[Congressional Record Volume 143, Number 46 (Thursday, April 17, 1997)]
[Senate]
[Pages S3317-S3320]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                S. 606, THE OPEN COMPETITION ACT OF 1997

  Mr. HUTCHINSON. Mr. President, I am pleased to introduce today an 
important piece of legislation which will guarantee to all Americans an 
equal opportunity to compete for the nearly $60 billion of Government 
contracts.
  The Open Competition Act of 1997 ensures that no single special 
interest group will have an exclusive claim on Federal contracts, and 
would accomplish this by amending the National Labor Relations Act to 
simply prohibit discrimination in bidding for contracts funded by the 
Federal Government.
  The Clinton administration, specifically the Vice President, recently 
announced their intent to issue an Executive order which would, in 
practice, create a union-only mandate for all Federal projects.
  Upon closer examination, a disturbing connection exists between 
contributions made by big labor interests, the announcement of the 
proposed Executive order, and the individuals who actually drafted the 
language of this order.
  For the American people to fully understand what prompted these 
actions by the Clinton administration, it is essential to understand 
exactly what big labor did for them during the 1996 election.
  As widely reported after the November election cycle, labor unions 
spent between $300-400 million on the 1996 elections--Wall Street 
Journal, April 11, 1997.
  This amount is even more astonishing when you consider that it was 
financed in large part by dues-paying union members who were never 
asked by the union leadership if this was how they wanted their hard-
earned wages spent.
  I firmly believe in the constitutional right to donate money to the 
political candidate of your choice. However, the problem here is what 
is asked for in return for this money, and even worse, what is given.
  The question must be asked--What did the labor unions get in return 
for the incredible amount of money they spent in the 1996 election?
  On February 18 of this year, at the AFL-CIO convention in Los 
Angeles, the Vice President pledged the administration's support for 
organized labor and announced several initiatives the administration 
would be launching in coming months.
  ``How you treat your employees and how you treat unions counts with 
us,'' said the Vice President--White House Press Release, February 18, 
1997. He told the executive council of the AFL-CIO that the 
administration would issue an Executive order which would require 
Federal agencies to consider using project labor agreements on all 
Federal contracts--Bureau of National Affairs, February 19, 1997.
  These project labor agreements require all contracts for a particular 
job to be awarded only to contractors who agree to recognize designated 
unions as the representatives of their employees on that job.
  In addition, these agreements would require all contractors to use 
only union hiring halls to obtain workers, pay union wages and 
benefits, and obey the union restrictive rules, job classifications and 
arbitration procedures. The Open Competition Act would do away with 
this requirement and restore fairness to the bidding process.
  Just 3 days ago, on April 14, the Vice President announced that the 
administration was prepared to offer an Executive order encouraging 
Federal agencies to use project labor agreements--again, which 
generally require union representation--on Federal construction 
projects.
  His announcement was greeted by thunderous applause by almost 3,000 
AFL-CIO trade union officials in Washington, DC.
  This Executive order becomes very interesting when you consider the 
parties who had a hand in drafting the language. The language in the 
draft was jointly developed by the AFL-CIO, the

[[Page S3318]]

Clinton administration, and the Builders and Construction Trades 
Department.
  I believe this is a clear indication that the money spent by big 
labor during the 1996 elections not only provided the catalyst for this 
Executive order, but also gave them a seat at the table when it was 
written.
  Is this the way to build trust with the American worker?
  The Clinton administration would have us believe their actions 
benefit the majority of the American work force. But when you consider 
the percentage of Americans who belong to labor unions, this is clearly 
not the case.
  Of the total work force in America, only 14.5 percent belong to 
unions. When you consider just those workers in the construction 
industry, only 18.5 percent of those are union members.
  The facts clearly show that if this Executive order is implemented, 
only a minority of American workers will benefit. The 81.5 percent of 
workers who do not belong to a labor union will be placed at a clear 
disadvantage to the 18.5 percent who do.
  Essentially, this means 4 out of every 5 workers would face 
discrimination. This is clearly not the way to help the American 
worker.
  I want to make it very clear to the American people the detrimental 
effect this action by the administration will have on the American work 
force.
  The Open Competition Act which I am introducing today, will assure 
the vast majority of American workers that their government will not 
discriminate against them.
  This proposed Executive order will have the effect of creating a 
union-only mandate for all Federal construction projects. In addition, 
it would directly attack the principle of open competition in Federal 
contracting by excluding from the bidding process four out of every 
five workers who have chosen not to be represented by unions.
  The Federal Government should not be ordering discrimination against 
open shop companies which bid for federally-funded construction 
contracts. Rather, it should be encouraging competition for these 
contracts and promoting participation in the process by all companies 
who wish to bid.
  The Open Competition Act of 1997 would make sure this occurs.
  It would simply be unconscionable to institute a federal policy which 
would allow a special interest group to have an exclusive claim on 
Federal contracts based on their enormous political contributions to 
the current occupants of the White House.
  This distinguished body has the obligation to insure that Federal 
contracts are awarded through full, open, and competitive procedures. 
The Open Competition Act which I am introducing today along with 
Senators Lott, Nickles, Mack, Coverdell, Craig, Thurmond, Jeffords, 
Coats, Gregg, Frist, Enzi, Collins, Warner, McConnell, Allard, 
Brownback, Hagel, Kyl, and Roberts, guarantees that our constitutional 
prerogatives will not be infringed upon.
  I ask my colleagues to join me in supporting this legislation and 
guarantee to the American worker that their own Government will not 
discriminate against them.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 606

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Open Competition Act of 
     1997''.

     SEC. 2. PROHIBITION REGARDING CONSIDERATION OF CERTAIN LABOR 
                   RELATIONS POLICIES OF OFFERORS ON FEDERALLY 
                   FUNDED CONTRACTS.

       Section 8(e) of the National Labor Relations Act (29 U.S.C. 
     158(e)) is amended by adding at the end the following: 
     ``Notwithstanding any other provision of this Act, no person 
     may be discriminated against when bidding on a prime 
     contract, funded in whole or in part with funds provided by 
     the Federal Government, where such discrimination is based in 
     whole or in part on a requirement that such person enter into 
     or adhere to a collective bargaining agreement or any similar 
     agreement as a condition of performing work under the 
     contract.''.

     SEC. 3. CONSTRUCTION.

       The amendment made by section 2 shall not be construed--
       (1) to apply to subcontractors, or
       (2)(A) to prohibit a contractor from voluntarily entering 
     into a lawful agreement with a labor organization; or
       (B) to discourage contractors who have entered into such an 
     agreement from bidding on Federal contracts.

     SEC. 4. APPLICATION.

       The amendment made by section 2 shall apply to contracts 
     made directly with any agency of the Federal Government and 
     to contracts made with any entity that is managing or 
     operating a facility owned or controlled by the Federal 
     Government on behalf of the Federal Government.

  Mr. COVERDELL. Mr. President, I thank the Senator from Arkansas not 
only for his statement and understanding of the issue but for taking 
the initiative affirmatively to correct it. I only wish it had not been 
the case that the legislative branch has engaged in legislation to 
protect its constitutional rights.
  If I might, I will take just a moment to describe by precedent the 
sequence of events that are occurring here. In the 1992 campaign for 
President, President Clinton took a position on striker replacement 
which had been in labor law since the mid-1930's, which, under certain 
circumstances, would allow a company meeting certain criteria to 
replace strikers who were striking not over economic matters. This has 
been a contentious issue. The President said he would support 
legislation that would prohibit that, even though it has been in labor 
law for over three decades.
  He was thwarted in that. Even though he controlled the Congress--he 
controlled the White House and he had a majority in the Senate and the 
House--and he could not secure consensus on that pledge that he had 
made. So the beginning of this new concept began to unfold, even in the 
early days of this administration. The President issued an Executive 
order on striker replacement because, as I said, he had promised this 
in his campaign, could not get the Congress to agree.
  After wooing labor during the election with promises of a ban, 
President Clinton made good on his pledge on March 8, 1995, when he 
issued Executive Order 12954, titled, ``Ensuring the Economical and 
Efficient Administration and Completion of Federal Government 
Contracts.'' The order authorized the Secretary of Labor to debar a 
contractor after finding that the contractor has permanently replaced 
lawfully striking employees, thus, making the contractor ineligible to 
receive Government contracts.

  As I said, Congress had rejected this legislatively. So the President 
ignored the will of the people, ignored the Congress, and imposed it 
through an Executive order. Now, what happened? Well, back to the 
ingeniousness of the forefathers. There is an executive, legislative, 
and judicial branch. Quite properly--I repeat, properly--a Federal 
appeals court unanimously declared that the Executive order exceeded 
the President's authority. He had overreached. He was governing by 
decree. This is not a part of the American republic.
  Now, here we come again, another Presidential campaign is carried 
out, commitments are made, but the President is finding a people's 
branch, the legislative branch, that will not accept an egregious 
command that excludes 80 percent of the work force. So according to the 
Bureau of National Affairs publication, it says, ``The proposed 
Executive order would encourage Federal agencies to consider requiring 
the use of a project labor agreement for federally funded construction 
projects.'' This is interesting language in the draft: ``The Executive 
order was jointly developed by the Building and Construction Trades 
Department, the AFL-CIO, and the Clinton administration,'' according to 
Robert A. Geogine, BCTD President, the President of that union.
  Here we have this new Senate Chamber, opened in 1859, and the House 
on the other side, the House and the Senate and the legislative 
process; but one trade union drew this law that would be imposed on all 
the American people and that would exclude 80 percent of the work force 
from having an opportunity to engage in these contracts.
  Mr. President, to add to this sequence of events, making it a little 
clearer--this is a new form of making laws in the American Republic, 
far from these hallowed Halls. This is a memo to the national and 
international union presidents from John J.

[[Page S3319]]

Sweeney, president of the AFL-CIO. It says: ``Support for a proworker 
Federal procurement reform * * *'' dated March 25, 1997. What it 
doesn't say is it's support for 20 percent of the workers, in a very 
select category, and to the exclusion of the others. And it says: ``As 
you may recall, the Clinton administration recently announced its 
intention to undertake several initiatives that will,'' in his words, 
``protect workers' rights and workplace standards * * *''--he is 
talking about the workers that belong to his union, not the rest of the 
workers--``* * * while improving Federal Government procurement and 
contracting practices * * *''--which means that the practices are 
designed to benefit his interest but not the other 80 percent. It says: 
``If properly implemented, these initiatives will affect the 
expenditure of * * *''--his words--``hundreds of billions of dollars 
every year.'' In any given year, Federal contracts total as much as 
$200 billion, and Federal contractors and subcontractors employ 
approximately one-fifth of the labor force.
  He goes on in the memorandum to say, ``The Government will be issuing 
proposed regulations that will accomplish three reforms. First, the 
Government will evaluate whether a bidder for a Government contract has 
a satisfactory record of labor relations.''
  Well, who makes that decision? I guess it would be made in the same 
room in which these procurement regulations were written, and that they 
would become the arbitrators of what is a satisfactory performance, 
just like they are the authors of this law that is being placed on the 
people of America, without any lawmaker ever voting on it.
  He goes on to say: ``Second, the Government will not reimburse 
Federal contractors for the costs they incur in unsuccessfully 
defending against an unfair labor practice suit.''
  This has been an argument in the Labor Relations Board for over 30 
years, as I said.
  ``Third, the Government will not reimburse contractors for the money 
they spent to fight unionization.'' Perhaps, but this is where we make 
these decisions, not wherever this room was. This goes on to say--and 
this is a very pertinent paragraph in this memo of March 25: 
``President Clinton will also issue an Executive order directing all 
Federal departments to consider using a project labor agreement when 
they undertake Government-funded construction projects. This order is 
not subject to notice and comment, or other administrative steps.'' I 
repeat, ``This order is not subject to notice and comment, or other 
administrative steps.'' In other words, fiat, decree, governance by 
decree. And then it goes on and meticulously points out how the 
recipients of this memorandum should begin building cases. Lawyers 
should provide citations to the National Labor Relations Board and 
copies of all decisions, settlement agreements, et cetera. Organizers 
should provide information about campaigns and work sites. And 
lobbyists should review their files where local unions and other 
internal bodies have requested intervention, et cetera, et cetera, et 
cetera.

  Decree--written in some room between the Building Construction Trade 
Department, the AFL-CIO, and the President. It is a new way of writing 
law, Mr. President.
  I yield up to 10 minutes to my good colleague from Idaho, Senator 
Craig.
  The PRESIDING OFFICER. The Senator from Idaho is recognized.
  Mr. CRAIG. Mr. President, let me thank the Senator from Georgia for 
the time he has taken today to bring this critical issue to the floor 
and for an open discussion among Senators and, hopefully, the American 
people on a proposed Executive order that our President is at least 
talking about at this moment, and that the Vice President has pledged 
that the administration will act upon, which would significantly change 
the dynamics of Federal contracting.
  Without doubt, open competition in a free enterprise environment is 
the only way the Government of this country and the taxpayers can 
expect fair treatment of the tax dollar when it comes to buying the 
goods of Government or the projects of Government for the citizens of 
this country. We spend hundreds of billions of dollars a year in this 
business of contracting.
  As Government provides services and, of course, provides capital 
expenditures for construction of roads, bridges, and buildings, that 
are a part of what we think is necessary, for the President to suggest 
a whole new dynamics as to how that contracting ought to come about, 
significantly skewing it toward organized labor is, at best, not being 
responsible to the taxpayers and, at worst, if I can simply say it, 
paying off for the great service provided in the last election by 
organized labor to the Democrat party.
  Is that a blunt and cold statement? Well, it is. But it falls on the 
heels of hundreds of millions of dollars worth of expenditures, 
targeted specifically at members of the Republican Party. And now I 
must say that it appears that union bosses were literally sitting 
inside the offices of this administration to help craft what we 
believed would be a significant change in the way the bidding process 
of a fair and competitive market would work on Government contracts. 
``Require Federal departments and agencies to evaluate whether a bidder 
for a Government contract has a satisfactory record of labor relations 
and other employment practices, in determining whether or not the 
bidder is a responsible contractor, eligible to receive a particular 
Government contract.''
  This regulation, if it were to become regulation under Executive 
order, would require the companies bidding for Federal contracts to 
have a spotless record of compliance throughout the Federal regulatory 
spectrum, including collective bargaining, wages, benefits, equal 
opportunity, health, and safety.
  In an era of regulatory overkill, when OSHA can issue a $13,200 fine 
to a roofing company for having a broken shovel in the back of a truck, 
my guess is there is hardly a potential contractor out there today that 
can meet all of this criteria. And now we have added dramatically to it 
a second possibility, ``to prohibit Government reimbursement of Federal 
contracts for the costs they incur in unsuccessfully defending against 
or settling unfair labor practice complaints brought against them by 
the NLRB.'' ``Prohibit Government reimbursement of contractors for 
money they spend to fight unionization of their employees,'' and so on 
and so forth.
  Why is it significant that we talk about this today? The Executive 
order that we are concerned about has not yet been issued. Well, here 
is the reason why we talk about it and think it is extremely important. 
It wasn't very long ago that the Vice President went before organized 
labor and suggested to them that there would be an Executive order sent 
forward on worker replacement, and it was. It took a Federal court 
action to strike down this particular action on the part of the 
administration as simply being outside the law in relation to the 
National Labor Relations Board and its ability to make decisions. And, 
therefore, it was an illegal act, or certainly an act outside the law, 
and the decision was struck down.
  Now, it is interesting that our Vice President would follow the same 
process. I think that we can suggest to the courts that this kind of an 
Executive order would fall under very similar kinds of guidelines that 
the one of a year ago did, because it probably falls under the Supreme 
Court's decision of 1986 of Wisconsin Department of Industries.
  I think what concerns all of us is the use of Executive order and 
rule and regulation on the part of this administration, instead of 
coming to the Congress of the United States and saying this is good 
policy. Do you mean this policy can't be debated on the floor of the 
Senate and voted on as a part of the law for contracting of Government 
programs? It should be, if that is how we are going to make public 
policy instead of by Executive order of the kind and the nature that is 
being talked about in this potential Executive order. Union-only 
subject agreements clearly have an exclusive and an anticompetitive 
nature to them. It is not for me to give an anti-union speech. Clearly, 
companies that are unionized ought to have every right to bid. But 
other companies that meet reasonable standards can compete over good 
bids, and do it in a fair and responsible way and provide the service 
to the Government as expected. They ought to have

[[Page S3320]]

a right in that same market. That is exactly what George Bush said when 
he said it very clearly in 1992 in an Executive order requiring all 
Federal agencies to use an open competitive process for all Federal 
contracts. President Clinton's executive order would revoke this 
basically. That was revoked in 1983, and this would go even further to 
narrow it and define who could bid. It just so happens that only a 
limited few could bid. Last year, if this Executive order, as we 
understand it, were in place--I guess it is a contract for fiscal year 
1993--it would have been well over 13 percent more of them at about 
$182 billion.

  In addition to contracts with major corporations, a study identified 
with contracts with Duke University, with Loyola University, and 
others, would fall subject to them and could well shut them off from 
their kind of contracts for research and development in the area of 
AIDS research in one and biomedical research in another.
  Mr. President, what our President proposes and what the Vice 
President has openly talked about to be expected this next week is in 
itself, in my opinion, a travesty of the way Government works and the 
way the executive and the legislative branch come together to build 
good public policy. This is special interest group legislating in the 
worst form. It is very bold, and it is very open. But, then again, 
hundreds of millions of dollars worth of campaign contributions later, 
I guess they can figure they can be that bold and that open because, 
certainly, in the shadow of what has occurred in the last election, 
this appears to be a response to those kinds of levels of 
participation.
  I thank my colleague and the Senator from Georgia for bringing this 
issue to the floor. It must be talked about. It must be understood 
openly by the American people. And, as I say, what the American people 
want for their tax dollar, its expenditure for and purchase of 
Government services and the need for capital expenditure within the 
Government is a fair and open bidding process and a good product in the 
end. Certainly, the President at this moment may well be accused of 
attempting to skew that into less competitive and most assuredly a less 
open process.
  I yield the floor.
  Mr. COVERDELL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. COVERDELL. Mr. President, I thank the Senator from Idaho for his 
usual contribution. He has contributed substantively to this 
discussion.


                     Privilege of the Floor--S. 495

  Mr. President, I ask unanimous consent that Jeanine Esperna, staff 
member, and David Stephens, fellow for Senator Kyl, be granted 
privileges of the floor this afternoon during consideration of S. 495.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COVERDELL. Mr. President, I want to first make it clear--and I 
think Senator Craig alluded to this--that this is a constitutional 
confrontation. There is a growing propensity on the part of the 
administration, faced with a Congress that the people elected that are 
of a majority of the other party, to try to obviate the legislative 
branch through two courses: By Executive order or decree--and we have 
certainly seen the abuses of that throughout the world, which is why 
the Republic is so carefully constructed; and by regulation, which is 
something that has become unique in our own development in this 
country, where more and more regulators are lawmakers. You can't blame 
this administration alone for that kind of activity, but it has 
certainly accelerated.
  I want to point out that I have already pointed out that the U.S. 
appellate court struck down the President's last attempt at this kind 
of reconstruction of the Republic. But there are other judicial 
precedents.
  Mr. President, I am going to yield the remainder of my time in just a 
moment. I see my good friend from Alabama. They are dealing with the 
logistics of time here in terms of trying to deal with the Chemical 
Weapons Convention.
  I will close by simply saying there is a growing outrage in the 
Congress with regard to these attempts to reconstruct lawmaking. 
Lawmaking in America cannot be done in an isolated room with just 
special interests. Obviously, all interests have a rising ability to 
contribute their thoughts so long as they are debated and aired 
ultimately in the people's body and not bypassed. This is a clear 
attempt to bypass the legislature, and I do not believe it will be 
successful. Perhaps the administration needs to take counsel with 
itself with regard to the suggestions they have put forward--that major 
labor law would be written somewhere other than the Congress of the 
United States.
  Mr. President, I yield back all remaining time to the Senator from 
Alabama.
  Mr. SHELBY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alabama.

                          ____________________