday, in the Ways and Means Committee, they give tax 
breaks to the wealthiest individuals and corporations in the country by 
voting to lower the capital gains tax and effectively eliminating the 
minimum tax on corporations.
  ``No,'' they say, ``it is just a coincidence that we are providing 
all these breaks and benefits to the rich at the same time we are 
making all these cuts in programs for working families.''
  Come on, Mr. President. This is the first major issue we have dealt 
with on the floor in the U.S. Senate this year that directly affects 
the working families of this country, and we are not going to be rolled 
over and stampeded on it. We are not going to be rolled over and 
stampeded on it.
  The President is right to do this. He is right to issue this 
Executive order, not just from a fairness point of view and a social 
compact point of view, he is right to do it in terms of his 
responsibility as the Chief Executive to ensure that we are going to 
get good quality products for the Defense Department, that we are going 
to make sure that those plane engines that are going into the F-15's, 
F-16's, and F-18's are good engines, made in my own State at General 
Electric by workers who have worked there for 25 and 30 years. We are 
not going to have to take the chance of having some replacement workers 
in there trying to fulfill a contract and not being able to produce a 
good, quality product. We are going to make sure that those runways 
that are being built are going to be good runways for those planes. We 
are going to ensure that the housing that is going to house our 
personnel in the military is going to be of good quality.
  I do not know what is the reason for this assault on all these people 
making barely above the minimum wage. If that isn't bad enough, the 
Republicans are saying ``We have other good news for you, Senator, in 
terms of those construction workers. We are going to take away the 
Davis-Bacon Act, that guarantees prevailing wages on federally funded 
construction projects.'' We are talking about men and women in the 
construction industry making an average of $27,000 a year--$27,000 a 
year. One of the first priorities of the Contract With America is to 
undermine their ability to make prevailing wages in one of the most 
dangerous occupations in this country, and that is construction work.
  The PRESIDING OFFICER. The Chair advises the Senator that his time 
has expired.
  Mr. KENNEDY. I yield myself 2 more minutes.
  And we are going to repeal the Davis-Bacon Act and diminish their 
ability to provide for their families.
  What is it about working families that Republicans have it in for 
them? Why is it that our Republican leadership in the House of 
Representatives and here today on the floor of the U.S. Senate, 
virtually in lockstep, wants to deprive them of some legitimate rights? 
What is it about these working families? What is it about their 
children? What is it about their children that we want to cut back in 
terms of Medicaid? What in the world have they done, except be the 
backbone of this country?
  Make no mistake about it, this is the first battle, Mr. President, 
and we are not going to let this stampede that may have gone over in 
the House of Representatives run roughshod here in the U.S. Senate.
  Mr. President, I withhold the remainder of my time.
  How much time do I have?
  The PRESIDING OFFICER. The Senator has 11 minutes.
  Mrs. KASSEBAUM addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mrs. KASSEBAUM. Mr. President, I yield 5 minutes to the Senator from 
Mississippi [Mr. Lott].
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. LOTT. Thank you, Mr. President. And I thank the Senator from 
Kansas for yielding me this time.
  I think it is time, maybe, we calmed down a little bit, stopped 
shouting, and talk about what is really involved here.
  This is not about----
  Mr. KENNEDY. Will the Senator yield?
  Mr. LOTT. I will not yield. I have been sitting here listening to the 
Senator, and I have a chance here now to correct the Record a little 
bit.
  This is not about the Contract With America. This is not about Davis-
Bacon. This is not about all the other extraneous matters we are 
talking about.
  What we are talking about here is an opportunity for the Senators to 
vote to stop the filibuster so that we can talk about the substance of 
the amendment of the Senator from Kansas, Senator Kassebaum. So I urge 
the Senators to vote to invoke cloture.
  Last Thursday, 57 Senators voted to stop President Clinton from 
unlawfully usurping congressional authority to regulate labor-
management relations. The week before that, the President issued an 
Executive order which sought to overturn congressional and judicial 
policies that have stood for nearly 60 years. In so doing, the 
President claimed authority to defy Congress and the Constitution by 
rewriting Federal labor laws. The vast majority of the Senate has 
rejected this unlawful exercise of power, and has affirmed that the 
Executive order is bad policy and bad law.
  Despite Thursday's vote, a handful of Senators from the other side of 
the aisle is filibustering this bill in an attempt to protect President 
Clinton's Executive order. The other side of the aisle has even 
objected to temporarily setting aside the Kassebaum amendment, so the 
Senate might proceed on other amendments to the defense supplemental 
appropriations bill.
  I point out that the defense supplemental appropriations bill, 
requested by the administration, has now been on the floor of the 
Senate for 5 days. And so the routine continues, Mr. President. We 
spent weeks on the balanced budget amendment. We spent weeks on the 
uncontroversial unfunded mandates bill. We spent several days on 
congressional coverage. Everything is to be dragged out in the Senate; 
everything is to be slowed down. Sooner or later, the Senate is going 
to have to face up to taking action on the legislation that is pending 
before it.
  And now a minority of Democratic Senators is so committed to giving 
away congressional authority to the President that they are willing to 
halt Senate action on an emergency bill the administration has 
requested the Senate to pass immediately.
  And what is this filibuster being used to do? Is it being used to 
defend the ability of Congress to regulate labor- 
 [[Page S3914]] management relations? No, that is not happening. Is it 
being used to implement a Supreme Court ruling? No, Mr. President, this 
filibuster is being undertaken to protect an Executive action that 
contravenes the will of both Congress and the Courts.
  President Clinton's Executive order would bar Federal contractors 
from hiring permanent replacements for striking workers. Under the 
order, the Secretary of Labor will determine whether ``an 
organizational unit of a Federal contractor'' has ``permanently 
replaced lawfully striking workers.'' He may then instruct Federal 
agencies to cancel existing contracts. The contractor can also be 
debarred from future contracts for the duration of the labor dispute. 
This Executive order, effective immediately, applies to companies with 
Federal contracts in excess of $100,000.
  This Executive order is seriously flawed on both policy and legal 
grounds, and it is a direct challenge to congressional authority.
  Several times, Congress has tried to act in this area without 
success. And so now, they have gone to the Executive order to get done 
what the Congress would not approve and get action in an area where the 
Supreme Court does not even agree with their action.
  This Executive order seeks to assert that as a matter of law, the 
hiring of permanent replacements adversely affects the Federal 
Government. Specifically, it states that the use of replacements 
lengthens strikes, broadens disputes, and shifts the balance in the 
collective bargaining relationship. As the lengthy debates in the House 
and Senate have shown, quite the contrary is true:
  The Executive order will result in more strikes, inflationary wage 
settlements and a shift in the balance of power in favor of unions.
  This was the conclusion of the Carter administration in 1977, when it 
rejected a limited ban on permanent replacements as part of labor law 
reform. Indeed, the Canadian Province of Quebec has experienced more 
strikes and longer strikes since it outlawed the use of any striker 
replacements--temporary or permanent.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. LOTT. Mr. President, I ask unanimous consent for an additional 
minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LOTT. The President has delegated to the Secretary of Labor the 
decision of how far this order really goes. That is one of the things 
that really worries me.
  This employer right is essential to maintaining balance in labor 
relations.
  The right has always been recognized as the necessary counterweight 
to the unrestrained right to strike guaranteed by this Nation's labor 
laws. Because the risks are high if either side engages in economic 
warfare against the other, neither side exercises its rights and powers 
except over major issues. The Executive order abolishes this 
congressionally and judicially crafted balance.


                          legal considerations

  The fact that many, many days have been devoted to the issue in 
recent years should leave no doubt that this is a legislative issue. 
Any Executive order that touches on this same issue is an infringement 
on the separation of powers. This order goes far beyond mere 
procurement policy and regulates private labor relations and restricts 
private rights guaranteed under the laws crafted by Congress.
  It is argued that other Presidents have regulated labor relations 
through Executive orders. None of those orders, however, amount to the 
usurpation of congressional authority as does this action of President 
Clinton. President Reagan's order firing the striking air traffic 
controllers was based upon his constitutional duty to enforce the law. 
President Bush's order requiring their Beck rights simply required that 
workers be informed of their rights under the law. Finally, the Bush 
Executive order barring union-only agreements on Federal construction 
projects was consistent with the procurement authority of the 
Government as consistent with the procurement authority of the 
Government as declared in the Supreme Court's Boston Harbor decision. 
It should be noted, however, that this Executive order was never 
challenged in court.
  Not merely the authority of the President is at issue. The Executive 
order raises numerous practical issues which would embroil the 
executive branch in legal quagmires for years. Consider the following:
  The President has delegated to the Secretary of Labor the decision of 
how far this order really goes.
  Robert Reich and his successors would decide whether ``an 
organizational unit of a Federal contractor'' has used permanent 
replacements. He is empowered in section 11 to define this term in 
regulations. At this point, we do not know whether the ban applies to 
employees working exclusively on Government projects, plants, or site-
wide, to all operations whether a division or subsidiary. This 
vagueness should render the order void on its face.
  The Department of Labor is unqualified to make determinations as to 
the legality of actions under the Federal labor statutes.
  That expertise is housed in the National Labor Relations Board and 
the National Mediation Board. Using the procurement power of the 
President, the Secretary is empowered to address such legal issues as 
what is a lawful strike and who are unit employees. The Labor 
Department has had absolutely no involvement until now in interpreting 
these laws.
  The order applies to all lawful work stoppages, whether or not a 
union is involved.
  Two or more nonunion workers are free to walk off the job, giving 
little or no reason except to say that they are protesting terms or 
conditions of employment. Under current law, nonunion protests of this 
nature are relatively infrequent because of the countervailing employer 
right to hire permanent replacements. Federal contractors which 
exercise their legal right to use replacements in the face of such 
extortionist tactics do so at their peril.


                               conclusion

  So, Mr. President, it is clear that President Clinton's Executive 
order is bad policy and bad law which usurps congressional power and 
contravenes our Nation's courts.
  In conclusion, I think that what we are really talking about here, 
Mr. President, is jobs, and what will happen if these strikes go on 
indefinitely and the companies do not have an opportunity to get 
replacement workers. What option will the company have if they cannot 
reach a negotiated agreement? What will happen is, they will wind up 
going out of business and the people will lose their jobs, and other 
people who would like to have those jobs would not have them either. We 
clearly should vote to invoke cloture and allow a full debate to occur 
on the Kassebaum amendment.
  Mr. KENNEDY. Mr. President, how much time remains?
  The PRESIDING OFFICER. Just over 11 minutes on your side.
  Mr. KENNEDY. Mr. President, I yield 6 minutes to the Senator from 
Iowa.
  Mr. HARKIN. I find the argument just made by the minority whip most 
intriguing. He is talking about a filibuster.
  Mr. President, something is wrong here. It was the Republican side, 
for the last two Congresses, that filibustered the striker replacement 
bill. What is going on here? Surely, the Senator from Mississippi 
understands that it was their side that filibustered in the last two 
Congresses the striker replacement bill. That legislation passed the 
House, came to the Senate, and it was the Republicans who filibustered 
the bill, not the Democrats. We are not filibustering this bill.
  We will have a vote on the underlying bill. For the last two 
Congresses, the Republicans would not permit the striker replacement 
bill to come up for a vote, and in both of those Congresses we had the 
majority votes to pass it. One Congress we had 57 votes; last year we 
had 53 votes. It was the Republicans who filibustered, not the 
Democrats. I want to set that record straight. The Senator from 
Mississippi is playing loose with the history of this bill. I see him 
smiling over there, and he knows exactly what I am talking about.
  Mr. President, another Senator from the other side, the Senator from 
Texas [Mr. Gramm] spoke on this issue. He equated workers exercising 
their legal right to strike to quitting. He says this issue is about 
people having a right to 
 [[Page S3915]] quit and employers having a right to hire people to 
replace them.
  The Senator from Texas apparently believes good labor-management 
relations consist of workers taking what they are given, and not 
complaining. If the workers' salary and benefits and paid holidays are 
cut, because that means investors could make a nickel more dividend, 
and if they then go out on strike, that company can consider those 
workers as having quit, and permanently replace them.
  But in reality, Mr. President, good labor-management relations means 
both sides are willing to talk. When we have a company like 
Bridgestone/Firestone, a wholly owned Japanese company operating in 
this country that refuses to sit down and negotiate in good faith with 
the workers, leaving them no other option but to go out on strike, then 
it cannot be the workers' fault. They are willing to negotiate.
  This issue shows some fundamental differences between Senators on 
each side of the aisle. First, to listen to the Senator from Texas [Mr. 
Gramm] and perhaps the Senator from Mississippi, they would just as 
soon see no unions. I think they would be happy to abolish unions if 
they could.
  Second, they really believe that if a person works for someone they 
have to take what they get, no questions asked. If you produce more, 
and you then ask for higher wages, an employer can dismiss you an any 
time--you can work 20 years, and if they want, they get rid of you and 
throw you out the door.
  I think that Senator Kennedy is right. What this is about is whether 
or not we will have decent management-worker relationships in this 
country, or whether we will take the path the Republicans want to take, 
and tell workers they do not count for anything, that a worker in this 
country is like a piece of machinery. Use them up, depreciate them 
down, and they throw them out the back door when they can get another 
worker cheaper.
  Mr. President, sometimes I wish that the Republican side would just 
quit messing around, and just go out and propose a law to ban strikes 
entirely? Better than that, they could ban negotiations, ban collective 
bargaining, because we really do not have collective bargaining any 
longer. The only thing that a worker can bring to the table in 
collective bargaining is his or her labor. And if they have no right to 
withhold that labor then the cards are stacked against them. Then only 
the employers have the power.
  So I wish the Republicans would just go ahead and offer a law, an 
amendment to ban strikes and to ban collective bargaining. It would be 
honest, anyway, on their part. It would not be this sham that we are 
operating under now: A right to strike today is only a right to be 
permanently replaced. A right to be permanently replaced means you have 
no power in collective bargaining, and thus collective bargaining in 
this country is indeed a sham.
  Every cutrate cutthroat employer knows they can break a union if they 
are willing to play hardball and ruin the lives of people who have made 
their company what it is. Unfortunately, the small minority of union 
busters drag down the rest of their industries in order to compete. 
Even responsible companies have to follow suit in the race to cut costs 
and salaries and cut workers' dignities.
  I mentioned Bridgestone/Firestone. Other tire companies in this 
country--Goodyear, Dunlop, and Uniroyal--reached agreements. They had 
negotiations. Some of them went out on strike, but then they 
negotiated. They reached an agreement. But this one company, 
Bridgestone/Firestone, refused to negotiate even after the workers had 
increased their productivity to all-time record highs, even after the 
workers agreed in the 1980's to take over $7 an hour in wage and 
benefit cuts, and yet when it came time for collective bargaining to 
renew the contract, the company said, ``Nope, you take what we offer or 
that is the end of it.''
  So, the workers went out on strike. Now, Bridgestone can win this, if 
they can bust the union and they hire permanent replacements. They have 
actually said it in letters, ``You are permanently replaced.''
  If they can do that, then that will drag down Goodyear because the 
board of directors will say, ``How can we let them undercut us? We have 
to compete.'' And so will Dunlop, and so will Uniroyal, and it drags 
down the whole industry.
  So what the Republicans are proposing to do with this amendment 
offered----
  The PRESIDING OFFICER. The Senator's time is expired.
  Mr. KENNEDY. Mr. President, I yield 1 minute.
  Mr. HARKIN. What they are proposing to do on the Republican side is 
to reward the worst companies: Those companies that will not negotiate 
in good faith and bargain with their workers; those companies that will 
drag down the other companies. That is the effect of their amendment.
  This amendment is counterproductive. We need more organized labor, 
not less, to compete in international markets. We are the most 
productive country in the world, and it is because we have had good 
labor-management relations working together, to increase productivity 
on the world market. Unions boosted productivity from 17 to 22 percent 
in construction, and a study of 20 manufacturing industries showed that 
unionized workers were from one-fifth to nearly one-quarter more 
productive than their nonunion counterparts.
  When I hear the statements coming from the other side of the aisle--
and what I hear is, ``Let's break down this labor-management relations 
we have had, let's break down collective bargaining''--the next thing I 
expect to hear is, ``Let's reintroduce child labor, if you want to 
compete with other countries that employ child labor.'' Well, why not?
  Workers have no more rights in this country. Workers have no rights 
to stick up for their dignity, to demand better wages, hours, and 
conditions of employment. I hope that the Senate will speak loudly and 
clearly. The President has acted correctly, and he acted within the 
confines of the law, in issuing that Executive order. We ought to 
uphold it for the good of America.
  Mrs. KASSEBAUM. Mr. President, I would like to yield 5 minutes to the 
Senator from Oklahoma.
  Mr. NICKLES. Mr. President, first I wish to compliment the Senator 
from Kansas for her amendment. I hope that my colleagues will vote with 
her on this amendment. I think it is important.
  I note at the conclusion of the statement of my friend from Iowa that 
the President acted within the confines of law. Let me just state the 
facts. President Clinton issued an Executive order because he could not 
pass a law. President Clinton introduces a bill, that has been 
introduced a couple of times--I guess both years since he has been 
President--trying to get it passed, but he has not been successful. He 
has tried but he did not get a bill to become law. And so the President 
is trying to do by Executive order what he could not do legislatively. 
Even in spite of the fact that he had a Democrat-controlled House and 
Senate, he was not successful because Congress did not agree.
  I think Congress is right in not agreeing. Now I am looking at the 
Executive order, and very clearly, if one reads this Executive order--
and I know it has been put into the Record; if it has not, I will ask 
unanimous consent to put it in the Record--but one needs to read this 
to find out this is law. This is an Executive order where the President 
is trying to legislate.
  I read in the Constitution--it is interesting, we have had a lot of 
discussion on the Constitution lately--but very clearly in article I, 
section 1, it says:

       All legislative Powers herein granted shall be vested in a 
     Congress of the United States, which shall consist of a 
     Senate and House of Representatives.

  We did not elect the President to be issuing Executive orders in 
defiance of Congress. Congress did not pass this bill. Congress did not 
pass it because we did not think it was right. I happen to agree within 
Congress' decision. I think this is a mistake.
  I look at the power that he has vested in the Secretary of Labor: The 
Secretary of Labor shall determine everything. The Secretary of Labor 
gets to determine the bargaining, he can object to a termination of a 
contract, he may debar the contractor. We are giving the Secretary of 
Labor the right to debar a contractor. Take, for example, 
 [[Page S3916]] the Senator from Georgia, or the Senator from Virginia, 
if you take a big contractor--maybe it is Newport News --building 
aircraft carriers, and maybe there is a small strike with a little 
union that is upset with one particular division which may affect less 
than 1 percent of their employees. But if there is a strike, is Newport 
News and their owner, I guess Tenneco, debarred from all Federal 
contracts? I asked that question before, and really that is to be 
determined by the Secretary of Labor.
  This Executive order is written with a blank check: ``The meaning of 
the term organizational unit of the Federal contractors shall be 
defined in regulations that shall be issued by the Secretary of 
Labor.'' My point being, this is terrible legislation, and the 
President does not have a right to legislate. He does not have the 
right. He is exceeding his powers. I am confident that if we do not 
succeed on the Kassebaum----
  Mr. HARKIN. Will the Senator yield?
  Mr. NICKLES. No. Let me finish my statement. I have limited time.
  The President exceeded his power. I will state I am very confident 
that, if we are not successful with this amendment, it will be tested 
in court and this Executive order will be thrown out on constitutional 
grounds. I am very confident of that fact. But we should stop it now. 
The President is playing politics. He is trying to appease a special 
interest group. I think it is unfortunate.
  What about the substance of it? I heard my colleague make the 
statement, ``Well, the people who are pushing this amendment are just 
against organized labor.'' That is not true. I think the people should 
have the right to organize. If people want to strike, if they do not 
want to work, they should have that right as well.
  Likewise, employers have to have the right to hire replacement 
workers. If they cannot do that, they cannot keep the doors open. In 
many cases, you might be a critical subassembly of a particular part 
that has to happen to make this entire unit come together on time and 
on budget, and if an employer cannot hire replacement workers to make 
that happen, then they could be in violation of the original terms of 
that contract. They could lose the whole contract. The entire country, 
if you are talking about a Government contract, could end up paying an 
enormous amount for not being on time and complying with the terms of 
the contract.
  This is enormous power the President is trying to delegate to the 
Secretary of Labor. It is a mistake. Congress has refused to do this. 
Congress has refused to pass it, I believe correctly so. The President 
in trying to circumvent Congress, I think, greatly exceeds his 
authority, his power, and I hope my colleagues will agree with Senator 
Kassebaum and vote for cloture.
  I yield the floor.
  The PRESIDING OFFICER. The minority leader.
  Mr. DASCHLE. Mr. President, I will just take leader time and not take 
any time reserved for the distinguished Senator from Massachusetts.
  Let me make four very important, but simple, points.
  First of all, the President has every right to issue this Executive 
order. The precedent set by virtually every one of his predecessors 
makes that point loudly and clearly. President Bush, President Carter, 
President Nixon, President Johnson, President Truman, President 
Roosevelt--they all issued Executive orders having to do with important 
national priorities, and they did so without anyone challenging their 
right to make those choices. Obviously, they may have been in 
significant disagreement, but the fact is they made those Executive 
orders with the clear understanding that it was within their 
constitutional right to do so.
  That is what this President is doing as well. The President is simply 
saying, ``Look, if you want to do business with the Federal Government, 
you simply cannot replace striking workers who are conducting a 
legitimate strike with replacement workers.'' That is all he is saying.
  I do not think that is too much to ask. Obviously, given the 
extraordinary difficulty working families are having today, the need to 
assure balance in the workplace is all this issue is about. Giving 
workers the right to strike, the right to maintain balance in a working 
relationship with their employers, has been something guaranteed under 
the National Labor Relations Act for 60 years.
  The second point is that this is simply an issue of fairness. The 
right to strike--the right to ensure that your grievances can be heard 
in a meaningful way--is a longstanding right of workers, and one which 
must be protected. They must continue to have the right to strike, and 
this Executive order simply says that we are going to have that 
guarantee in writing, at least as far as Government contracts are 
concerned. The President has made it very clear that working families 
are a priority in this country.
  My third point, Mr. President, is this: as the distinguished Senator 
from Massachusetts has said, this is the first in what will be a series 
of very critical votes this Congress that directly affect working 
families. What happens on this vote will send a clear message about 
what the Congress is going to do and the position it will take with 
regard to a number of these issues in the future.
  If they lose the longstanding balance that has existed between labor 
and management, if they lose a fundamental right guaranteed all 
workers, I do not know that it bodes very well for other issues that 
will be pending. There are those who suggest we eliminate the minimum 
wage. There are those who suggest we eliminate the Davis-Bacon Act. 
They have suggested a number of attacks on the rights of working 
families, and certainly this is the first opportunity we have to defend 
those rights. I hope that everyone understands the critical nature of 
this vote. It goes beyond simply a question of filibusters. It goes 
beyond a question of procedure on the Senate floor. It goes to the very 
heart of why we are here defending the rights of workers at times as 
important as this.
  The fourth point, Mr. President, is one that I hope everyone can 
appreciate. As we go through the final moments of this debate, we must 
remember that the question of whether or not the rights that have been 
reaffirmed in this Executive order are respected is of fundamental 
importance to our relationship with the President.
  The President must make decisions with regard to executive branch 
policy. He has made a very important decision to respect the rights of 
working families. I think it is imperative that we respect his 
authority to do so. That is all we are saying here, that this 
President, as other Presidents have done, has made a decision with 
regard to working families that, in our view, ought to be upheld and 
ought to be respected.
  So, Mr. President, in a couple of minutes, we are going to be casting 
a vote that goes beyond procedure, a vote that goes beyond simply a 
motion to invoke cloture. It goes to the very heart of whether working 
families are going to have the right to maintain the balance in the 
workplace that we all recognize is important to them and to this 
country.
  So I hope we can sustain the necessary votes to defeat cloture this 
morning and send a clear message to working families that the Senate is 
on the side of families, on the side of working people, on the side of 
maintaining the balance between labor and management that we have 
recognized for the last 60 years.
  I yield the floor.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Kansas.
  Mrs. KASSEBAUM. Mr. President, how much time is remaining?
  The PRESIDING OFFICER. Just over 9 minutes on the Senator's side.
  Mrs. KASSEBAUM. I would like to yield myself 5 minutes.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mrs. KASSEBAUM. Mr. President, if I may just restate what this 
amendment is about. It is an amendment which would bar any Federal 
funds from being spent to implement the Executive order that was issued 
by the President last week.
  That Executive order would effectively prohibit Federal contractors 
from exercising their legal right to hire permanent replacement 
workers--a right that has been the law of the land for 60 years.
  Mr. President, we have heard a lot about this debate being one thing 
or 
 [[Page S3917]] another--an assault on working families, an assault on 
children. I believe, Mr. President, and perhaps I am naive in thinking 
so, that this vote should not be viewed as a test of the President's 
leadership, nor should it be viewed as a test of Republican clout. I 
hope that it would not be viewed as a vote for labor or a vote for 
business.
  I wish that this amendment would be taken for what it is. No one 
wants to see workers dismissed gratuitously and replaced by permanent 
replacement workers. That is not what is at issue either. This is not 
the beginning of a series of assaults on working class families. This 
is a debate on an Executive order issued by the President which 
effectively changes labor law in a significant way.
  What this debate is all about, in my mind--and I think it is an 
important point--is the separation of powers between Congress and the 
executive branch. It is about whether our national labor policy should 
be determined by the President rather than by an act of Congress.
  The question at stake is whether we are prepared to allow the 
President to overturn 60 years of established labor law with the stroke 
of a pen.
  We can debate this issue at another time. We have debated it before, 
and I am sure we will again. There are those who suggest we may be able 
to find some compromises that can bring all sides together. But what 
the current law has done in over 60 years is to provide the balance to 
which the Democratic leader spoke. It has provided a balance between 
labor and management, and that should be preserved.
  It has been mentioned that there were other Executive orders which 
were undertaken, and we have debated this before. Just to reiterate, 
however, no previous Executive order by President Bush or President 
Reagan went this far in contradicting both the law and the will of 
Congress.
  President Reagan's order banned illegally striking air traffic 
controllers from Federal employment. This was well within his rights 
and was not contrary to existing law. President Bush's order on Beck 
was merely enforcing existing law. President Bush's order on prehire 
contracts was not preceded by extensive debate and defeat by Congress, 
as has been the case with striker replacement legislation. He may well 
have exceeded his authority on that Executive order on prehire 
contracts, but it was never an order that was challenged by the courts 
or challenged in Congress.
  I think we are seeing here that under this Executive order Federal 
contractors will effectively be barred from exercising a longstanding 
legal right--just as labor has the right to strike--that all other 
companies are permitted to do under existing labor law.
  Regardless of which side we might take on the issue of striker 
replacements, we should all be concerned, Mr. President, about the 
precedent this Executive order would set for future Presidents.
  What if a new administration decided to debar any contractor whose 
workers decided to go on strike? Would we feel the same way about an 
Executive order that infringed on the equally longstanding right to 
strike?
  It has also been argued that this Executive order will have only a 
limited impact, that perhaps only a dozen companies would be affected. 
Mr. President, the Federal Government contracts for close to 180 
billion dollars' worth of goods and services. Many defense contractors 
would be affected, and that is why it is fitting this is added as a 
debate to the defense supplemental bill. This order will potentially 
affect tens of thousands of companies.
  The PRESIDING OFFICER. The Senator's 5 minutes has expired.
  Mrs. KASSEBAUM. I yield myself 2 additional minutes.
  The Defense Department alone has contracts of value greater than 
$100,000 with over 20,000 different companies. This Executive order 
would cover Federal construction projects, potentially colleges and 
universities with Federal research contracts, hospitals and health care 
providers that contract with the Federal Government. It is very unclear 
as to what exactly this Executive order might apply. As was pointed out 
by the Senator from Mississippi and the Senator from Oklahoma, the 
Secretary of Labor has a great deal of discretion under this Executive 
order to decide when it may or may not apply.
  Over 30 years ago, the Supreme Court overturned President Truman's 
attempt to seize control of the steel mills by Executive order. I 
believe Justice Black's opinion in the Youngstown case is relevant 
here. He said:

       In the framework of our Constitution, the President's power 
     to see that the laws are faithfully executed refutes the idea 
     that he is to be a lawmaker. The Constitution limits his 
     functions in the lawmaking process to the recommending of 
     laws he thinks wise and the vetoing of laws he thinks bad.

  I believe the President has exceeded his authority here by attempting 
to make the law, dictating the terms of our national labor policy, by 
means of the Executive order in direct contravention of current law.
  Congress makes the law, not the President, and we should not 
relinquish our role in setting national labor policy by allowing this 
Executive order to stand. I urge my colleagues to support cloture in 
order to reassert the authority of the Congress and to bring this 
debate to a close.
  I yield the floor, Mr. President.
  The PRESIDING OFFICER. The Chair recognizes the majority leader.
  Mr. DOLE. I yield to the Senator from Massachusetts.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Massachusetts.
  Mr. KENNEDY. How much time remains, Mr. President?
  The PRESIDING OFFICER. Just over 4 minutes.
  Mr. KENNEDY. I yield myself 3 minutes and then whatever time I will 
yield back, to let the majority leader have the final word.
  Mr. President, I thank the Senator from Kansas for both her 
explanation and the justification for her amendment. Over the period of 
the last several days, we have tried to go through the circumstances of 
the Youngstown case and distinguish the executive authority that 
President Truman attempted to assert in that case and the executive 
authority that President Clinton is exercising with regard to this 
order, and I think we have made that case in a very compelling way. I 
think anyone who reads through the Record would find the analysis 
persuasive. I respect the fact that Senator Kassebaum does not believe 
this is really about broader public policy issues. But I must take 
issue with her in that conclusion.
  We are not debating on the floor of the Senate the issue of what we 
are going to do about increasing the minimum wage.
  My Republican colleague have not proposed even a sense-of-the-Senate 
resolution to say, for instance, that working families are falling 
further and further behind; that we think work ought to be adequately 
compensated; that we think work ought to be recognized; that we think 
any American who works 40 hours a week 52 a weeks a year ought to 
receive a decent wage. Not even a sense-of-the-Senate resolution to say 
perhaps we are not going to address this on this particular bill, but 
we are prepared to work to protect the future of working families; we 
are prepared to work to protect their interests in terms of their 
children who might need a summer job or their small children who might 
need a school lunch; we are prepared to speak up about the needs of 
working families. Nothing to say we differ with you on this Executive 
order, but we are for working families. And that is what this debate is 
really about.
  What we are voting on takes place against the background of what has 
happened to family incomes since 1980, and the fact that the only real 
growth in family incomes that has taken place is among the families at 
the top--the wealthiest individuals in this country.
  That is the background of what has happened to the income of working 
families over the past 20 years, and now we are debating against this 
background a measure that is going to further attack the legitimate 
rights of working people who are hard-working, who are trying to make 
it, but whose incomes have been held down over the last two decades. 
Those are the people who are going to be affected by the President's 
Executive order which my Republican colleagues are trying to block.
  [[Page S3918]] We have illustrated in the course of this debate the 
kinds of people who will be adversely impacted if the Senator's 
amendment is adopted.
  The PRESIDING OFFICER. The Chair advises the Senator his 3 minutes 
have expired.
  Mr. KENNEDY. Mr. President, therefore, it is my hope that the motion 
to invoke cloture would not pass, that the amendment itself would be 
withdrawn and that we would go back to further consideration of the 
very important underlying defense appropriations bill.
  I thank the Chair.
  The PRESIDING OFFICER. The Chair recognizes the majority leader.
  Mr. DOLE. Mr. President, how much time is remaining?
  The PRESIDING OFFICER. Just over 2 minutes.
  Mr. DOLE. Mr. President, let me just lay it out cold. This is all 
about politics. It has nothing to do with workers or anybody else.
  Last week, President Clinton kicked off his 1996 reelection campaign 
by signing an Executive order that would prohibit Federal contractors 
from hiring permanent replacement workers during economic strikes.
  Despite all the talk about fostering fairness in the Federal 
workplace, the Executive order is a transparent effort on the 
President's part to shore up a political base that he believes is vital 
to his own reelection chances.
  During the past several years, Congress has considered, and 
repeatedly rejected, the so-called striker-replacement bill. That is 
why the President is setting a dangerous precedent if he believes he
 can revive this defeated legislation simply by issuing an executive 
order.

  It is the responsibility of Congress, not the administration, to 
write the laws governing labor-management relations in this country.
  So, Mr. President, I urge my colleagues to support this motion to 
invoke cloture. The amendment offered by my friend and colleague from 
Kansas, Senator Kassebaum, will help restore the careful balance--that 
is what we want--a careful balance between labor and management that 
has been the hallmark of our system of collective bargaining for more 
than 60 years.
  The President's misguided directive is a politically inspired attempt 
to do an end run around the legislative process. I do not believe it 
should go unchallenged.
  I yield the floor.

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