[Congressional Record Volume 144, Number 132 (Monday, September 28, 1998)]
[Senate]
[Pages S11021-S11039]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  FEDERAL VACANCIES REFORM ACT OF 1998

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
resume consideration of debate of Senate bill 2176, which the clerk 
will report.
  The assistant legislative clerk read as follows:

       A bill (S. 2176) to amend sections 3345 through 3349 of 
     title V, United States Code (commonly referred to as the 
     ``Vacancies Act'') to clarify statutory requirements relating 
     to vacancies in and appointments to certain Federal offices, 
     and for other purposes.

  The Senate resumed consideration of the bill.
  Mr. THOMPSON. Madam President, the Senate today will vote on whether 
to invoke cloture on the Federal Vacancies Reform Act. This 
legislation, which enjoys bipartisan cosponsorship, is necessary to 
restore the Senate's authority as an institution in the process of 
appointing important Federal officials.
  Madam President, I request that I be allotted 20 minutes of our time.
  The PRESIDING OFFICER. The Senator has that right.
  Mr. THOMPSON. Madam President, I want to make sure that we reserve 
plenty of time for the distinguished Senator from West Virginia, 
Senator Byrd, who is really in many ways the author of this legislation 
and has been such a guiding light and firm supporter for so long a 
period of time.
  Article II, section 2 of the Constitution provides that

       The President shall nominate, and by and with the advice 
     and consent of the Senate, shall appoint Ambassadors, other 
     public ministers and consuls, judges of the Supreme Court and 
     all other officers of the United States, whose appointments 
     are not herein otherwise provided for, and which shall be 
     established by law, but the Congress may by law vest the 
     appointment of such inferior officers, as they think proper, 
     in the President alone, in the courts of law, or the heads of 
     departments.

  This is an important provision of the Constitution's system of checks 
and balances.
  The Supreme Court, in 1997, said that the appointments clause ``is 
more than just a matter of etiquette or protocol; it is among the 
significant structural safeguards of the constitutional scheme.'' By 
requiring the participation of the Senate with the President and 
selecting officers, the framers believed that persons of higher quality 
would be appointed than if one person alone made those appointments.
  One of the ways in which those persons would be better would be in 
respecting individual liberties.
  So the appointments clause serves to protect better government 
administration and the rights of the American people.
  The appointments clause was also adopted because manipulation of 
official appointments was one of the revolutionary generation's 
greatest grievances against executive power.
  As participants in the appointments process, we Senators have an 
obligation, I believe, to ensure that the appointments clause functions 
as it was designed, and that manipulation of executive appointments not 
be permitted. Nonetheless, we also need to recognize that despite the 
appointments clause, there will be times when officers die or resign in 
office. Their duties should continue to be performed by someone else on 
a temporary basis. It may not be possible as a matter of logistics that 
each temporary official serving as an acting officer in a position 
subject to the appointments clause will himself or herself receive 
Senate confirmation. Early Congresses recognized the need for persons 
to serve temporarily in advice and consent positions when vacancies 
arose, even when the person had not received Senate confirmation.

  The Vacancies Act has existed one way or another since then, with 
length of temporary service increasing to 120 days in legislation that 
was passed in 1988. The 1886 Vacancies Act was intended to provide the 
exclusive means for filling temporary appointments. And it has operated 
that way for several years.
  However, in 1973, the Justice Department, in seeking to appoint a 
temporary FBI Director in the midst of the Watergate scandal, appointed 
L. Patrick Gray without complying with the terms of the Vacancies Act. 
The Department for the first time made a public declaration that its 
organic statute created an alternative method for designating temporary 
appointments at the Department of Justice not subject to any time limit 
was there position. Since 1973 the Department has continued to make 
acting appointments outside the strictures of the Vacancies Act.
  The Justice Department relies on its organic statute's ``vesting and 
delegation'' provision, which states that the Attorney General can 
designate certain other powers to whomever she chooses in the 
Department, since specific statutory functions were not given to the 
subordinate officials. The Department makes this claim although current 
law states that a

       . . . temporary appointment . . . to perform the duties of 
     another under the Vacancies Act . . . may not be made 
     otherwise than as provided by the Vacancies Act.

  But the Justice Department's organic statute was designed simply to 
coordinate all Federal Government litigation, and did not change the 
Vacancies Act.
  The legislative history of the Department's organic statute confirmed 
this. In 1988, Congress, recognizing that the Justice Department was 
not applying the Vacancies Act as Congress clearly intended, sought to 
amend the act to make it more clear. They changed the law to eliminate 
this unsupported position of the Justice Department largely through the 
efforts of Senator John Glenn of Ohio. The Department of Justice, 
however, refused to read the language as Congress intended, relying on 
its same old arguments.
  As a result, the Department of Justice believes that the Attorney 
General can designate acting officers for 2 or even 3 years. The head 
of the Criminal Division--an important position with respect to 
guidance in Federal prosecutions, including independent counsel--was 
vacant for 2\1/2\ years without a nomination.
  An acting Solicitor General served an entire term at the Supreme 
Court, and no nomination for the position was ever sent to the Senate. 
Even the administration claims that an acting person can serve for only 
120 days. But after an acting person served for 181 days, the 
administration designated another person to serve as the Acting 
Assistant Attorney General for Civil Rights.
  Today all 14 Departments have similar language in their organic 
statutes. Now many Departments, at DOJ's urging, are claiming similarly 
that the Vacancies Act doesn't apply to them either as an exclusive 
means for filling vacancies.
  There is no time limit on temporary services. That has been adhered 
to under the organic statutes, making both the Vacancies Act and the 
appointments clause effective nullities,

[[Page S11022]]

according to the Comptroller General. The Comptroller General disagrees 
with the Justice Department's reading of current law, and all of the 
other Departments who have tagged along after the Justice Department.
  Each Department has at least one temporary officer now who has served 
longer than 120 days, allowed by the Vacancies Act. The nomination 
should be able to be sent to the Senate within 4 months. Since the 
President lacks any inherent authority to make appointments for offices 
that require Senate confirmation, the President's noncompliance with 
the Vacancies Act means noncompliance with the Constitution.
  As of earlier this year, when the Governmental Affairs Committee held 
its hearing on oversight of the Vacancies Act, of the 320 executive 
Department's advice and consent positions, 64 were held by temporary 
officials. Of the 64, 43 served longer than 120 days before a 
nomination was even submitted to the Senate. Other Departments are 
following Justice's lead.
  The acting head of the Census Bureau is neither the first assistant, 
nor a person who has been confirmed by the Senate, which is what the 
Vacancies Act currently requires.
  Of the nine vacant advice and consent positions at Commerce, seven 
have been filled by acting officers for more than 120 days. And one had 
been acting temporarily for 3 years.
  It is true that the Senate has not always acted on nominees as soon 
as it should. But that issue should be addressed separately.
  Many of the criticisms of the Senate's handling of the nominations is 
unwarranted since vacancies often remain open for lengthy periods 
before nominations are submitted.
  The Senate is now being publicly criticized for holding up the 
confirmation of Richard Holbrooke to be the U.N. Ambassador, for 
example, when in fact the administration has not even submitted his 
nomination to the Senate. The fact is that the administration is under 
a current statutory duty to have acting officers serve for 120 days, 
which can be extended simply by the administration sending the Senate a 
nominee.
  That means that if the Senate does not act it has to bear the 
responsibility for an acting person's service at that point. 
Responsibility is clearly placed where it belongs if an acting person 
continues to serve. But since the administration does not follow 
existing law, the Senate in many instances never gets a chance to even 
consider a permanent nominee.
  Under the administration's view, the entire set of confirmed 
officials in our Government could resign the day after they were 
confirmed, and acting officials who have not received the advice and 
consent of the Senate can run the Government indefinitely.
  That situation is completely at odds with what constitutional scheme 
and the framers created to protect individual liberties.
  There is another reason this bill should be enacted--the Court ruling 
recently that undermines the Vacancies Act further. Under the current 
law, if a vacancy in a covered position occurs, the first assistant to 
that officer becomes the acting officer for up to 120 days. In the 
alternative, the President can designate another Senate confirmed 
officer to act as the acting officer for 120 days. The 120 days can be 
extended if the President submits a permanent nominee for the position 
to the Senate. That creates an incentive for the President to submit 
nominations to the Senate. Recent court interpretations have greatly 
confined the operation of the Vacancies Act.
  In March, the United States Court of Appeals for the District of 
Columbia circuit approved the legality of actions taken by an acting 
director of the Office of Thrift Supervision who had served for 4 years 
without a nomination for the position ever having been submitted to 
this body. The Senate-confirmed director resigned in 1992 and purported 
to delegate all of his authority to OTS' deputy director for Washington 
operations. This person, who was neither the first assistant nor the 
Senate-confirmed individual, served as the acting director until 
October 1996.
  The President then invoked the Vacancies Act to designate a confirmed 
HUD official to serve as the acting director and submitted the 
nomination to the Senate for the position within 120 days. The bank 
challenging the legality of the acting officer's appointment argued 
that the 120 days had expired 120 days after the Senate-confirmed 
director's resignation created a vacancy, long before the Senate-
confirmed person was named the acting officer. But the Court held that 
the 120 days is a limitation only on how long an acting officer can 
serve, not a limitation on how soon after the vacancy arises that the 
President must submit a nomination.
  It allowed the later Senate-confirmed director to ratify the actions 
of the prior acting director. Thus, if there is no first assistant, the 
President can wait for 4 years to send a nomination to the Senate while 
an acting official, in this case selected by the head of the agency, 
not the President, runs an important agency. This is not what the 
framers thought that they had established. It runs contrary to the 
Vacancies Act itself and corrective action therefore is necessary.
  In any case, this administration, as stated above, has allowed many 
acting officers to serve for more than 120 days as permitted by the 
Vacancies Act without submitting a nomination to the Senate. The 
Vacancies Act presently has no enforcement mechanism, so once again the 
Senate's constitutional advice and consent prerogative is undermined. 
In Federalist Paper 76 Hamilton cautioned that:

       A man, who had himself the sole disposition of offices, 
     would be governed much more by his private inclinations and 
     interests than when he was bound to submit the propriety of 
     his choice to the discussion and determination of a different 
     and independent body; and that body, an entire branch of the 
     legislature. The possibility of rejection would be a strong 
     motive to care in proposing.

  So by disregard of the Vacancies Act and installing at its sole 
disposition numerous officials to important positions in the Government 
who escape the independent body's review is contrary to the original 
intent of the framers. Without a possibility of rejection, there is 
much less care taken in the proposing. S. 2176 will restore the 
constitutional balance and cloture should be invoked on the bill.
  Madam President, let me briefly discuss the provisions of S. 2176. 
Upon the death, resignation or inability to serve of an officer of an 
executive Agency, the first assistant to the officer becomes the acting 
officer subject to the bill's time limits. Because of additional 
background processing that is now required of nominees, the bill 
proposes lengthening the time of acting service from the current 120 
days to 150 days.
  If the President so directs, a person who has already received Senate 
confirmation to another position can be made the acting officer in lieu 
of the first assistant. This is basically the framework, Madam 
President, that is currently the law except we are extending the time 
period that the President has within which to make his decision. The 
first assistant has to have served 180 days in the year preceding the 
vacancy in order to be the acting officer, in order for someone to be 
put in in a very short period of time to be the first assistant so that 
they may then be appointed the acting officer.
  The acting officer may serve 150 days beginning on the date the 
vacancy occurs. The acting officer may continue to serve beyond 150 
days if the President submits a nomination for the position even if 
that occurs after the 150th day. So at the 150-day expiration, the 
President still has it within his sole discretion to make the 
nomination; just simply send the nomination up and the acting officer 
can come back once again and assume his duties. If a first or second 
nomination is withdrawn, rejected, or returned, the person can serve as 
the acting officer until 150 days after the withdrawal, rejection, or 
return.
  Recognizing the large number of positions that are to be filled in a 
new administration, the bill extends the 150-day period by 90 days for 
any vacancies that exist when a new President is inaugurated or that 
arise in the 60 days following a new Presidential inauguration.

  The bill will extend the provisions of the Vacancies Act to cover all 
advice and consent positions in executive Agencies except those that 
are covered by express specific statute that provide for acting 
officers to carry out the functions and duties of the office. Forty-one 
current statutes now allow

[[Page S11023]]

the President or the head of an executive Department to designate or 
provide automatically for a particular officer to become an acting 
officer. The bill also exempts multimember commissions, and it retains 
holdover provisions of current law.
  The bill expressly states that vesting and delegation statutes do not 
constitute statutes that govern the appointment of acting officers to 
specific positions. The bill will thus end the specious argument of the 
Justice Department that it and other Departments' organic statutes 
provide an additional means, and really a superseding means of 
appointing acting officials apart from the Vacancies Act.
  The bill also creates an enforcement mechanism for the Vacancies Act, 
something that is also sorely needed. Today, acting officers regularly 
exceed the 120-day limitation without consequence. Under 2176, an 
office becomes vacant if 150 days after the vacancy arises no 
Presidential nomination for the position has been submitted to the 
Senate. For offices other than the heads of Agencies, the functions and 
duties that are specifically to be performed only by the vacant officer 
can be performed by the head of that particular agency. That means that 
all functions and duties of every position can be performed at all 
times. But if a nomination is not submitted within the Vacancies Act 
period, only the head of the Agency can perform the specific duties of 
the vacant offices. Hopefully, that will create an incentive for the 
President to go ahead and submit a nomination. As soon as the 
nomination is submitted, the acting officer can then resume performing 
the duties and functions of the vacant office. No one may ratify any 
actions taken in violation of the bill's vacant office provisions.
  Madam President, this approach will not penalize the acting person in 
any way, but it will encourage the submission of nominees within 150 
days without jeopardizing the performance of any Government function if 
that deadline is missed.
  The Vacancies Reform Act also establishes a reporting procedure. Each 
Agency head will report to the General Accounting Office on the 
existence of vacancies, the person serving in an acting capacity, the 
names of any nominees, and the date of disposition of such nominee. The 
Comptroller General will then report to the Congress, the President, 
and the Office of Personnel Management on the existence of any 
violations of the Vacancies Act. This will provide useful information 
to the President so he will know the progress of the 150-day clock and 
will benefit the Senate as well.
  This bill has been modified to take into account objections raised by 
members of the committee and elsewhere as well as the administration. 
In committee, we lengthened the Presidential transition period. We 
permitted the President to name an acting officer by submitting a 
nomination even after the 150-day period has expired. We agreed to 
consider shortening the length of service prior to the vacancy a first 
assistant must satisfy to become an acting officer. This bill is 
institutional and not partisan. Members should vote for cloture in 
recognition of the fact that the Senate and the Presidency will not 
always be controlled by the parties that control these institutions 
today, and in recognition of the duty that we all share to uphold the 
Constitution and protect the legitimate prerogatives of this 
institution.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. LEVIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Michigan


                         Privilege of the Floor

  Mr. LEVIN. Madam President, I ask unanimous consent that a 
legislative fellow on my Governmental Affairs subcommittee staff, 
Antigone Potamianos, be granted floor privileges during consideration 
of S. 2176.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. I thank the Chair.
  The PRESIDING OFFICER. Who yields time?
  Mr. THOMPSON. Madam President, I yield such time to the Senator from 
West Virginia as he may consume.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Madam President, I thank the distinguished Senator from 
Tennessee, Mr. Thompson, who is chairman of the Governmental Affairs 
Committee in the Senate. Let me commend him and his committee for 
reporting this bill. That committee has worked long and hard and very 
industriously in an effort to craft legislation that, in its final 
analysis, goes a long way toward protecting the prerogatives of the 
Senate under the Constitution, in particular with reference to the 
appointments clause, which appears in article II, section 2, of the 
Constitution.
  Madam President, nearly two weeks ago, on September 15th, I had the 
high privilege of addressing my colleagues in the Old Senate Chamber as 
part of the Leadership Lecture Series sponsored by the distinguished 
Majority Leader. In my remarks, I emphasized two points which I thought 
were important for all Senators to consider. First, I maintained that, 
if the legislative branch were to remain a coequal branch of our 
government, then it must be eternally vigilant in protecting the powers 
and responsibilities vested in it by the Constitution. Secondly, I 
noted that, throughout its history, the Senate has been blessed with 
individuals who were willing to rise above party politics, and instead 
act in the best interest of this nation and this institution.
  The legislation before us today goes to precisely the type of concern 
I raised in my remarks. S. 2176, the Federal Vacancies Reform Act, 
would strengthen existing law, thus protecting the Senate's 
constitutional ``Advice and Consent'' role in the process of nominating 
and appointing the principal officers of our government. And, because 
this bill speaks to the very integrity of the separation of powers and 
the system of checks and balances embedded in our Constitution, it is a 
measure which I believe all Senators can support, regardless of party 
affiliation.
  To give my colleagues some idea of the dimensions of this problem, 
earlier this year, I asked my staff to survey the various cabinet-level 
departments to ascertain how many of these so-called ``advice and 
consent'' positions were being filled in violation of the Vacancies 
Act. I can report that the trend is disturbing: Of the 320 departmental 
positions subject to Senate confirmation, 59, or fully 18 percent, were 
being filled in violation of the Vacancies Act. At the Department of 
Labor, for example, one-third of all advice and consent positions were 
being filled in violation of the Vacancies Act. At the Department of 
Commerce, 9 of 29, or 31 percent, of those positions were being filled 
in violation of the Act. And, at the Department of Justice, 14 percent 
of the advice and consent positions were being filled by individuals in 
contradiction of the Vacancies Act. Clearly a problem exists.
  As my colleagues know, the process used by the President to staff the 
executive branch is laid out in the Appointments Clause of the 
Constitution. That clause, found in Article II, section 2, states, in 
part, that the President

       . . . shall nominate, and by and with the Advice and 
     Consent of the Senate, shall appoint Ambassadors, other 
     public Ministers and Consuls, Judges of the Supreme Court, 
     and all other Officers of the United States, whose 
     Appointments are not herein otherwise provided for, and which 
     shall be established by Law: but the Congress may by Law vest 
     the Appointment of such inferior Officers, as they think 
     proper, in the President alone, in the Courts of Law, or in 
     the Heads of Departments.

  Because vacancies in these advice and consent positions may arise 
from time to time when the Senate is not in session, the Constitution 
also provides that

       The President shall have Power to fill up all Vacancies 
     that may happen during the Recess of the Senate, by granting 
     Commissions which shall expire at the End of their next 
     Session.

  Madam President, in an effort to secure the Senate's constitutional 
authority under the Appointments Clause, Congress established a 
statutory scheme that lays out not only the order of succession to be 
followed should one of these senior positions become vacant, but which 
also sets a strict limit on the length of time an individual may 
temporarily fill such a position. That legislation, which has been in 
place since July of 1868, is known as the Vacancies Act, and is 
codified in sections 3345 through 3349 of Title 5 of the U.S. Code.

[[Page S11024]]

  For those who may not be familiar with the Vacancies Act, this is the 
essence of what it says. First, section 3345 provides that if the head 
of an executive department--a member of the President's Cabinet, for 
example--dies, resigns, or is otherwise sick or absent, his or her 
first assistant shall perform the duties of that office until a 
successor is appointed. Second, section 3346 states that when a 
subordinate officer--generally those positions at the deputy and 
assistant secretary levels--dies, resigns, or is otherwise sick or 
absent, that officer's first assistant also moves up to take over the 
duties of the office until a successor is appointed. And third, despite 
either of those self-executing methods for temporarily filling a vacant 
position, section 3347 authorizes the President to direct any other 
officer, whose appointment is subject to Senate confirmation, to 
exercise the duties of the vacant office. In any event, absent a recess 
appointment, those three sections of the Vacancies Act provide the 
exclusive statutory means of temporarily filling a vacant advice and 
consent position.
  But whichever method is used--either automatic succession, as 
contained in sections 3345 and 3346, or presidential selection, as 
contained in section 3347, Madam President, the key to protecting the 
Senate's constitutional role in the appointments process lies in 
section 3348 of the Vacancies Act. That section plainly states that, 
should one of these positions become vacant due to death or 
resignation, it shall not be filled on a temporary basis for more than 
120 days, unless a nomination is pending before the Senate. Originally, 
Madam President, when the legislation was enacted in 1868, the period 
of time was only 10 days. And then in 1891 that period was extended to 
30 days. And in 1988 that period was extended to 120 days.
  It is precisely that time restriction on the filling of these vacant 
positions that is, I believe, the linchpin of this issue. Without that 
barrier, without the 120-day limitation on the length of time a vacancy 
may be temporarily filled, no President need ever forward a nomination 
to the U.S. Senate. Instead, the President--any President, Democrat or 
Republican--can staff the executive branch with ``acting'' officials, 
who may occupy the vacant position for months, or even years at a time, 
as the distinguished manager of the bill, Mr. Thompson, has already 
alluded to.
  In short, to eliminate the time constraint in the Vacancies Act, or 
to effectively eliminate it by tolerating noncompliance, is to wholly 
undermine the integrity of the U.S. Senate's constitutional advice and 
consent authority. So this is a serious matter.
  Yet, despite the seemingly plain language of this 130-year-old Act, 
the Department of Justice has challenged the force of the Act on the 
grounds that those provisions are not the only statutory means of 
filling a vacancy. In fact, for more than a quarter of a century, 
through Democratic administrations and Republican administrations, the 
Justice Department has simply refused to comply with the requirements 
of the Vacancies Act. Instead, the Department claims that the Act is 
somehow superceded by other statutes which give the Attorney General 
overall authority to run the Department of Justice.
  On December 17, 1997, I wrote to the Attorney General requesting 
clarification of the Department's position with respect to the 
Vacancies Act. Specifically, I wanted to know whether or not the 
Attorney General believed that this 130-year-old statute had any 
application to the Justice Department. On January 14 of this year I 
received a response to my letter in which the Department reiterated its 
position that the Attorney General's authority under sections 509 and 
510 of Title 28 ``. . . is independent of, and not subject to, the 
limits of the Vacancies Act.''

  For the benefit of those who have never read those two sections of 
Title 28, let me refer to the relevant language so that everyone will 
understand the fallacy of the Justice Department's argument. Section 
509 states that, with certain exceptions that are not at issue here 
today, ``all functions of other officers of the Department of Justice 
and all functions of agencies and employees of the Department of 
Justice are vested in the Attorney General. . . .'' Section 510, 
meanwhile, states that ``the Attorney General may from time to time 
make such provisions as he considers appropriate authorizing the 
performance by any other officer, employee, or agency of the Department 
of Justice of any function of the Attorney General.''
  Those two very broad, very general provisions--the first placing all 
functions of the Department under the control of the Attorney General, 
and the second allowing the Attorney General to delegate those 
functions--are being used to justify what amounts to an end run around 
the Vacancies Act, which is protective of the Senate's rights under the 
Appointments Clause of the Constitution.
  As I have noted, defiance of the plain language of the Vacancies Act 
is not an isolated case. In 1973, for example, the Department of 
Justice refused to admit that L. Patrick Gray, who had been appointed 
acting Director of the Federal Bureau of Investigation following the 
death of J. Edgar Hoover in May of 1972, was serving in that capacity 
in violation of the time limitation contained in the Vacancies Act. In 
1982, the Department's Office of Legal Counsel dismissed out of hand--
dismissed out of hand the restrictions of the Vacancies Act as simply 
``inapplicable'' to the Department--meaning the Justice Department. In 
1984, the Department again asserted that ``. . . the specific 
provisions of 28 U.S.C. Sec. 510 override the more general provisions 
of the Vacancies Act.'' And, in 1989, the Justice Department determined 
that the Vacancies Act ``. . . does not extinguish other statutory 
authority for filling vacancies and that the Act's limitations do not 
apply to designations made pursuant to those authorities.''
  Madam President, I submit that that position is untenable, and is 
untenable for two simple reasons: First, there is no historical basis--
absolutely none--for the suggestion that Congress ever meant sections 
509 and 510 of Title 28 to exempt the Department of Justice from the 
requirements of the Vacancies Act. And, secondly, the logical extension 
of the Department's argument--now get this, the logical extension of 
the Department of Justice's argument would render meaningless--
meaningless the entire advice and consent prerogative contained in the 
Appointments Clause, article II section 2, of the U.S. Constitution.
  Turning first to the Department's claim that sections 509 and 510 of 
Title 28 somehow preempt the Vacancies Act, I note that those 
provisions trace their origin to, and are a codification of, a 1950 
congressional action known as Reorganization Plan No. 2. As my 
colleagues may know, throughout the 1950's, Congress passed a series of 
plans designed to reorganize the various executive branch departments. 
The purpose of Plan No. 2 was to establish direct lines of authority 
and responsibility within the Department of Justice, and to give the 
Attorney General overall responsibility for the effective and economic 
administration of the Department.
  However, there is nothing--I repeat, absolutely nothing--in the 
language of Plan No. 2 that would indicate that it was ever meant to 
supersede the Vacancies Act. On the contrary, as the Senate's report 
which accompanied the measure made clear at that time, and I quote from 
that committee report, ``Plan No. 2 does not give to the Department of 
Justice any more powers, authority, functions or responsibilities than 
it now has.'' What could be more clear?
  Finally, it is worth noting that the general language contained in 
Plan No. 2 is virtually identical to language found in the 
reorganization plans for the Departments of the Interior, Labor, 
Commerce, and Health and Human Services. In fact, every one of the 14 
cabinet-level departments has these general provisions in its basic 
charter. Every one! Every one of the 14 cabinet-level departments. And 
it is precisely that common linguistic thread that leads to the second 
fatal flaw of the Justice Department's analysis.
  If we accept this fallacious argument--that these broad, housekeeping 
provisions somehow override, or are, in the Department's words, 
``independent of, and not subject to'' the more specific provisions of 
the Vacancies Act--then any executive branch department--any executive 
branch department whose functions are vested in the department's head, 
who, in turn, can

[[Page S11025]]

delegate those functions to subordinate officers, would be exempt from 
the provisions of the Vacancies Act. Of course, exemption from the 
Vacancies Act would then mean that an individual could be appointed to 
an advice and consent position for an indefinite period of time. Who 
thinks that the Founding Fathers meant for that to be?
  Consequently, to accept the position of the Department of Justice is 
to accept the position that the United States Senate--that is this 
body--with the concurrence of the House of Representatives, has 
systematically divested itself of its constitutional responsibility to 
advise and consent to Presidential nominations.
  Madam President, I wonder how many Senators believe that. I wonder 
how many of my colleagues are prepared to accept such a specious 
argument. How many of my colleagues truly believe that the Senate has 
simply handed over one of the most effective checks against the abuse 
of executive power? How many will agree that we have given away what 
the Supreme Court has rightly characterized as ``. . . among the 
significant structural safeguards of the constitutional scheme''? It 
was referring to the Appointments Clause in the Edmund v. United States 
case of 1997.
  I, for one, do not subscribe to that specious argument, nor do I 
believe that any other Senator would support such a contention.
  After all, don't we swear an oath, ``so help me God,'' to support and 
defend the Constitution of the United States, before we enter into 
office?
  At the same time, it is not fair to say the fault for this situation 
lies entirely in the executive branch; a part of it lies with us. An 
honest assessment of this matter will show that Congress must bear a 
good deal of the responsibility for its failure to aggressively demand 
strict compliance with the provisions of the Vacancies Act.
  For 46 years I have been in the Congress, and I have noticed a steady 
decline in the desire, the willpower, and the determination of Members 
of Congress to speak out in protection of the powers of the legislative 
branch.
  When I came here it wasn't like that, but more and more and more, it 
seems that there is an inability, or at least an unwillingness, on the 
part of Congress to stand up in support of its constitutional powers 
against the executive branch and those in the executive branch who 
would make incursions into and upon the constitutional powers of the 
Congress.
  Each of us, individually and collectively, must concede that this 
institution, this Senate, and the other body, have been less than 
strenuous in protecting the constitutional rights and powers of the 
legislative branch.
  Congress did, of course, make an attempt to assert the supremacy of 
the Vacancies Act when it last amended the statute some 10 years ago. 
That was the second year of the 100th Congress. I was majority leader 
in the Senate at that time, and on April 20, 1988, the Senate's 
Committee on Governmental Affairs, in a report accompanying a broader 
bill of which the Vacancies Act amendments were a part, stated thusly:

       . . . the present language, however old, makes clear that 
     the Vacancies Act is the exclusive authority for the 
     temporary appointment, designation, or assignment of one 
     officer to perform the duties of another whose appointment 
     requires Senate confirmation. The exclusive authority of the 
     Vacancies Act would only be overcome by specific statutory 
     language providing some other means for filling vacancies. As 
     such, the Committee expressly rejects the rationale and 
     conclusions of other interpretations of the meaning and 
     history of the Vacancies Act. . . .

  That was the language that was contained in the 1988 committee 
report.
  And yet, despite that language, it remains a fact that the Vacancies 
Act has not been complied with. As a result, the time has come, and the 
time is now, for Congress to take the matter into its own hands and 
address the situation foursquare, right head on. That is what we are 
attempting to do here. I believe that S. 2176, the Federal Vacancies 
Reform Act, is the vehicle that will accomplish that goal.
  This bill was introduced on June 16 by Senators Thompson, Thurmond, 
Lott, Roth, and myself. Three months before, on March 16, I had 
introduced S. 1761, the Federal Vacancies Compliance Act. Although my 
bill took a slightly different approach, I believe it is fair to say 
that it served as a basis for the bill before us today. I was 
privileged, through the courtesy of the distinguished chairman of the 
committee, Mr. Thompson, to be the lead witness at the March 18 hearing 
held by the Governmental Affairs Committee. Senator Levin was there; 
Senator Glenn was there; Senator Durbin was there; and other Senators, 
I believe.
  This legislation here today is the result of months of study, months 
of discussion, and months of difficult negotiation. By extending the 
time limitation on how long an acting official may serve, it is a bill 
that clearly recognizes the realities inherent in today's nominating 
process. It is a bill that goes out of its way to accommodate the 
inauguration of a new President by giving the new administration up to 
8 months to forward nominations, something not currently contained in 
the Vacancies Act. So we are going the extra mile in an effort to 
accommodate the problems of the executive branch. And it is a bill that 
works to encourage the timely forwarding of nominations. Most 
importantly, though, it is a bill which will, once and for all, put an 
end to these ridiculous, specious, fallacious arguments that the 
Vacancies Act is nothing more than an annoyance to be brushed aside.
  Madam President, it is time for this institution to state, in no 
uncertain terms, that no agency--no agency--will be permitted to 
circumvent the Vacancies Act, or any other Act for that matter, 
designed to safeguard our constitutional duties. We cannot, as James 
Madison warned in Federalist 48, simply rely upon the ``parchment 
barriers'' of the Constitution if we are to remain a coequal branch of 
this government.
  I urge my colleagues to reflect upon this issue, and, in so doing, to 
hopefully conclude, as I have, that what is at stake here is something 
much greater than the Vacancies Act. I hope all Senators will 
understand that, each time a vacancy is filled by an individual in 
violation of the Vacancies Act, yet another pebble is washed off the 
riverbank of the Senate's constitutional role, and that, as more and 
more of these pebbles tumble downstream, the bank weakens, until, 
finally, it collapses. But above all, I hope my colleagues will agree 
that we have a responsibility to the American people and to this 
institution, the Senate of the United States, to shore up that 
riverbank, to stop the erosion that has taken place, and to reverse the 
wretched trend of acquiescing on our constitutional duties that seems 
to have so ominously infected this Senate.
  Let us wait not a day longer in defending the Senate's rights of the 
Constitution. We are told by the great historian Edward Gibbon that the 
Seven Sleepers of Ephesus were seven youths in an old legend who were 
said to have fled to the mountains near Ephesus in Asia Minor to escape 
the prosecution of the emperor Decius, who reigned in the years 249-251 
A.D. Pursuers discovered their hiding place and blocked the entrance. 
The seven youths fell into a deep slumber, which was miraculously 
prolonged, without injury in the powers of life. After a period of 187 
years, the slaves of Adolius removed the stones to supply materials for 
some rustic edifice. The light of the sun darted into the cavern and 
awakened the sleepers, who believed that only a night had passed. 
Pressed by the calls of hunger, they resolved that Jamblichus, one of 
their number, should secretly return to the city to purchase bread. The 
youth, Jamblichus, could no longer recognize the once familiar aspect 
of his native country. His singular dress and obsolete language 
confounded the baker, and when Jamblichus offered to pay for the food 
with coins 200 years old and bearing the stamp of the tyrant Decius, he 
was arrested as a thief of hidden treasure and dragged before a judge. 
Then followed the amazing discovery, said Gibbon, that two centuries 
had almost elapsed since Jamblichus and his companions had escaped from 
the rage of a pagan tyrant. The emperor Theodosius II believed a 
miracle had taken place, and he hastened to the cavern of the Seven 
Sleepers, who related their story, following which they all died at the 
same moment and were buried where they had once slept.
  Madam President, the moral of the story, as far as I am concerned, is 
this:

[[Page S11026]]

 The Senate has slept on its rights for all too many years.
  Let us awaken to the threat posed by circumventions by the executive 
branch of the appointments clause and act to preserve the people's 
rights and the people's liberties, assured to them by the checks and 
balances established by our forefathers.
  In the proverbs of the Bible, we read: ``Remove not the ancient 
landmark, which thy fathers have set.'' The landmark of the 
appointments clause was established by our forefathers. We can suffer 
its removal only at our peril, at the Senate's peril, and at the 
people's peril. Let us, as Senators, not be found wanting at this hour.
  It would require more than ``a mere demarkation on parchment'' to 
protect the constitutional barriers between the executive and 
legislative departments. It will require nothing less than an ambition 
that counteracts ambition. Senators, vote for this legislation. Vote 
for cloture today so that we can move on with the legislation. In the 
words of Hamilton, in the Federalist No. 76, ``It would be an excellent 
check upon a spirit of favoritism in the President, and would tend 
greatly to preventing the appointment of unfit characters from State 
prejudice, from family connection, from personal attachment, or from a 
view to popularity. And, in addition to this, it would be an 
efficacious source of stability in the administration.''
  Madam President, I yield the floor.
  Mr. LEVIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, I yield myself 15 minutes.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Mr. LEVIN. Madam President, I, too, think we need to amend the 
Federal Vacancies Act, because the current act has too many loopholes 
and insufficiently protects the constitutional prerogative of the 
Senate to have Senate-confirmed officials serving in top positions in 
the executive branch. It is because I believe we should amend the 
Federal Vacancies Act that I voted to report the bill out of committee 
and, along with, I think, all or most of our colleagues, voted to 
proceed to Senate consideration of the bill.
  But I will oppose cloture on the bill at this time, because if we 
adopt cloture now, it would mean that relevant amendments could not be 
considered. After cloture, only what are called germane amendments, as 
we all know, can be considered. That is a very narrow and a very strict 
rule. And for us to preclude the possibility of relevant amendments, 
relevant to this subject, being offered, without the opportunity even 
to offer those amendments, it seems to me, does not do justice to this 
subject.
  I commend Senator Byrd and Senator Thompson for bringing this issue 
to our attention. Senator Byrd was the witness who appeared before our 
committee--and the Chair is also a distinguished member of this 
committee--and brought to our attention, very forcefully, the current 
loopholes that exist, at least the alleged loopholes that exist, in the 
Federal Vacancies Act.
  These loopholes have been used by Presidents--I think inappropriately 
used. And surely Senator Byrd has laid out a very powerful case in this 
bill. And Senator Thompson and others laid out a very powerful case 
that we should close those loopholes. But we should close those 
loopholes considering relevant amendments in the process. And obtaining 
cloture immediately upon proceeding to the consideration of the bill 
will preclude the consideration of relevant amendments.
  The bill before the Senate would make several important changes to 
the current Vacancies Act to close a number of those loopholes. First, 
it would make clear that the act is the sole legal statutory authority 
for the temporary filling of positions pending confirmation. Both 
Senator Byrd and Senator Thompson have stated forcefully why it is so 
important for us to close that loophole. In our judgment, that loophole 
does not exist. I think in the opinion of probably most Senators that 
loophole does not exist. But, nonetheless, whether it is a real one or 
an imaginary one, it has been used by administrations in order to have 
people temporarily fill positions pending confirmation for just simply 
too long a period of time, which undermines the Senate's advice and 
consent authority.
  So the first thing this bill would do would be to make clear that the 
act, the Federal Vacancies Act, is the sole legal statutory authority 
for temporarily filling positions pending confirmation. Agencies would 
no longer be able to claim that their organic statutes trump the act 
and empower them to have acting officials indefinitely.
  Second, the act's time period authorizing an individual to be acting 
in the vacant position would be increased to 150 days from the date of 
the vacancy. The current act provides for 120 days, and it is unclear 
on whether the period runs from the date of the vacancy or the date a 
person assumes the acting position.
  Finally, the bill would provide for an enforcement mechanism for 
violations of the time period. And that is really an important point, 
because without some kind of an enforcement mechanism, these violations 
can take place without being corrected.
  So the enforcement mechanism provides that if no nomination is 
submitted within the 150-day period, the position would have to remain 
vacant and any duties assigned just to that position by statute could 
be performed only by the agency head. As soon as a nomination is 
submitted, the bill provides that an acting official could then assume 
the job temporarily until the Senate acts on the nomination.
  While the staff was making efforts to try to negotiate a unanimous 
consent agreement and perhaps a managers' amendment for Senate 
consideration of this bill, a cloture motion was filed. In my judgment, 
it was filed prematurely. And now if, indeed, this cloture motion 
passes, amendments which are relevant to this subject, important 
amendments, relevant to this subject, would not be subject to 
consideration and debate by the U.S. Senate.
  Again, I am one who would like very much to see a reform of the 
Vacancies Act and to see that reform enacted in this Congress. Senator 
Byrd and Senator Thompson and others deserve the thanks of all of us 
for bringing the Senate's attention to this issue. Senator Byrd, again, 
took the lead in prompting the Governmental Affairs Committee to hold a 
hearing on this topic last March and pointed out the Justice 
Department's regrettable practice of having persons serve as acting 
officials in top-level positions for significant periods of time 
without Senate confirmation.
  By having acted, officials serve in this way; and ignoring the 
purpose of the existing Vacancies Act, the Department delays or avoids 
Senate confirmation.
  The Vacancies Act was originally enacted in 1868. Its whole purpose 
is to encourage the President to submit nominations in a timely 
fashion. In 1988, the Governmental Affairs Committee amended the act to 
preclude an agency--in particular, the Justice Department--from 
avoiding Senate confirmation and the requirements of the Vacancies Act 
by arguing that the act did not apply to their Departments. 
Unfortunately, the technical language that the committee used back then 
to accomplish this didn't do the job, at least in the eyes of the 
Department of Justice, and some agencies--and the Department of 
Justice, for one--have continued to operate outside of the intent of 
that law.
  The bill before the Senate, then, attempts to rein in agencies like 
the Justice Department. It also attempts to set clearer guidelines on 
what agencies can and can't do with respect to vacancies, and it 
creates an action-enforcing mechanism that will encourage Presidents to 
act promptly on submitting nominations.
  Now, in the eyes of many Members of this body, the Senate also has an 
important responsibility to act promptly on the nominations once they 
are received. That is why it would be relevant to debate the question 
as to whether or not a bill which amends the Vacancies Act to force the 
President to make timely nominations--in order to evade the clear 
constitutional role of the Senate in advising and consenting to such 
nominations--that such a bill could also appropriately address the 
Senate's duty to act on such nominations once they are submitted. That 
doesn't mean approve the nominations, that simply means to act on those 
nominations.
  When we take up this subject of nominations, we need a bill which 
will

[[Page S11027]]

ensure that nominations are made in a timely way, but we also have to 
avoid crafting an unrealistic bill that could leave many key positions 
vacant. I don't think any of us want to do that. That is why this bill 
extends the time that a new administration would have in order to fill 
these positions without triggering the action-enforcing mechanism.
  We need to recognize, however, that this vetting process for 
nominees--the exploratory process, the FBI checks--has become much more 
complicated and complex than it was even a decade ago when the act was 
last amended. Increasingly adversarial confirmation proceedings have 
required that background investigations and other steps in the vetting 
process are more thorough and lengthy.
  We asked the Congressional Research Service to look at the length of 
time it took for the first Clinton administration to make nominations 
and the time for Senate confirmation of those nominations, and to 
compare those numbers to the time it took the first Reagan 
administration in 1981 to make those nominations and for the Senate to 
act on those nominations. The results reflect that both the nomination 
and the Senate confirmation process are simply taking longer. In 1981, 
President Reagan took an average of 112 days to submit a nomination; 
President Clinton, in 1993, took an average of 133 days to make a 
nomination.
  In addition to Presidents taking longer because the process simply 
takes longer, the Senate is also taking much longer to confirm 
nominees. In 1981, the Senate took an average of 30 days to confirm 
nominees; in 1993, the Senate took an average of 41 days to confirm 
Clinton administration nominees. So the reality that it takes a greater 
period of time for these nominations to be made should be reflected in 
the bill. It is reflected by a 30-day extension for the time period, 
which we have all referred to. Whether or not that is enough is subject 
to debate, and there will be amendments on that subject as well.
  As I have indicated, in addition to crafting a bill that reflects 
today's more adversarial nominations climate, there are many who feel 
strongly that we in the Senate should acknowledge our own 
responsibility to act on nominations that we receive from the 
administration. We, in the Senate, rightfully want to protect our 
constitutional prerogative to advise and consent on nominations and not 
to have positions filled by people whose nominations have not been 
confirmed by the Senate. By the same token, we should discharge our 
duties in a prompt matter once those nominations are submitted to us.
  Currently, there are many, many examples of the Senate failing, both 
in committee and on the floor, to act on nominations. We are 
appropriately critical of the administration for not sending up 
nominations in a timely way, but it is also appropriate for us as an 
institution to act one way or the other on those nominations once they 
are received. It is the desire of some of our colleagues to offer 
amendments that would require the Senate to act in a timely fashion on 
nominations, both by considering them in committee and by requiring a 
vote on them on the Senate floor. Again, not a positive vote 
guaranteed, just a vote.
  Madam President, I think this bill moves us in the right direction. 
It is a bill that would close loopholes which many of us did not think 
even existed but which are being utilized by administrations to make 
appointments of these temporary people for long periods of time without 
submitting the nominee's name to the Senate for advice and consent. 
There are many provisions about which concerns have been raised, and it 
is perfectly appropriate, I believe, for those issues to be debated and 
to be resolved here on the Senate floor.
  I also would plan on offering an amendment to provide for a cure of a 
violation; that is, to allow an official to temporarily act in a vacant 
position once a nomination has been submitted, even if that nomination 
is submitted during a long recess. The bill is not clear, in my 
judgment, as to what happens when the 150-day period runs prior to, for 
instance, a sine die recess but when the intention to nominate a 
particular person is submitted to the Senate to the extent that is 
permitted during a sine die recess.
  It would seem to me that, just as the bill appropriately holds the 
150-day period when a nomination is submitted and permits somebody to 
serve in that capacity where there is an intent to nominate, so if the 
150-day period happens to run out before a recess but the intention to 
nominate a particular person is submitted to the Senate during that 
recess, then also a temporary appointment ought to be permitted.
  Madam President, I will offer an amendment at an appropriate time to 
have a person as an acting official permitted after the 150-day period 
has expired, when a recess occurs and the nominee or a nominee's name 
is submitted to the Senate during that recess.
  There are a number of concerns which a number of our colleagues have 
raised with the bill as drafted, and some of these concerns, again, 
would be reflected in relevant amendments but which are not technically 
germane and would be precluded and foreclosed if cloture were invoked.
  For example, the bill restricts who can be an acting official, in 
case of a vacancy, to a first assistant or another advice and consent 
nominee. That is too restrictive a pool of acting officials and does 
not give this administration, or any administration, the ability to 
make, for instance, a long-time senior civil servant within the agency 
an acting official. Such senior civil servants may be the best 
qualified to serve as acting officials. First assistants may not exist 
for all vacant positions. Further, designating another advice and 
consent nominee to serve as an acting official takes that person away 
from the duties of their regular job. The category of persons who can 
act needs to be made larger, in my judgment, and in the judgment of 
others who will be offering amendments along this line--who, at least, 
want to offer amendments along this line, assuming that they are 
afforded the opportunity to do so.
  This provision that I have referred to, the restriction that I have 
referred to, may be operating particularly harshly at the start of a 
new administration when many vacancies exist. At such times, not many 
first assistants may be holding over from previous administrations. 
Therefore, the first assistant slots may be empty, also. Similarly, few 
other Senate-confirmed officers will exist that the President could 
choose from to serve in a vacant position. One of our colleagues 
intends to offer an amendment to allow qualified civil servants to be 
acting officials, also. And again, this amendment, like some of the 
other amendments that are sought to be offered here, may not be 
technically germane and can be foreclosed after cloture.
  I don't think it is appropriate that relevant amendments should be 
foreclosed. That is why I am somebody who believes we need to amend the 
Federal Vacancies Act in order to close the existing loophole, and in 
order to protect the constitutional prerogative of the President, and I 
also want to protect the prerogative of Senators to offer relevant 
amendments. That is the issue we are going to be voting on--whether or 
not Senators ought to have an opportunity to offer relevant amendments, 
or whether they should be precluded from doing that by cloture being 
invoked so prematurely, when a bill has just been brought to the floor, 
and then being denied the opportunity to offer amendments on issues 
that are clearly relevant to this issue.
  So the bill is an important one. The issue is an important one. I 
think we are all in the debt of the sponsors for bringing this bill to 
the floor. It is appropriate that the Senate debate this bill and that 
Senators who have relevant amendments, although not technically 
germane, be offered the opportunity to offer those amendments, have 
them voted on, and to have these issues, some of which I have 
discussed, resolved.
  I hope we will vote against cloture and that we will proceed to 
continue on the bill and have people offer amendments--hopefully 
relevant amendments--and to try to work out a unanimous consent 
agreement to see if we can't come up with a list of relevant amendments 
that people could offer on this subject so that they would not be 
foreclosed, being in a postcloture situation, from offering amendments 
that are relevant to this important issue, but not technically germane.

[[Page S11038]]

  I yield the floor.
  Mr. THOMPSON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Tennessee is recognized.
  Mr. THOMPSON. Madam President, I yield the Senator from South 
Carolina 10 minutes.
  The PRESIDING OFFICER. The Senator is recognized for 10 minutes.
  Mr. THURMOND. Madam President, I rise today in support of cloture on 
S. 2176, the Federal Vacancies Reform Act. This legislation should be 
entirely nonpartisan because it is essential to the advice and consent 
role of the Senate.
  Recent Administrations, both Republican and Democrat, have failed to 
send nominations to the Senate in a timely manner. Instead, they have 
appointed people to serve in an acting capacity for long periods of 
time without seeking confirmation.
  This is a matter of great significance. One of the primary fears of 
the Founders was the accumulation of too much power in one source, and 
the separation of powers among the three branches of government is one 
of the keys to the success of our great democratic government. An 
excellent example of the separation of powers is the requirement in 
Article 2, Section 2 of the Constitution that the President receive the 
advice and consent of the Senate for the appointment of officers of the 
United States. As Chief Justice Rehnquist wrote for the Supreme Court a 
few years ago, ``The Clause is a bulwark against one branch 
aggrandizing its power at the expense of another branch.''
  The Vacancies Act is central to the Appointments Clause because it 
places limits on the amount of time that the President can appoint 
someone to an advice and consent position in an acting capacity without 
sending a nomination to the Senate. For too many years, the Executive 
Branch has failed to comply with the letter or the spirit of the law.
  I raised this issue for the first time this Congress in April of last 
year at a Justice Department oversight hearing. At the time, almost all 
of the top positions at the Justice Department were being filled in an 
acting capacity. They included the Associate Attorney General, 
Solicitor General, Assistant Attorney General for Civil Rights, 
Assistant Attorney General for the Criminal Division, and Assistant 
Attorney General for the Office of Legal Counsel.
  President Clinton allowed the Criminal Division of the Justice 
Department to languish for over two and one half years before 
submitting a nomination. The government had an Acting Solicitor General 
for an entire term of the Supreme Court. Most recently, the President 
installed Bill Lann Lee as Acting Chief of the Civil Rights Division in 
blatant disregard of the Judiciary Committee's decision not to support 
his controversial choice. Mr. Lee has been serving as Acting Chief for 
ten months, and the President apparently has no intentions of 
nominating someone the Judiciary Committee can support.
  Let me be clear. The issue is not about any one President or any one 
nominee. It is about preserving the institutional role of the Senate. A 
Republican President has no more right to ignore the appointments 
process than a Democrat President.
  I responded to this problem by introducing a resolution about one 
year ago. However, I soon realized that a total rewrite of the 
Vacancies Act with an enforcement mechanism would be required to force 
the Executive Branch to follow the law in this area. Thus, earlier this 
year, I sponsored a bill on behalf of myself and the Majority Leader to 
rewrite the law regarding vacancies.
  Today, I am pleased today to be an original cosponsor of S. 2176, the 
bill that we are debating today. It contains the two primary objectives 
that I outlined when I testified before the Governmental Affairs 
Committee earlier this year: the need to totally redraft the Vacancies 
Act and to provide a mechanism for enforcement. Senator Thompson has 
done a fine job in drafting S. 2176 and in shepherding it through the 
Governmental Affairs Committee. He has worked hard to create a 
bipartisan consensus for this legislation. In that regard, I am pleased 
that my distinguished colleague who is an expert on the institution of 
the Senate, Senator Byrd, is an original cosponsor of this legislation.
  S. 2176 would correct the Attorney General's misguided interpretation 
of the current Vacancies Act. In fact, she practically interprets the 
Act out of existence. Based on various letters to me, it is clear that 
if her interpretation were correct, no department of the Federal 
government would be bound by the Vacancies Act. There would be no 
limitation on the amount of time someone could serve in an acting 
capacity. There would be no limitation on how long the advice and 
consent role of the Senate could be ignored.
  Additionally, the bill has an enforcement mechanism, while the 
current law has none. Because there is no consequence if the Vacancies 
Act is violated today, the Executive Branch simply ignores it. This 
change is essential for the Act to be followed in the future. The bill 
provides that the actions of any person serving in violation of the 
Vacancies Act are null and void, until a nominee is forwarded. There 
can be no argument that this will paralyze an office because the 
President can make the office active by simply forwarding a nomination.
  It is also important to note that the bill gives the President an 
extra 30 days to submit a nomination. It extends the time from 120 days 
to 150 days, with even more time at the start of the administration. 
These were concessions to the Executive Branch. Indeed, the bill 
overall makes no more change than necessary in the Vacancies Act to 
make sure it will be followed in the future.
  The question before us is cloture on S. 2176. We should invoke 
cloture now and move to any amendments that members wish to propose. 
Cloture on the motion to proceed was easily invoked last week in a 
completely bipartisan vote, and I hope we can get a similar consensus 
today.
  Madam President, we must act in a bipartisan fashion to preserve the 
advice and consent role of the Senate. We must require any 
administration in power, whether Democrat or Republican, to respect 
this Constitutional role of the Senate. As the Supreme Court has 
stated, ``The structural interests protected by the Appointments Clause 
are not those of any one branch of Government but of the entire 
Republic.'' By passing the Vacancies Reform Act, we can reaffirm the 
separation of powers for the sake of the Senate and the entire 
Republic.
  Madam President, I yield the floor.
  Mr. LEVIN. Madam President, I yield 15 minutes to the Senator from 
Illinois.
  The PRESIDING OFFICER. The Senator from Illinois is recognized for 15 
minutes.
  Mr. DURBIN. Thank you, Madam President.
  I thank the Senator from Michigan for yielding.
  Madam President, I rise today to oppose this effort to bring to a 
close debate on the Vacancies Act reform legislation, S.2176. I urge my 
colleagues to join me in voting against cloture.
  Without so much as a blink, a breath, or a blush, a cloture motion on 
the bill itself was immediately filed last Thursday morning on the 
heels of the Senate's agreement to proceed to this bill. This quick 
flinch maneuver is an attempt to deny Members the opportunity to offer 
meaningful relevant amendments to improve this legislation, such as 
those I intend to pursue to address the Senate's responsibility to act 
expeditiously on pending nominations.
  Before I outline the importance of assessing both sides of the 
process and outline my specific reservations about the bill as 
presently drafted, I wish to emphasize that I share the convictions and 
concerns of the sponsors, notably Senators Byrd, Thurmond, and 
Thompson, about the critical need to preserve and protect the 
constitutional prerogative of the Senate to advise and consent to 
Presidential nominations to executive branch positions. I am sure that 
I am not alone in this view.
  I appreciate the sponsors' zeal to remedy what has grown to be, 
numerous instances and examples throughout the government, of outright 
challenges to Senate authority by ignoring the Vacancies Act. There has 
been flagrant and contagious disregard for the application of the 
existing law as the sole mechanism for temporarily filling advise and 
consent positions while awaiting the nomination and confirmation of the 
official candidate.

[[Page S11029]]

  I wholeheartedly concur that this law needs clarification so that 
moves to end-run its application are halted. The bill as advanced by 
the Governmental Affairs Committee laudably addresses this exclusivity 
question.
  Thus, I do not oppose efforts to bolster the Vacancies Act as the 
exclusive mechanism (with limited and explicit exceptions) for the 
president to designate officials to temporarily fill vacancies in 
positions requiring Senate confirmation.
  Unfortunately, in its current form this bill goes well beyond that 
justifiable but limited goal in several respects. Moreover, it fails to 
go far enough to address the Senate's duty to timely act on 
nominations.
  While the Administration may well bear some responsibility for the 
slow pace of nominations, I am dismayed that the Senate would want to 
so severely restrict the ability to fill vacant positions temporarily 
and to conduct the people's business while at the same time impeding 
the nominations process and confirming nominees at a snail's pace.
  The Senate bears partial responsibility for the time it takes to 
nominate officials for Senate confirmed positions. This Congress has 
subjected the Administration's nominees to unprecedented scrutiny, 
using almost any prior alleged indiscretion--no matter how trivial--by 
a nominee as an excuse to delay or prevent a vote.
  Senators have also interjected themselves into the President's 
nominations process to an unparalleled degree. As a result, that front-
end process--the selection, recruitment, and vetting of candidates--
takes longer than ever before.
  The nomination and confirmation process, it has been observed, is one 
of ``the President proposing, the Senate disposing.'' If the Senate 
expects adherence to the rigid parameters this bill would impose on 
advancing candidates, we as its Members need to be ready and willing to 
diligently consider these candidates for public office and take prompt 
and deliberate action to confirm or reject them.
  The Senate has frequently declined to exercise its advice and consent 
responsibility in a timely and appropriate manner. Too often, 
nominations die in Committee, languish interminably on the Executive 
Calendar, or simply take months or years to move through this Chamber.
  Just as the President has a responsibility to forward nominees to the 
Senate in a timely fashion, we in the Senate have a concomitant 
obligation to discharge our constitutional prerogative of advice and 
consent on those candidates in an efficient and expeditious fashion.
  We cannot simply confront practical deficiencies in the front-end 
phase of the process for recruiting and evaluating qualified candidates 
and ignore our own responsibilities.
  We owe it not only to the Executive, but to the American public, to 
offer--not withhold--our advice and where appropriate, our consent.
  I have filed and certainly hope to have an opportunity to offer some 
relevant amendments designed to address those instances of dilatory 
Senate Committee processing and floor inaction once a nominee is 
advanced to the calendar.
  One amendment would provide that any nomination submitted to the 
Senate that is pending before a Senate committee for 150 calendar days 
shall on the day following such 150th day, be discharged and placed on 
the Senate executive calendar and be considered as favorably reported.
  Another amendment would require the Senate to take up for a vote any 
nomination which has been pending on the Executive Calendar in excess 
of 150 days. Such Senate consideration must occur within 5 calendar 
days of the 150th day. In effect, it creates an end point after which 
we can no longer hold up a nominee.
  I am not suggesting that we would give our consent to all of these 
nominees. I am basically saying that this process should come to a 
close. The Senate should vote. It should make its decision.
  If we want to reasonably time-limit the front end of the process--
with which I do not disagree--and promptly fill vacancies, we need to 
be equally willing to build some finality into the back-end of the 
process and impose some time limits on our own consideration of these 
candidates.
  The first problem I find with this bill is that filling positions in 
the Government requires time far longer than that specified in this 
bill.
  I have an amendment which suggests increasing the 150-day period to 
210 days. I am sure people are wondering, if they are following this 
debate, why it would take so long for any kind of process to review a 
nominee. Well, as it turns out, the average number of days that a 
vacancy exists prior to a Senate nomination for the White House is 313 
days. What could possibly take 313 days in investigating the 
qualifications of an individual to fill the job?
  Consider all of the things that are going to be investigated. Not 
only the lengthy forms the individual must fill out, ethics 
disclosures, financial statements, fingerprints and the like, but also 
an FBI investigation, a Federal Bureau of Investigation report on that 
person, the opportunity for groups to contact the White House and say 
that they either oppose or support the individual, the opportunity for 
Members of Congress to come forward and suggest to the administration 
that they either support that nominee or they oppose it. And as it 
turns out, some of these things such as an FBI report may not happen as 
quickly as some people imagine. We have heaped on that agency 
additional responsibilities every year. We entrust them with very 
important jobs. We tell them that we want them to fingerprint and make 
certain that those who want to be citizens of the United States, in 
fact, have no criminal record in any foreign country. That is a valid 
question, but it is an additional administrative responsibility.

  The list goes on and on and on. As a consequence, when the 
administration comes to this agency, and it is only one example, and 
asks for a timely review of an individual nominated for a position, 
they sometimes have to wait in line. And while they wait the clock is 
ticking.
  And consider this as well. As a result of this legislation, saying 
the administration shall only have 150 days, what if in the midst of 
this process--say, for example, 4 or 5 months into the process--the 
administration reaches a conclusion that the individual should not go 
forward and the nomination should not be sent to the Senate. Does the 
clock start to run again? No. The clock continues to run 150 days, so 
the new nominee, starting over going through all these processes, 
trying to clear all these hurdles, is still burdened by the original 
clock ticking at 150 days. I don't think it is realistic. I don't think 
it is fair. Merely adding 30 additional days to the current 120-day 
timeframe within which an acting official may temporarily perform the 
duties and functions of the vacant office unless the Senate has 
forwarded a nominee to the Senate within that span is impractical. It 
is unrealistic, and I do not believe it is adequate.
  Mr. BYRD. Madam President, will the Senator yield?
  Mr. DURBIN. I will be happy to yield.
  Mr. BYRD. The Senator from Illinois has suggested an amendment, Madam 
President, as far as I am concerned, I could accept. Why not let us 
invoke cloture; that amendment is certainly a germane amendment, and 
have the Senator put it up for action by the Senate? I am one who would 
vote for it.
  Mr. DURBIN. I thank the Senator from West Virginia, and I certainly 
appreciate those comments. But we are told by the Senate 
Parliamentarian that the amendment would be relevant but not germane, 
and therefore any action for cloture which would put a burden on the 
Senate to act within a certain period of time on nominees that are sent 
would be wiped away, or could be wiped away by this cloture motion.
  Mr. BYRD. Madam President, will the Senator yield further?
  Mr. DURBIN. I will be happy to yield.
  Mr. BYRD. I may have misunderstood the Senator. I thought the Senator 
was suggesting that the 150 days is not enough and that he would like 
to see 30 additional days. That would certainly seem to be germane as 
far as I am concerned.
  Mr. DURBIN. If the Senator will allow me to respond, that amendment 
is germane. The only other amendments which would impose a 
responsibility on the Senate to move a nominee out of committee within 
150 days after it is sent from the White House or

[[Page S11030]]

to move it off the Executive Calendar for a vote within 150 days, I am 
told by the Senate Parliamentarian, may not be allowed if cloture is 
invoked.

  Mr. BYRD. Yes. I expect the Parliamentarian is right on that. I would 
not argue with that, nor would I probably support it.
  If the Senator will allow me, the Constitution doesn't say that the 
Senate has to confirm the nominees. It simply says the President cannot 
have the full responsibility and power himself to name people to 
important positions. This is a matter that has to be shared under the 
Constitution between the President and the Senate. This constitutional 
provision--the appointments clause--I am trying to protect today is 
being given the runaround by the Justice Department and several other 
Departments, and I want to protect that constitutional power that is 
given to the Senate. As to whether or not the Senate acts on 
nominations, the Constitution doesn't require the Senate to act, but I 
think that the Senate does act, and would continue to act, on 
nominations within a reasonable period of time.
  Having been the majority leader of the Senate during three different 
Congresses, I can say to the distinguished Senator that when I was 
majority leader we had nominations left on the calendar at the end of a 
Congress, in all three of the Congresses in which I served as majority 
leader. When we adjourned sine die that Executive Calendar was not 
wiped clean. We all did the best we could, but we did leave some 
nominations on the calendar. And I certainly share the Senator's 
feeling that the Senate ought to act expeditiously, in a reasonable 
fashion, but when it comes to requiring the Senate to act on all 
nominations, I don't think the Constitution requires that. And I might 
have to part company with the Senator at that point. But some of his 
other suggestions, I think, are very well made.
  Mr. DURBIN. I thank the Senator from West Virginia. It pains me to 
believe we would have a difference of opinion, but those things do 
occur. I am certain the Senator as majority leader did his 
constitutional responsibility--there has never been a doubt about 
that--and also acted with dispatch in a timely manner.
  I think the Senator makes a good point. We not only want to protect 
the clear constitutional responsibility and right of the Senate in this 
process, we want to bring the best men and women forward to continue 
serving our Government, and we want it all done in a timely fashion. My 
concern with this bill is it addresses one side of the equation. It 
says to the executive branch, you have to move in a more timely fashion 
to bring these men and women to the Senate for consideration. If we are 
clearly looking for filling vacancies in a timely fashion, that is only 
half the process. Once the nomination is brought to the Senate, we 
should move in a timely fashion, too. Otherwise, using the old 
reference to equity, we don't come to this argument with clean hands, 
and that is why I think there should be some symmetry here in the 
requirement of the executive as well as the legislative branch.
  Mr. BYRD. Madam President, will the Senator yield?
  Mr. DURBIN. I will be happy to yield.
  Mr. BYRD. And I thank him for yielding. The Senator, as I think I 
understand, suggested that if we are going to deal with one part of the 
equation, namely, the nominating process by the executive, and protect 
ourselves in that regard, we ought to be equally interested in dealing 
with the other half of the equation by requiring action by the Senate 
to confirm or reject nominees.
  May I with great respect suggest--and I am doing this for the record. 
I am sure I am not ahead of the Senator in thinking this--I am trying 
to address the constitutional side of the equation and stop the 
administration, not only this administration but also previous 
administrations, from conducting a runaround of the constitutional 
advice and consent powers of the Senate. I am suggesting we deal with 
that constitutional side of the equation.
  Now, the other side, which the distinguished Senator mentions, if he 
will pardon my saying so, I think what he is talking about is the 
political side of the equation. That part is not included in the 
Constitution. The Constitution doesn't require the Senate to act on any 
nomination. But that is the political side. I would like to deal with 
the constitutional side, and that is the purpose of this legislation. 
And then we can do the best we can on dealing with the political side. 
The Senator is quite right; neither side comes into this matter with 
perfectly clean hands. That is an old equity maxim.
  It reminds me of Themistocles who happened to say, one day, ``that he 
looked upon it as the principal excellence of a general to know and 
foresee the designs of the enemy;'' Aristides answered, ``that is 
indeed a necessary qualification; but there is another very excellent 
one, and highly becoming a general, and that is to have clean hands.'' 
The same thing would apply here. Neither party has clean hands when it 
comes to moving all nominations sent by a President to an up or down 
vote. As majority leader during the Presidential years of Mr. Carter 
and again during the 100th Congress, I can remember that the calendars 
were not always cleared of items that had been reported by committees 
when adjournments sine die occurred. I hope that we will not get bogged 
down in this way about a purely political matter when a far more 
important constitutional matter, important to the prerogatives of the 
Senate in the matter of appointments is at hand.
  And let me state to the Senator the number of nominees that were left 
on the executive calendar when I was majority leader, at the time of 
sine die adjournment.
  When I was majority leader--I will just take one Congress, for 
example, the 100th Congress.
  The PRESIDING OFFICER. The time of the Senator from Illinois has 
expired.
  Mr. BYRD. Mr. President, I ask unanimous consent the Senator have an 
additional 5 minutes.
  Mr. LEVIN. Reserving the right to object, and I surely hope I will 
not, I wonder how much time remains.
  Mr. BYRD. And that that time not be charged against either side.
  The PRESIDING OFFICER. The Senator from Michigan has 21 minutes; the 
Senator from Tennessee has 9 minutes. Is there objection to the 
request?
  Mr. LEVIN. The modified request, we have no objection to.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. I will just say this. To show that we all sometimes fail to 
have clean hands, when I was majority leader in the second session of 
the 100th Congress--I don't mind saying this--the civilian nominations 
totaled 516, including 112 nominations carried over from the first 
session; 335 of these were confirmed, 170 were unconfirmed, and 11 were 
withdrawn. So, this is a failing that can be ascribed to both Democrats 
and Republicans when they are in control of the Congress.
  But, yet, I come back to my original premise; namely, that the 
Constitution did not require me to call up all those nominations off 
the calendar. It didn't say I had to do that. But it did say, with 
respect to nominations, that appointments to vacancies were to be 
shared by the President and the Senate, and that is what this bill is 
contemplating to enforce and what I am fighting for today.
  I thank the distinguished Senator.
  Mr. DURBIN. I thank the Senator from West Virginia.
  I would just say that I can't believe that I hurried back from 
Chicago this morning to come to the floor of the U.S. Senate to 
actually engage my friend and fellow Senator from West Virginia in any 
debate about the Constitution. I plead nolo contendere. I am not able 
to join you in that. And I can't even reach back in Greek or Roman 
history for any kind of solace or defense.
  I am not sure who the author was, it could have been a Greek or 
Roman, maybe a West Virginian, or even an Illinoisan, who once said the 
profound statement, ``What is sauce for the goose is sauce for the 
gander,'' and that is what I am attempting to argue here. That is, if 
we are going to impose on the executive branch a requirement to produce 
the nominee in 150 days, or if the time goes beyond that to suffer the 
possibility of not having an acting person in that slot, then we should 
accept the responsibility on the Senate side as well, to act in a 
timely manner on these nominees.

[[Page S11031]]

  Mr. BYRD. Mr. President, will the Senator yield? I hope he will 
forgive me.
  Mr. DURBIN. I will be happy to yield.
  Mr. BYRD. I am not here to engage in challenging his statements. He 
is one of the fine Members of this Senate; one of the newer Members, in 
a way. He served a long time in the House of Representatives. He comes 
to the Senate well prepared to be a good Senator, and he is a good 
Senator.
  But, again, I am concerned about that part of the responsibility 
which the Constitution places on both the executive and the 
legislative. I think the legislative is being given the run-around by 
the Judiciary Department. It has not just been during this 
administration. It has been, as I say, going on for over 25 years, and 
this is an opportunity for us to correct that, I hope we would vote for 
cloture and perhaps some of the Senators' amendments--which are 
certainly worthy of consideration and probably of adoption, some of 
them--could be given a chance to be offered and debated. I hope we 
would invoke cloture, indeed, to have an opportunity to do that.
  Mr. DURBIN. I thank the Senator from West Virginia.
  I think what we have found is that rarely do we visit this rather 
obscure area of the law, the Vacancies Act. I am hoping in this 
visitation on one side, that we have some balance and impose 
requirements on the Senate to act in a timely fashion, as we impose a 
requirement on the executive branch to report a nominee in a timely 
fashion. But I also hope the time periods that we choose are realistic. 
I think anyone involved in this process at any level understands that 
when a person's name comes up in nomination, they are subjected to far 
greater scrutiny than ever before. It discourages many good people from 
even trying public service, and I am sure that many have been 
disappointed.
  But let us, I hope, during the process of this debate, be sensitive 
to this reality. And it is a reality that, under the bill, the meter 
keeps on ticking even when this scrutiny is underway, even if it is 
interrupted and a new nominee is proposed for a post. And if, in fact, 
at 150 days the nomination is not forthcoming, then, as I understand 
this bill, we would preclude the President from filling the spot with 
an acting person. That, to me, is a sort of decision which on its face 
makes sense but may have some practical ramifications. It may affect 
the ability of the administration to choose the person most able to 
handle a matter that involves public health, public safety, or the 
national defense. I also think that this bill too narrowly restricts 
who can function in an acting capacity.
  The PRESIDING OFFICER. The additional 5 minutes of the Senator has 
expired.
  Mr. LEVIN. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator from Michigan has 21 minutes 
remaining.
  Mr. LEVIN. I will be happy to yield an additional 5 minutes to the 
Senator from Illinois.
  Mr. DURBIN. Mr. President, I am concerned this bill too narrowly 
restricts those who can function in an acting capacity. I am worried 
that, in fact, the administration will not be able to pick that person 
best able to fill the spot, to conduct the duties, and to perform the 
functions of the office in the best way. I don't think that serves our 
country well. This bill could preclude the President from naming the 
most qualified person to serve as an acting officer. I do not think 
that will help us in any way.
  Third, while it would not affect this President, experience has shown 
that at the beginning of a new administration filling positions in the 
Government requires far longer than specified in this bill. At the 
outset of any new administration, the President must nominate 
individuals to at least 320 positions in 14 different executive 
departments. The new President cannot possibly make all the required 
nominations within the 240 days allowed by this bill.
  In 1993, when the nominations process was, if anything, simpler than 
today, the new administration was able to forward only 68 percent of 
the nominees within the first 240 days. Unless this time period is 
changed, the next administration could face departmental shutdowns 
because of this bill.
  The enforcement mechanism of this bill, which establishes that no one 
can perform the functions and the duties of the vacant office, is a 
sanction which would lead to administrative immobilization.
  I would like to also note it is ironic that we are here today 
debating whether to close off consideration of a measure designed to 
limit how long an acting official may temporarily fill an executive 
branch vacancy and legally perform the duties while awaiting an 
advancement of a nominee. The impetus is on the President to send 
nominees more expeditiously; yet with acting officials in many of these 
agencies, the work can continue. Such is not the case with the sister 
branch of Government which has eluded our debate here today, the 
Judiciary. In fact, a more serious crisis sits on the doorstep of the 
U.S. Senate, one that has been sorely neglected this year by many of 
the same people on the other side of the aisle who are proposing this 
change in the Vacancies Act.
  We must recognize there is no similar vehicle or parallel authority 
like the Vacancies Act for filling vacancies on the Federal bench. 
There are presently 22 candidates to fill judicial vacancies on the 
Executive Calendar of the U.S. Senate, and 24 pending before the Senate 
Judiciary Committee--3 of those from my State. Unlike the executive 
branch where qualified acting officials may step in, in the judicial 
branch we don't have ``acting'' or ``interim'' judges.
  I think, frankly, if we are going to assume some responsibility here, 
as we should, and impose responsibility on the executive branch, we 
should meet our responsibility. I think that responsibility requires us 
to act in a timely fashion on nominees sent before us. The reason I 
oppose cloture is I would like to see that the Senate shall also be 
held to the responsibility of acting in a timely fashion. If, after 150 
days languishing in a committee there is no report on an individual, 
the name should come to the floor. If, after 150 days languishing on 
the Executive Calendar that name has not been called for a vote, it 
should be. Vote the person up or down. They are qualified or they are 
not. But to impose all of the burden on the executive branch and to 
step away from our responsibility I don't think is fair. It doesn't 
engage the symmetry, which I think is important.

  I will concede, as Senator Byrd has said, the constitutional question 
is directly addressed by this bill, but I think there is a larger 
question about the process and whether or not we meet our twin goals: 
timely consideration and ultimately the very best and most able people 
who are selected to serve us in Government.
  Mr. President, I yield back my remaining time.
  The PRESIDING OFFICER. Who yields time?
  Mr. THOMPSON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. THOMPSON. I yield myself 5 minutes.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. THOMPSON. Mr. President, I have a couple of points. With regard 
to the desire for symmetry, I point out that the symmetry and the 
balance are provided for in the Constitution itself. It is not 
symmetrical to take a constitutional provision and our constitutional 
duties, on the one hand, and equate it with legislation that people 
might be for or against, on the other. The Constitution provides that 
the President has the power to make the appointment, but only with the 
advice and consent of the Senate. It is part of our separation of 
powers, part of our checks and balances. Therein is the balance.
  What we have today is a situation where the President, the current 
President, as Presidents in the past, has made nominations and figured 
out ways around the prerogatives of the Senate. We are in a situation 
today where we are not doing our duty. The U.S. Senate is not doing its 
duty in upholding its right and protecting and preserving its right.
  We can bring this matter back. We cannot have cloture and bring this 
matter back time and time again. But we must recognize, with the 
provision, of course, of being able to offer germane amendments, we 
must recognize

[[Page S11032]]

that this situation is ongoing. We can debate legislation at any time. 
If it is deemed desirable to put a time limit on the U.S. Senate to 
consider appointments, we can debate that.
  I think it is very bad legislation. As most Senators, I think, know, 
there is more than one reason why nominations languish up here 
sometimes. Sometimes they languish for very good reasons. Sometimes it 
is an attempt to work with the White House with regard to someone who 
has problems. Instead of just saying no and sending it back or telling 
them to take it back, we find ways to work around the problems we have. 
There are many reasons why that would be bad legislation, but it is 
something that can be considered at any time.
  We have had this vacancies situation with us about 130 years now in 
terms of this legislation, and there are all kinds of things that can 
be added to it at this date, that it would probably be better if it 
were considered separately and invoke cloture today so we can address a 
problem that is really important in terms of the constitutional 
responsibilities of this body.
  With regard to the other objections of the bill and talking about 
that this is too confining on the front end, actually we either are 
continuing practices that have been with us for 130 years or we are 
making them more liberal. We are giving the President greater leeway. 
We are giving him 150 days instead of 120 under current law. If we do 
not pass this legislation, he will keep 120 days instead of the 150 we 
are trying to give him. People are concerned about a new President 
coming in. We have added an additional 90 days to the 150 days in which 
a new President will have to make his nominations. We also added 
another liberalizing provision that, if he lets the 150 days expire and 
then there is a period of time and then he makes the nomination, the 
acting person can go back and resume his duties. These are all 
liberalizing provisions.
  I understand the need to consider amendments. I was hoping that the 
possibility of germane amendments would get us through this, in light 
of the fact that we have spent a lot of time working on a bipartisan 
basis and making several changes.
  We have made changes since this legislation was introduced to allow 
the President to cure a vacancy by sending up a nomination even after 
150 days; by modifying the exclusion provision to exclude chief 
financial officers, for example; to allow a 150-day period when it 
expires during a recess to be extended to the second day after the 
Senate reconvenes; to reduce from 180 days to 90 days the length of 
time a first assistant held that position and can be eligible to be a 
nominee; extended the transitional period following a new President's 
inauguration, as I said, from 180 days to 240 days. In most of these 
cases, we have worked out on a bipartisan basis extensions and 
liberalizations from what is the current law.
  While there would not be an opportunity to offer relevant amendments 
that are not germane, I suggest that this is something whose time has 
come and that we would be doing a disservice if we did not go ahead and 
move this legislation--something that, as I say, has to do--it is not 
just a normal piece of legislation, it has to do with the carrying out 
of our constitutional duties.
  I yield the floor.
  Mr. GLENN. Mr. President, I rise today to discuss S. 2176, the 
``Federal Vacancies Reform Act of 1998'' introduced this summer by 
Senator Thompson, Chairman of the Governmental Affairs Committee with 
jurisdiction over the Act. I want to thank Senator Levin for managing 
the bill today. I also want to thank Chairman Thompson for the 
accommodations his staff has afforded Democratic staff in the 
negotiations leading up to this brief debate. We, on our side of the 
aisle, were blindsided, to say the least, by the filing of the cloture 
petitions last week as staff were negotiating the terms of a unanimous 
consent agreement on, and the substance of a managers' amendment to 
this very bill.
  As we know, the Vacancies Act governs the temporary filling of what 
we call ``advise and consent'' or PAS positions (Presidentially-
appointed, Senate-confirmed) in the Executive Branch. As I have said 
many times before, I remain concerned about two important goals of any 
new law we pass: (1) As Senator Byrd--the best expert this body has on 
Senate procedure and constitutional law--has repeatedly noted, this is 
one of the Senate's most important and serious constitutional 
prerogatives in that we are expected--required, in fact, under the 
Constitution--to provide our advise and consent on the nominees the 
President submits to us for our consideration; and (2) maintaining the 
smooth functioning of government with the large number of vacancies we 
seem to have to deal with. On one hand, we have more slots in 
government than ever before which means more vacancies. On the other 
hand, our confirmation process is long and tedious keeping acting 
officials (many of whom are very qualified to fill their slots) in 
their positions for longer than we intend.
  Combined, these concepts make the continuity of the functioning of 
government a challenge to achieve, but certainly not impossible. We 
should be creating a process that reflects reality and provides the 
proper safeguards and enforcement mechanisms.
  I believe the bill as it stands now improves on current law, but I 
think there is still work to be done. The White House has issued a veto 
letter on this bill. While I consider this important legislation, I 
remain concerned about many of the issues raised by the Administration, 
and I have filed amendments to address many of these concerns.
  For instance, are we being too limiting in who can become an acting 
official? Current law mandates that an acting official can be the first 
assistant or anyone the President designates. We will be narrowing 
current law to include the first assistant or any PAS official the 
President designates. The importance of this change is that in the 
absence of a first assistant or at the President's discretion, we will 
be requiring someone whom the Senate has already approved to fill a 
slot for which the Congress has required the Senate's advise and 
consent. But do we really want a President to designate a PAS from HUD 
to assume the additional responsibilities of a PAS position at 
Department of Education? Or vice versa? Do we want these folks who 
already have plenty of responsibility as it is to assume the added 
responsibility of a second position? With the vetting process taking 
longer and the noteworthy downsizing in government that has occurred 
over the last 6 years, perhaps it's time to consider a hybrid category 
of who can be a temporary acting official.
  I intend to offer an amendment to add a third category which would 
include qualified individuals of a certain level or higher who are 
already within an agency in which a vacancy occurs. Such individuals--
who could include high-level members of the civil service--would be 
familiar with the agency, its processes and culture; possess some 
institutional memory; and be fully capable of the task. This gives the 
President a larger pool from which to choose an acting official, 
particularly in a case where there is no first assistant, and the 
President must turn to another PAS official to temporarily fill the 
slot. In addition, it allows a larger category of who can act at the 
beginning of an administration to keep government functioning at a time 
when there are not many PAS officials. I think this amendment is 
critical to the success of the legislation, and I hope Senators on both 
sides will give it serious consideration. I will not be able to support 
the bill if this issue is not addressed in it.

  In addition, I hope to offer amendments which would give the 
President the authority to extend the period for a temporary official 
if a case of national interest arose and a nomination for the position 
had not yet been sent up. In such cases, under the amendment the 
President upon certification to Congress of the particular national 
interest--be it national security, natural disaster, economic 
instability or public health and safety--would be able to extend the 
temporary appointment one time for 90 days.
  Finally, I hope to offer an amendment which would further decrease 
the requirement for a first assistant who will be an acting officer and 
the nominee to 45 days. At the beginning of a new administration, there 
may not be enough PAS officials to perform their own duties let alone 
those of another position. This will be the case particularly where 
there is a change in party

[[Page S11033]]

in the White House. In addition, because of the restriction in the bill 
on first assistants who serve in acting capacities who will also be the 
nominees, the administration will be required to fill the first 
assistant slot as well as the vacant PAS slot. My amendment would allow 
first assistants to be appointed, act in the vacant slot for 45 days 
and then be nominated to fill the slot on a permanent basis before the 
end of the 60-day period for which extensions are granted at the 
beginning of a new administration.
  I hope that other amendments that may be offered which would impose 
the same constraints on the Senate as this legislation would impose on 
an administration will also have a fair opportunity to be considered. 
While some see no connection between the Vacancies Act and the 
responsibilities of the Senate to act on nominations, I believe the two 
are inextricably linked. I do not believe we can go forward in 
reforming one process until we commit to reforming our own.
  I want to note that as the negotiations on this bill proceeded, we 
were not only looking to see how this law would operate in this second-
term Democratic administration. Indeed, some day this law will be 
utilized by a Republican administration. With this in mind, we 
attempted to help craft a fair piece of legislation.
  In that vein, I want to emphasize again that the process by which 
this bill has come to the floor for such limited debate with no 
opportunity for action prior to the cloture vote, is discouraging both 
for our faith in a fair process and for the fate of this legislation.


                      Nomination of Bill Lann Lee

  Mr. LEAHY. Mr. President, as the Senate considers possible amendments 
to the Vacancies Act, we have occasion to focus on the Senate's advice 
and consent role for all presidential nominations and the American 
people have an opportunity to review how well, or how badly, this 
Senate has fulfilled that constitutionally-mandated role.
  It is important to explore ways to help the Executive Branch improve 
the process by which the President nominates, the Senate confirms and 
then the President appoints people to serve in important positions 
within the executive and judicial branches of our federal government. 
Indeed, I have often joined with Senator Byrd to defend the authority 
of the Senate on this issue and to protect the Senate's role against 
the executive encroachments by way of excessive use of the recess 
appointment power.
  I recall when the Reagan and Bush administrations were abusing the 
power of recess appointment and note, by contrast, how sparingly 
President Clinton has used that constitutional authority. I am advised 
that while President Reagan made 239 recess appointments in 8 years and 
President Bush made 78 recess appointments in 4 years, President 
Clinton has used his recess appointment power only 45 times over the 
last 5 years.
  I also recall how President Clinton acted with great restraint last 
year when he and the Attorney General joined to appoint Bill Lann Lee 
the Acting Assistant Attorney General for Civil Rights rather than 
using his power to make that a recess appointment.
  Let us focus on the nomination of Bill Lann Lee. He was initially 
nominated to head the Civil Rights Division in July 1997. At the end of 
1997, that nomination got caught up in one of the narrow, partisan-
driven whirlwinds that hit Washington every now and then. The result 
was that the nomination became a victim of the anti-affirmative action 
lobby and was denied a vote by the full Senate. Bill Lee was 
mischaracterized last fall as a wild-eyed radical and as someone ready 
to impose an extreme agenda on the United States. He was misportrayed 
as a supporter of quotas. The Republican majority demonized this fine 
man and killed his nomination by denying him a Senate vote.
  After looking at Bill Lee's record, I knew he was a man who could 
effectively lead the Civil Rights Division, enforce the law and resolve 
disputes. I reviewed his record of achievement and saw a practical, 
problem solver and noted last year that no one who has taken the time 
to review his record could call him an idealogue. I recognized that 
Bill Lee would be reasonable and practical in his approach to the job, 
and that he would be a top-notch enforcer of the Nation's civil rights 
laws.
  Bill Lann Lee has been serving for almost 10 months now as the Acting 
Assistant Attorney General for Civil Rights, and he has established a 
solid track record. He is doing an outstanding job for all Americans. I 
have had a chance to take a close look at what he has been doing while 
serving as the acting head of the Civil Rights Division. What I find is 
a record of strong accomplishments. I see professionalism and effective 
problem solving. I find him enforcing the law in a sensible and fair 
manner.
  Accordingly, I urge the Senate finally to consider the nomination of 
Bill Lann Lee and to confirm him to this important post. The President 
renominated Bill Lann Lee to be Assistant Attorney General in charge of 
the Civil Rights Division on January 29 of this year. Given his 
outstanding performance over the past 10 months, I urge the Senate to 
show him the fairness of a vote on his nomination. I am confident that 
when Senators consider his nomination and review his record, a majority 
of the United States Senate will vote to confirm this outstanding 
nominee.
  It is to raise this matter to the attention of the American people 
and for action by the Senate, that I have filed an amendment to the 
Vacancies Reform Act bill to provide for a vote on the longstanding 
nomination of Bill Lann Lee before the Senate ends this year's session.
  As we consider how to improve the Vacancies Act, the Senate would do 
well to consider its lack of action on the many outstanding nominations 
that the President has sent to us over the past several years on which 
the Senate has taken no vote. In addition to unprecedented delays in 
the consideration of judicial nominations--46 judicial nominations are 
pending and 22 are on the Senate calendar--there have been a number of 
executive branch nominations who have been denied consideration and a 
vote for many, many months.
  Bill Lann Lee is an example. He was first nominated for the important 
position of Assistant Attorney General for Civil Rights on July 21, 
1997, over 14 months ago. When no Senate vote was taken on his 
nomination last year, he was renominated on January 29, 1998. For the 
past 8 months his nomination has, again, been bottled up in committee.
  This is an historic nomination. Bill Lann Lee is the first Asian-
American to head the Civil Rights Division. He deserves to be confirmed 
by the Senate and to be accorded the full measure of recognition for 
all that he has achieved and all that he is doing on behalf of all 
Americans.
  The Senate was denied the opportunity to vote on that nomination 
before adjournment in 1997. With one notable and courageous exception, 
the Republican majority of the Judiciary Committee would not report the 
nomination to the Senate so that the Senate could vote whether to 
confirm this outstanding nominee. Although the Republicans have a 
majority in the Senate, they have been unable to pass legislative 
proposals to undermine the nation's commitment to equal opportunity and 
civil rights. As a result, the Republican majority decided to stall the 
Lee nomination without a vote as a trophy to its extremist factions. 
This nomination could not be defeated in a fair up or down vote, so 
they determined to avoid that Senate vote altogether and at all costs.
  I understand that Senator Durbin, a thoughtful member of both the 
Senate Government Affairs Committee, from which this bill emerged, and 
the Senate Judiciary Committee, which refused to report the Lee 
nomination to the Senate for action, has filed a series of amendments 
to the Vacancies Reform Act to begin to deal with this aspect of the 
problem--Senate inaction on nominations. I will study those proposals 
with great interest.
  I was disappointed this year that the Senate Judiciary Committee 
repeatedly postponed and eventually canceled hearings regarding the 
performance of the Civil Rights Division of the Justice Department 
under the leadership of Bill Lann Lee. I was disappointed because such 
a hearing would have offered us a chance to look at the outstanding on-
the-job performance of our

[[Page S11034]]

Acting Assistant Attorney General for Civil Rights.
  Over the past 10 months, the Division has focused most intensely on 
three areas of the law: violations of our Nation's fair housing laws, 
enforcement of the Americans with Disabilities Act (``ADA''), and cases 
involving hate crimes. Bill Lee and his team of civil rights attorneys 
have made advances in each of these areas of the law.
  The Division has resolved a number of housing discrimination cases 
over the past few months, including the following: An agreement was 
reached with two large New Jersey apartment complexes resolving 
allegations that the defendants had discriminated against potential 
renters based on family status and race.
  A housing discrimination case in Michigan was settled involving an 
apartment manager who told black applicants that no apartments were 
available at the same time that he was showing vacant apartments to 
white applicants. An agreement was also reached with the second largest 
real estate company in Alabama, which had been steering applicants to 
agents and residential areas based on race.
  The Civil Rights Division has also focused on educating the public 
about the ADA and enforcing it where necessary. These cases have 
included: resolution of a case in Hawaii to allow those who are vision 
impaired to travel to the State without having to quarantine their 
guide dogs for four months in advance of arrival;
  a consent decree with the National Collegiate Athletic Association so 
that high school athletes with learning disabilities have the 
opportunity to compete for scholarships and participate in college 
athletics; an agreement with private hospitals in Connecticut to ensure 
patients who are deaf have access to sign-language interpreters; and 
assistance to the State of Florida to update their building code to 
bring it into compliance with the ADA. Florida joins Maine, Texas and 
Washington State in having a certified building code thereby ensuring 
better compliance with the ADA by architects, builders and contractors 
within the State.
  The Civil Rights Division has also resolved several hate crimes cases 
over the past 7 months, including:

       In Idaho, six men pleaded guilty to engaging in a series of 
     racially motivated attacks on Mexican American men, women and 
     children, some as young as 9; in Arizona, three members of a 
     skinhead group pleaded guilty to burning a cross in the front 
     yard of an African American woman; and in Texas, a man 
     pleaded guilty to entering a Jewish temple and firing several 
     gun shots while shouting anti-Semitic slurs.

  The Division has also been vigorously enforcing its criminal 
statutes, including: indictments against three people in Arkansas 
charged with church burning; guilty pleas by 16 Puerto Rico 
correctional officers who beat 22 inmates and then tried to cover it 
up; cases arising from Mexican women and girls, some as young as 14, 
being lured to the U.S. and then being forced into prostitution; and 
guilty pleas from 18 defendants who forced 60 deaf Mexican nationals to 
sell trinkets on the streets of New York. Out of concerns about slavery 
continuing in the U.S., Bill Lann Lee has created a Worker Exploitation 
Task Force to coordinate enforcement efforts with the Department of 
Labor. I commend the Acting Assistant Attorney General for putting the 
spotlight on these shameful crimes.
  Other significant cases which the Civil Rights Division has handled 
in the past few months include the following: several long-standing 
school desegregation cases were settled or their consent decrees were 
terminated, including cases in Kansas City, Kansas; San Juan County, 
Utah; and Indianapolis, Indiana. Japanese-Latin Americans who were 
deported and interned in the United States during World War II finally 
received compensation this year. Lawsuits in Ohio and Washington, D.C. 
were settled to allow women access to women's health clinics.
  The record establishes that Bill Lann Lee has been running the 
Division the way it should be run. Here in Washington, where we have 
lots of show horses, Bill Lee is a work horse--a dedicated public 
official who is working hard to help solve our Nation's problems. I 
commend him and the many hardworking professionals at the Civil Rights 
Division.
  Bill Lee has served as acting head of the Civil Rights Division for 
10 months now. Given the claims made by many in the Senate last fall 
that Mr. Lee would lead the Division astray, you might expect that he 
would be in the headlines every day associated with some extreme 
decision. Instead, we have seen the strong and steady work of the 
Division--solid achievements and effective law enforcement.
  A few weeks ago, I received a letter from Governor Zell Miller of 
Georgia that is emblematic of the record that Bill Lee has established. 
Governor Miller discusses Bill Lee's efficient and effective ability to 
settle an action which involved Georgia's juvenile detention 
facilities. He notes that he was not exactly a fan of the Civil Rights 
Division before Bill Lee came along and writes that he ``was fearful 
that Georgia would be unable to get a fair forum in which to present 
our position, and that we would once again be compelled to engage in 
protracted and expensive litigation.'' Governor Miller writes that his 
fears were unfounded, that the parties engaged in ``intensive and 
expeditious negotiations'' and reached a fair agreement. Governor 
Miller also notes:

       I have indicated to Mr. Lee both personally and publicly 
     that he and his staff treated Georgia with professionalism, 
     fairness, and respect during our negotiations. Under the 
     direction of Bill Lann Lee, what began as a potentially 
     divisive and litigious process was transformed into an 
     atmosphere where the State was able to have its case heard 
     fairly, resulting in a reasonable agreement benefiting all 
     parties. This is the way in which the Civil Rights Division 
     should operate in its dealings with the states, and I am 
     pleased to commend Mr. Lee and his staff for their efforts in 
     this matter.

  The Acting Assistant Attorney General continues to build on his 
reputation as a professional and effective negotiator, who routinely 
earns praise from opposing parties. I had high expectations for Bill 
Lann Lee when he was nominated and I have not been disappointed. He is 
doing a terrific job. It is time for the Senate to end his second-class 
status and confirm him.
  We need Bill Lee's proven problem-solving abilities in these 
difficult times. It is wrong for the Senate to ignore his nomination 
any longer and a shameful slight to him, to his family and to all who 
care about fairness and equal rights.
  I remember vividly when Mr. Lee appeared at his confirmation hearing 
almost one year ago. He testified candidly about his views, his work 
and his values. He understood that as the Assistant Attorney General 
for the Civil Rights Division his client is the United States and all 
of its people. He told us poignantly about why he became a person who 
has dedicated his life to equal justice for all when he spoke of the 
treatment that his parents received as immigrants.
  Mr. Lee told us how in spite of his father's personal treatment and 
experiences, William Lee remained a fierce American patriot, 
volunteered to serve in the United States Army Air Corps in World War 
II and never lost his belief in America. He inspired his son and Bill 
now inspires his own children and countless others across the land. Mr. 
Lee noted:

       My father is my hero, but I confess that I found it 
     difficult for many years to appreciate his unflinching 
     patriotism in the face of daily indignities. In my youth, I 
     did not understand how he could remain so deeply grateful to 
     a country where he and my mother faced so much intolerance. 
     But I began to appreciate that the vision he had of being an 
     American was a vision so compelling that he could set aside 
     the momentary ugliness. He knew that the basic American tenet 
     of equality of opportunity is the bedrock of our society.

  Bill Lann Lee has remained true to all that his father and mother 
taught him. I continue to work to end the ugliness of Senate inaction 
on his nomination. If opponents want to distort his achievements and 
mischaracterize his beliefs, let them at least have the decency to 
engage in that debate on the floor of the Senate so that this 
longstanding nomination can be acted upon--either vote it up or vote it 
down, but vote on it. His career of good works and current efforts 
should not be rewarded with continued ugliness. Such treatment drives 
good people from public service and distorts the role of the Senate. I 
have often referred to the Senate as acting at its best when it serves 
as the conscience of the nation. In this case, I am afraid that the 
Senate has shown no conscience.

[[Page S11035]]

  Bill Lann Lee is a man of integrity, of honesty and of fairness. Born 
in Harlem, to Chinese immigrant parents, he has lived the American 
dream and stayed faithful to American values. He has done nothing to 
justify the unfair treatment by the Senate.
  As a child he worked in his parents' laundry after school. He went on 
to graduate magna cum laude from Yale College and to obtain a law 
degree from Columbia University. Bill Lann Lee has spent his life 
helping others--helping them to keep their jobs, to keep their homes, 
to have a chance at a well-earned promotion and to raise healthy 
children.
  As western regional counsel for the NAACP Legal Defense Fund, a 
public interest law firm founded by Thurgood Marshall in 1939, Mr. Lee 
litigated hundreds of cases ranging from employment discrimination 
claims to efforts to ensure probation offices are widely dispersed 
throughout Los Angeles to ensuring that poor children are tested for 
lead poisoning. His extensive experience and renowned skill at settling 
cases has served him well as Acting Assistant Attorney General for the 
Civil Rights Division.
  Most impressive is the array of former opposing counsels and parties 
who support Mr. Lee's nomination. In addition to Governor Miller, 
consider the words of Los Angeles Mayor Richard Riordan: Our 
``negotiations could not have concluded successfully without Mr. Lee's 
practical leadership and expertise.'' I believe Mayor Riordan's 
enthusiastic support and assurance that Mr. Lee has ``practiced 
mainstream civil rights law'' should carry some weight.
  Mr. Lee is a top quality candidate. He has all the essential 
qualities for this job--a legal career devoted to top-notch civil 
rights work, an outstanding degree of integrity and a commitment to 
practical solutions. This year he also has a proven track record as the 
Acting Assistant Attorney General.
  No one can argue that the President has sent to us a person not 
qualified by experience to lead the Civil Rights Division. Bill Lee's 
record of achievement is exemplary. He is a man of integrity and honor 
and when he said to this Committee that quotas are illegal and wrong 
and that he would enforce the law, no one should have any doubt about 
his resolve to do what is right. The Senate should vote on this 
outstanding nominee. He is the right person to lead the Civil Rights 
Division into the next century. We need his proven problem-solving 
abilities in these difficult times.
  Unfortunately, last year's consideration of this outstanding nominee 
took a decidedly partisan turn when the Speaker of the House chose to 
intervene in this matter and urge the Senate Republican Leader to kill 
this nomination. In his unfortunate letter, Speaker Gingrich unfairly 
criticized Mr. Lee and accused him of unethical conduct. The 
allegations of wrongdoing carelessly lodged against Mr. Lee are 
contradicted by the Republican Mayor of Los Angeles, Richard Riordan, 
as well as the Vice-President of the Los Angeles Police Commission, T. 
Warren Jackson, the Assistant City Attorney, Robert Cramer, and the 
City Attorney, James K. Hahn, but the damage had been done.
  I recall when times were different. I recall when charges were raised 
against Clarence Thomas and the Judiciary Committee held several days 
of additional hearings after that nomination had already been reported 
by the Judiciary Committee to the full Senate. There was a tie vote in 
Committee on the Thomas nomination, which would not have even been 
reported to the Senate had we not also voted virtually unanimously, 
with six Democrats joining seven Republicans, to report the Thomas 
nomination to the floor without recommendation. Of course, ultimately 
the nomination of Judge Thomas to become Justice Thomas was confirmed 
by the Senate.
  It remains my hope that the Senate will now give Bill Lann Lee the 
same fairness that we showed Clarence Thomas and allow his nomination 
to be voted upon by the United States Senate. It would be ironic if, 
after the Senate proceeded to debate and vote on the Thomas 
nomination--one that included charges that he engaged in sexual 
harassment--the Republican leadership prevented the Senate from 
considering a nominee because he has worked to remedy sexual harassment 
and gender discrimination.
  After consultation with Senators, the President acted after 
Congress's adjournment last fall to name Bill Lann Lee the Acting 
Assistant Attorney General for Civil Rights. The President then 
followed through on his commitments and renominated this distinguished 
civil rights attorney and public servant on January 29, 1998. This 
Senate is now approaching adjournment, again, and, again, the Senate is 
not voting whether to confirm or reject this nomination. The President 
has fulfilled his end of the bargain and acted with restraint and 
respect in this regard. The Senate has done nothing with respect to 
this nomination but ignore it. So, when we criticize this President for 
not sending up nominees fast enough, let us not forget that the Senate 
has now had ample opportunity for over two years to act on the 
nomination of Bill Lann Lee and the Senate has not.
  Last year, I was honored to stand on the steps to the Lincoln 
Memorial, where the Rev. Martin Luther King Jr. spoke 35 years ago and 
inspired the nation toward the promise of equality. I heard our 
colleagues Senator Kennedy and Senator Feinstein speak about the 
continuing struggle to provide equal opportunity to all Americans. I 
took inspiration from the wisdom of Rep. John Lewis whose compass is 
ever true on these matters. We heard Rep. Maxine Waters declare in no 
uncertain terms the support of the Congressional Black Caucus for Bill 
Lann Lee, Representative Patsy Mink take pride in reiterating the 
support of the Congressional Asian Pacific Caucus and Representative 
Xavier Becerra add the support of the Congressional Hispanic Caucus.
  I heard Justin Dart, a dedicated public servant who worked with 
President's Reagan and Bush, declare that people with disabilities 
support Bill Lann Lee and Representative Bob Matsui recount the dark 
days before the civil rights laws when his family had to suffer the 
indignity of internment because of the Japanese ancestry.
  Just last week when Congress presented Nelson Mandela with the 
Congressional Gold Medal, we drew upon the American tradition of 
Lincoln, King and so many who labored long and sacrificed much in the 
struggle toward equality for all Americans. We honored that past last 
week. We could extend it today by taking up and voting upon the 
nomination of Bill Lann Lee to be Assistant Attorney General for the 
Civil Rights Division. I call upon the party of Lincoln to be fair to 
Lee and vote on this nomination.
  Let the Senate debate and vote on the nomination of Bill Lann Lee. If 
the Senate is allowed to decide, I believe he will be confirmed and 
will move this country forward to a time when discrimination will 
subside and affirmative action is no longer needed; a time when each 
child--girl or boy, black or white, rich or poor, urban or rural, 
regardless of national or ethnic origin and regardless of sexual 
orientation or disability--shall have a fair and equal opportunity to 
live the American dream.


                          Judicial Nominations

  Mr. President, as we debate how to change federal law to require 
executive nominations within certain time frames and to preclude 
responsibilities from been fulfilled when a confirmed nominee is not 
present, we also need to consider how the Senate fulfills its duties 
with regard to nominees who have been before us for many months without 
Senate action. Since July I have been comparing the Senate's pace in 
confirming much-needed federal judges to Mark McGwire's home run pace. 
As the regular season ended over the weekend, Mark McGwire's home run 
total reached 70. Unfortunately, the Senate's judicial confirmation 
total remains stalled at 39.
  As recently as 1994, the last year in which the Senate majority was 
Democratic, the Senate confirmed 101 judges. It has taken the 
Republican Senate 3 years to reach the century mark for judicial 
confirmations--to accomplish what we did in one session.
  The Senate went ``0 for August,'' risks going ``0 for September'' and 
is threatening to go ``0 for the rest of the year.'' Indeed, I have 
heard some say that the Republican Senate will refuse to confirm any 
more nominations all year. That would be wrong and would

[[Page S11036]]

certainly harm the administration of justice and perpetuate the 
judicial vacancies crisis. Senate action has not even kept up with 
normal attrition over the past 2 years, let alone made a real 
difference in filling longstanding judicial vacancies. Both the Second 
Circuit and the Ninth Circuit have had to cancel hearings due to 
judicial vacancies. Chief Judge Winter of the Second Circuit has had to 
declare a circuit emergency and to proceed with only one circuit judge 
on their 3-judge panels. Recently, he has had to extend that 
certification of emergency.
  Yet in spite of that emergency, the Senate continues to stall the 
nomination of Judge Sonia Sotomayor to the Second Circuit. Her 
nomination has been stalled on the Senate calendar for over six months. 
Chief Judge Winter's most recent annual report noted that the Circuit 
now has the greatest backlog it has ever had, due to the multiple 
vacancies that have plagued that court.
  For a time Judge Sotomayor's nomination was being delayed because 
some feared that she might be considered as a possible replacement for 
Justice Stevens, should he choose to resign from the Supreme Court. 
After the Supreme Court term had ended and Justice Stevens had not 
resigned, the Senate might have been expected to proceed to consider 
her nomination to the Second Circuit on its merits and confirm her 
without additional, unnecessary delay. Unfortunately, that has not been 
the case.
  When confirmed she will be only the second woman and second judge of 
Puerto Rican descent to serve on the Second Circuit. Just as Sammy Sosa 
is a source of great pride to the Dominican Republic and to Latin 
players and fans everywhere, Judge Sotomayor is a source of pride to 
Puerto Rican and other Hispanic supporters and to women everywhere.
  Judge Sonia Sotomayor is a qualified nominee who was confirmed to the 
United States District Court for the Southern District of New York in 
1992 after being nominated by President Bush. She attended Princeton 
University and Yale Law School. She worked for over 4 years in the New 
York District Attorney's Office as an Assistant District Attorney and 
was in private practice with Pavia & Harcourt in New York. She is 
strongly support by Senators Moynihan and D'Amato.
  I note that one of her recent decisions, Bartlett v. New York State 
Board of Law Examiners, that had been criticized by her opponents, was 
affirmed in principal part on September 14 by a unanimous panel of the 
Second Circuit. In an opinion written by Judge Meskill, the Court 
agreed ``with the district court's ultimate conclusion that Dr. 
Bartlett, who has fought an uphill battle with a reading disorder 
throughout her education, is among those for whom Congress provided 
protection under the ADA and the Rehabilitation Act.'' In this, as in 
her other decisions that opponents seek to criticize, Judge Sotomayor 
applies the law. That is what judges are supposed to do. This 
affirmance belies the charge that she is or will be a judicial 
activist.
  Ironically, it was Judge Sotomayor who issued a key decision in 1995 
that brought an end to the work stoppage in major league baseball. If 
only the breaking of the single season home run record could signal the 
end of the work stoppage in the Senate with respect to her nomination.
  Instead of sustained effort by the Senate to close the judicial 
vacancies gap, we have seen extensive delays continued and unexplained 
and anonymous ``holds'' become regular order.
  I began this year challenging the Senate to maintain the pace it 
achieved at the end of last year when 27 judges were confirmed in the 
last nine weeks. Instead, the Senate has confirmed only 39 judicial 
nominees in 25 weeks in session. Had the Senate merely maintained the 
pace that it set at the end of last year, the Senate would have 
confirmed 75 judges--not 39 judges--by now.
  We have 22 qualified nominees on the Senate calendar awaiting action. 
Including those still pending before the Committee, we have a total of 
46 judicial nominations awaiting action, some of whom were first 
received over three years ago.
  The Senate continues to tolerate upwards of 75 vacancies in the 
federal courts with more on the horizon--almost one in 10 judgeships 
remains unfilled and, from the looks of things, will remain unfilled 
into the future. The Senate needs to proceed more promptly to consider 
nominees reported to it and to do a better job fulfilling its 
constitutional responsibility of advice and consent.
  Unfortunately, the record that the Senate is on pace to set this year 
with respect to judicial nominations is the record for the amount of 
time it takes to be confirmed once the nomination is received by the 
Senate. For those few nominees lucky enough to be confirmed as federal 
judges, the average number of days for the Senate confirmation process 
has continued to escalate. In 1996, that number rose to a record 183 
days on average. Last year, the average number of days from nomination 
to confirmation rose dramatically yet again. From initial nomination to 
confirmation, the average time it took for Senate action on the 36 
judges confirmed in 1997 broke the 200-day barrier for the first time 
in our history. It was 212 days.
  The time is still growing and the average is still rising, to the 
detriment of the administration of justice. The average time from 
nomination to confirmation for judges confirmed this year is 259 days. 
That is three times as long as it was taking before this partisan 
slowdown.
  I have urged those who have been stalling the consideration of the 
President's judicial nominations to reconsider and work to fulfil this 
constitutional responsibility. Those who delay or prevent the filling 
of these vacancies must understand that they are delaying or preventing 
the administration of justice. Courts cannot try cases, incarcerate the 
guilty or resolve civil disputes without judges.
  The federal judiciary's workload was at least 60 percent lower than 
it is today when the Reagan-Bush administrations took office. The 
federal court's criminal docket alone is up from 28,921 cases in 1980 
to 50,363 last year. That is an increase of over 70 percent in the 
criminal case filings in the federal courts.
  During the Reagan and Bush administrations, whether it had a 
Democratic or Republican majority, the Senate promptly considered and 
confirmed judges and authorized 167 new judgeships in response to the 
increasing workload of the federal judiciary. While authorized 
judgeships have increased in number by 25 percent since 1980, the 
workload of the federal courts has grown by over 60 percent during the 
same period. That is why the prolonged vacancies being perpetuated by 
delays in the confirmation process are creating such strains within the 
federal courts.
  Unlike other periods in which judicial vacancies could be attributed 
to newly-created judgeships, during the past four years the vacancies 
crisis has been created by the Senate's failure to move quickly to 
consider nominees to longstanding vacancies.
  In the early and mid-1980's, vacancies were between 25 and 34 at the 
beginning of each session of Congress. By the fall of 1983, the 
vacancies for the entire federal judiciary had been reduced to only 16.
  With attrition and the 85 new judgeships created in 1984, vacancies 
reached 123 at the beginning of President Reagan's second term, but 
those vacancies were reduced to only 33 within two years, by the fall 
of 1986. A Democratic Senate in 1987 and 1988 reduced the vacancies 
still further to only 23 at the end of the 100th Congress.
  It was not until additional judgeships were created in 1990 that the 
next significant increase in vacancies occurred and then, again, a 
Democratic Senate responsibly set about the task of helping fill those 
vacancies with qualified nominees. Although President Bush was 
notoriously slow to nominate, the Democratic Senate confirmed 124 
nominees in President Bush's last two years in office and cut the 
vacancies in half.
  With respect to the question of vacancies, it is also important to 
note that in 1997 the Judiciary Conference of the United States 
requested an additional 53 judgeships be created. The Republican 
Congress has refused to consider that workload justified request. My 
bill to meet that request, S. 678, the Federal Judgeship Act of 1997, 
has received no attention since I introduced it over a year ago. Had 
those additional judgeships been created, as

[[Page S11037]]

they were in 1984 and 1990 under Republican Presidents, current 
judicial vacancies would number 128 and total almost 14 percent of the 
federal judiciary.
  Last week Senator Graham spoke about authorizing the additional 
District Court judges recommended by the Judicial Conference and needed 
around the country. These are the judges who try federal criminal cases 
and hear complex federal civil litigation. Given the Republican 
Senate's tenacious refusal to consider and confirm judges for the 
vacancies that currently exist, it seems unlikely that the Republican 
majority would be willing to authorize the additional federal judicial 
resources that are needed around the country. That is a shame. The 
Senator from Florida is right to try and I join him in his efforts.
  No one should take comfort from the number of confirmations achieved 
so far this year. It is only in comparison to the dismal achievements 
of the last two years that 39 confirmations could be seen as an 
improvement. The President has been doing a better job of sending the 
Senate scores of nominees more promptly. Unfortunately, qualified and 
capable nominees are still being delayed too long and stalled.
  I have pledged to continue to work to end the judicial vacancies 
crisis and to support efforts to provide the federal judiciary with the 
resources it needs to handle its growing caseload and serve the 
American people.
  When the Senate is asked to consider amendments to the Vacancies Act, 
it should also reconsider its own inaction on the many outstanding 
nominees that the President has sent the Senate and that the Senate is 
refusing to consider.
  Indeed, earlier this year I proposed a bill that requires the Senate 
to vote on nominations for Court of Appeals vacancies that created an 
emergency under federal law. The week after Chief Judge Winter of the 
Second Circuit certified such an emergency last spring, I introduced 
the Judicial Emergency Responsibility Act, S. 1906. The purpose of this 
bill is to supplement the law by which Chief Justice Winter certified 
the judicial emergency, a judicial emergency that still persists in the 
Second Circuit, and to require the Senate to do its duty and to act on 
judicial nominations before it recesses for significant stretches of 
time. The Senate should not be taking vacations when a Circuit Court is 
suffering from a vacancy emergency.
  I introduced the bill just before the Senate adjourned for a 2-week 
recess and I urged prompt action on the nominations then pending to 
fill those Second Circuit vacancies. At that time, the nomination of 
Judge Sonia Sotomayor was among those favorably reported and had been 
on the Senate Calendar awaiting action for a month. That was five 
months ago. Still, there has not been any action.
  I did not believe that the Senate should be leaving for a two-week 
recess in April or a four-week recess in August and leaving the Second 
Circuit with vacancies for which it had qualified nominations pending. 
I do not believe that the Senate should adjourn this year without 
voting on the many qualified judicial nominees that have been pending 
before the Senate for so long without action. I have been urging action 
on the nominees to the Second Circuit for more than a year. The Senate 
is failing in its obligations to the people of the Second Circuit, to 
the people of New York, Connecticut and Vermont. We should call an end 
to this stall and take action.
  I intend to consult with the managers of the bill, but believe that I 
should offer S. 1906 as an amendment to the pending measure.
  What the Senate is proceeding to do to the judicial branch in 
refusing to vote on nominees and perpetuating judicial vacancies is too 
reminiscent of the government shutdown only a couple of years ago and 
the numerous times of late when the Republican congressional leadership 
has recessed without completing work on emergency supplemental and 
disaster relief legislation. As we approach the end of the session, the 
Republican Congress has yet to pass a budget or enact the 13 annual 
appropriations bills that are our responsibility. Must we wait for the 
administration of justice to disintegrate further before the Senate 
will take this crisis seriously and act on the nominees pending before 
it? I hope not.
  I look forward to Senate debate on suggestions to impose 
responsibility upon itself in its treatment of judicial nominations.
  The PRESIDING OFFICER. Who yields time?
  Mr. LIEBERMAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. I thank the Chair.
  Mr. President, I yield myself up to 10 minutes from the time 
allocated to Senator Levin.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. LIEBERMAN. I thank the Chair.
  Mr. President, let me say at the outset that the bill before us 
addresses a very important problem, which is to say the need to protect 
the Senate's constitutional role in the appointment of Federal 
officers. The Constitution, as my colleagues have indicated, provides 
that the President's power to appoint officers of the United States is 
to be exercised ``by and with the Advice and Consent of the Senate. . . 
.''
  Unfortunately, in too many cases over the course of the past several 
administrations, the Senate's constitutional prerogatives have too 
often been ignored through the executive's far-too-common practice of 
appointing acting officials to serve lengthy periods in positions that 
are supposed to be filled with individuals confirmed by the Senate. I 
think it is, therefore, entirely appropriate--indeed necessary--for 
Congress to act to remedy this situation.
  I appreciate very much the leadership given by the Senator from West 
Virginia, the Senator from South Carolina, and the chairman of our 
committee, the Senator from Tennessee. I also appreciate those 
Senators' willingness to work with the members of the Governmental 
Affairs Committee, including this Senator, to accommodate some of the 
concerns we have had as the bill moved through committee.
  The fact is, throughout that whole period of time, the effort to 
reform the Vacancies Act has been a truly bipartisan one, as it should 
be. Even though I believe there are some problems remaining with the 
bill, I also am confident that the process of resolving those problems 
has been conducted in good faith and with fairness on all sides.
  I therefore regret that, along with many of my colleagues, I find 
myself in the situation I am today, which is to say, prepared to vote 
against cloture on this bill, because I believe there remain serious 
substantive problems with the bill, and the procedural situation we are 
in now with a cloture motion having been filed in an attempt to limit 
debate will frustrate our ability to work together to solve some of 
those remaining problems.
  I think it is particularly unfortunate that we find ourselves in this 
position on this bill because I am confident that, were we not forced 
immediately into a cloture vote, we likely could work out the problems 
that remain with the bill. It remains my hope, if cloture is not 
obtained on the vote that will occur in a little more than 10 minutes, 
that we can continue to work together to achieve a unanimous consent 
agreement that will allow perhaps for amendments that are relevant, if 
not germane, according to the procedures of the Senate.
  Let me briefly give an example of one of the problems that I think 
remains with the bill which is of concern to some. As the bill is 
currently drafted, only one of two individuals can serve as acting 
officials in the case of a vacancy: Either the first assistant to the 
vacant position, a term of art that generally refers to the top deputy; 
or someone already confirmed by the Senate for another position. 
Because individuals holding Senate-confirmed positions already have a 
lot to do, it almost always will be the first assistant who takes over 
as the acting.
  But, by the terms of the bill, a first assistant apparently can take 
over only if he or she was the first assistant at the time of the 
vacancy. This severe limitation on the universe of individuals who may 
serve as acting is, in my view, a mistake that could be harmful to the 
functioning of the executive branch because it will have the effect of 
forcing many important positions to remain vacant, potentially for 
several months at a time. That is because

[[Page S11038]]

there are many times when a vacancy occurs at a time that the first 
assistant position is also vacant.
  There may be other times when a first assistant, who was there when 
the vacancy occurred, may want to leave his or her job during the 
pendency of that vacancy. In both situations, as I read the literal 
terms of the bill as it is before us, it would require that during the 
duration of the vacancy, which could be many months long, we would be 
requiring that no one other than people who had already been confirmed 
for other positions would be eligible to serve as the acting in the 
vacant position. We would be effectively denying the executive branch 
the ability to put someone else in that position on an acting basis.
  Also troubling is what can happen when a new President comes into 
office. If individuals in Senate-confirmed positions leave before the 
new President takes office, as often happens, then the only people who 
would be qualified to serve as acting officials as the new 
administration gets off the ground, because they were the first 
assistants at the time of the vacancy, are holdovers, often political 
appointees from the previous administration. That could create an 
awkward situation that would require a new administration to staff 
itself with a previous administration's political appointees.
  I am confident that we could work this problem out were the bill to 
come to the floor under the normal processes. But, unfortunately, in 
the posture that it is now in, it is not so.
  So I must say I again will vote against cloture, but I do remain 
hopeful that if cloture is not granted on this next vote, we will be 
able to find a way together to continue the bipartisan path that this 
bill has taken, until this moment when it has reached the Senate floor, 
and find a way to find a common ground to move forward with this bill 
on which a lot of work has been done, and, though it is detailed and 
intricate, in which the public interest finds a great expression.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. THOMPSON. May I inquire how much time remains?
  The PRESIDING OFFICER. The Senator from Tennessee controls 4 minutes. 
The Senator from Michigan controls 8 minutes 23 seconds.
  Mr. THOMPSON. I ask the Senator from West Virginia if he has 
additional comments.
  I yield myself 2 minutes.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. THOMPSON. A couple quick points.
  My friend from Connecticut makes good points, as usual. I point out, 
though, that the concern about, someone could not be a first assistant 
if they had not been there for so many days, that would not keep them 
from being the acting officer. If they were appointed to the permanent 
position, they would have needed to have been there for 90 days. But 
just to be the acting officer, anyone who serves in that position would 
become the acting officer without having been there any length of time.
  With regard to the second concern with regard to a new 
administration, my understanding is there is always a holdover person 
who is a Senate-confirmed person who traditionally takes care of those 
problems--essentially the same situation we have had for the last 130 
years with regard to those concerns, I believe.
  I yield the Senator from West Virginia the remainder of my time, 
which I think is probably 2, 3 minutes.
  Mr. BYRD addressed the Chair.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. BYRD. Mr. President, I again thank the distinguished chairman for 
his outstanding service that he has performed in the interest of the 
Constitution, the interest of this institution, and the interest of the 
liberties of the people which we are all trying to protect in this 
measure.
  Mr. President, I believe there--we only have less than 2 minutes; is 
that right?
  The PRESIDING OFFICER. The Senator has 2\1/2\ minutes remaining.
  Mr. BYRD. How much time does the distinguished Senator from 
Connecticut wish to----
  The PRESIDING OFFICER. The Senator has 8 minutes remaining.
  Mr. BYRD. If the distinguished Senator from Connecticut will yield me 
a little of his time.
  Mr. LIEBERMAN. I yield the Senator as much time as he wants.
  Mr. BYRD. Mr. President, I am reminded of that situation which 
occurred in 63 B.C. Sallustius writes about. And it is referred to as 
the conspiracy of Catiline. After Caesar had spoken in the Roman 
senate, protesting against the death penalty for the conspirators, for 
the accomplices of Catiline, Cato the Younger was called upon by 
Cicero, the consul, to speak. Cato demanded that the accomplices of 
Catiline be put to death under the ancient laws of the republic.
  From Cato's speech I quote only the following strain: ``Do not think 
that it was by arms that our ancestors raised the state from so small 
beginnings to such grandeur, but there were other things from which 
they derived their greatness. They were industrious at home, just 
rulers abroad, and into the Senate Chamber they brought untrammeled 
minds, not enslaved by passion.''
  Now, Mr. President, I urge my colleagues in the Senate not to let 
their minds be trammeled with passion. Keep them untrammeled and 
focused on the injury that is being done to the Senate by the executive 
department in the flaunting and circumventing of the appointments 
clause, which this legislation addresses and is intended to secure for 
the Senate its rights and prerogatives under the Constitution.
  Democrats and Republicans who reverence the Constitution and who 
pride themselves in having been given the honor to serve in this 
institution--the legislative branch--I hope will stand up for the 
institution and bind ourselves to the mast of the Constitution, as did 
Odysseus when the divine Circe bade him to stay away from the Sirens' 
isle.
  I hope that we will keep in mind that we are making several 
improvements in this bill as it is written. And as the distinguished 
chairman of the Governmental Affairs Committee has so eloquently 
pointed out within the last few minutes, even without amendments this 
bill is a liberal advancement--liberal from the standpoint of the 
administration, whatever administration it might be, Democratic or 
Republican. It gives more time to the administration.
  So if we turn down this opportunity, I hope the opportunity will come 
again. But if it does not, then the administration is the loser, as 
well as the Senate--but the Senate is the greater loser because of the 
constitutional requirements under the appointments clause which give 
the Senate a share in the appointments of individuals to important 
positions in the executive branch and the judicial branch.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut has 6 minutes 
remaining.
  Mr. LIEBERMAN. I thank the Chair.


                         Privilege Of The Floor

  Mr. LIEBERMAN. I rise simply to make an unrelated motion. I ask 
unanimous consent that privileges of the floor be granted to Laureen 
Daly of my staff during the pendency of S. 442 and H.R. 3529.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LIEBERMAN. I thank the Chair.
  Mr. President, I think on this side we have spoken our piece. For the 
reasons indicated, we hope that our colleagues will vote against 
cloture and then that both sides can come together to achieve common 
ground and pass this important piece of legislation.
  I, therefore, yield back the remaining time from our side.
  The PRESIDING OFFICER. All time is yielded back.


                             CLOTURE MOTION

  The PRESIDING OFFICER. Under the previous order, pursuant to rule 
XXII, the Chair lays before the Senate the pending cloture motion, 
which the clerk will report.
  The assistant legislative clerk read as follows:


                             cloture motion

       We the undersigned Senators, in accordance with the 
     provision of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on S. 2176, the 
     Vacancies Act:
         Trent Lott, Strom Thurmond, Charles Grassley, Thad 
           Cochran, Wayne Allard, Ben Nighthorse Campbell, Don 
           Nickles, Orrin G. Hatch, Pat Roberts, Tim

[[Page S11039]]

           Hutchinson, Richard Shelby, Conrad Burns, Jim Inhofe, 
           Connie Mack, Fred Thompson, Spencer Abraham.


                            Call of the Roll

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call under the rule has been waived.


                                  Vote

  The PRESIDING OFFICER. The question is, Is it the sense of the Senate 
that debate on Senate bill 2176, the Federal Vacancies Reform Act of 
1998, shall be brought to a close? The yeas and nays are required under 
the rule. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Missouri (Mr. Bond), 
the Senator from New York (Mr. D'Amato), and the Senator from Alabama 
(Mr. Sessions) are necessarily absent.
  Mr. FORD. I announce that the Senator from South Carolina (Mr. 
Hollings), the Senator from Massachusetts (Mr. Kennedy), the Senator 
from Illinois (Ms. Moseley-Braun), the Senator from Nevada (Mr. Reid), 
the Senator from New Jersey (Mr. Torricelli), and the Senator from 
Oregon (Mr. Wyden) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Nevada (Mr. Reid) would vote ``no.''
  The yeas and nays resulted--yeas 53, nays 38, as follows:

                      [Rollcall Vote No. 289 Leg.]

                                YEAS--53

     Abraham
     Allard
     Ashcroft
     Bennett
     Brownback
     Burns
     Byrd
     Campbell
     Chafee
     Coats
     Cochran
     Collins
     Coverdell
     Craig
     DeWine
     Domenici
     Enzi
     Faircloth
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kempthorne
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Roberts
     Roth
     Santorum
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--38

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Bumpers
     Cleland
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Ford
     Glenn
     Graham
     Harkin
     Inouye
     Johnson
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moynihan
     Murray
     Reed
     Robb
     Rockefeller
     Sarbanes
     Wellstone

                             NOT VOTING--9

     Bond
     D'Amato
     Hollings
     Kennedy
     Moseley-Braun
     Reid
     Sessions
     Torricelli
     Wyden
  The PRESIDING OFFICER. On this vote, the yeas are 53, the nays are 
38. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is not agreed to.
  The majority leader is recognized.

                          ____________________