[Congressional Record Volume 148, Number 123 (Wednesday, September 25, 2002)]
[Senate]
[Pages S9200-S9216]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                HOMELAND SECURITY ACT OF 2002--Continued

  The PRESIDING OFFICER. The Senator from Nebraska is recognized.


                Amendment No. 4740 To Amendment No. 4738

    (Purpose: To modify certain personnel provisions, and for other 
                               purposes)

  Mr. NELSON of Nebraska. Madam President, I call up my amendment at 
the desk.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Nebraska [Mr. Nelson], for himself, Mr. 
     Chafee, and Mr. Breaux, proposes an amendment numbered 4740 
     to amendment No. 4738.

  Mr. NELSON of Nebraska. Madam President, I ask unanimous consent that 
the reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under ``Text 
of Amendments.'')
  Mr. NELSON of Nebraska. Madam President, I am pleased to join with my 
friends, Senator John Breaux of Louisiana and Senator Lincoln Chafee of 
Rhode Island, in helping break the stalemate on the labor-management 
issues that have held up the homeland security legislation. We need to 
move forward and pass a bill that provides real security for all 
Americans without the distractions of labor-management issues.
  This legislation is a huge undertaking, and the reorganization will 
certainly not be accomplished overnight.
  That being said, we need to get to it right now because the later we 
come back to try to do this, the more difficult it will be. We need to 
do it right because unscrambling the eggs is impossible.
  The new Department will not begin well if it begins with a staff who 
feels their concerns have been ignored. We now have the opportunity to 
break that logjam. This compromise addresses the concerns of both 
sides. The agreement preserves the Presidential authority to exempt 
union employees from collective bargaining as employees of the 
Department of Homeland Security. It also grants the President historic 
personnel flexibility, giving him the authority to hire, fire, promote, 
demote, and to rewrite civil service laws in the area of performance 
appraisals, classifications, pay rates and systems, and adverse action.
  The agreement provides binding arbitration on personnel flexibility. 
All sides will have a seat at the table during the development of the 
new personnel rules and any disagreements over the rules will be 
referred to the Federal Service Impasse Panel, which will have the 
authority to set the rules and resolve disputes. This is modeled after 
the IRS Restructuring and Reform Act of 1998, which is current law.
  The Federal Service Impasse Panel has discretion to impose new rules 
to break this agreement. This is existing law. It is the way in which 
we ought to proceed.
  I know this amendment will receive broad bipartisan support, and I 
hope those of us who seek to complete action on this important 
legislation will support this effort to clear one of the major hurdles 
that has been currently blocking our progress so we can move forward on 
this important and vital security matter currently before us.
  I ask for the support of my colleagues, and I hope we will move 
forward on this as soon as we possibly can. There is no reason to delay 
this legislation any longer.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. BREAUX. Madam President, I support the amendment to the Gramm-
Miller amendment which has been offered by our good friend and 
colleague Senator Nelson, and by my colleague Senator Lincoln Chafee. 
It is very clear the Senate, as we debate homeland security, has 
reached a point where we are at a logjam. I, for one, and I think the 
vast majority of our colleagues, strongly support the creation of a 
Homeland Security Department, and why is very simple.
  In light of today's terrorist threat to this country, we can no 
longer continue to operate and protect our Nation's security in the way 
we always have. In the past, too often the right hand did not know what 
the left hand was doing, and vice versa. It is clear, from the evidence 
that has now been presented, we have agencies within our own Government 
that had certain amounts of information that was important information, 
but information they did not adequately share with other Departments 
and agencies within our Government.

[[Page S9201]]

  It is nice to have individual agencies know a little bit about the 
intelligence of an international threat, but if they do not share that 
information with other Departments within our Government, and they do 
not put all of the information gathered into one single place where 
people can look at it and analyze it, it is really not very effective 
information. It is certainly not as effective as if we have the 
collective wisdom of all of the various intelligence-gathering agencies 
within our Government.
  The point has very accurately been made if the CIA has information 
the FBI does not have, if the Immigration Service has some information 
neither one of the other agencies has, that is not a very effective 
situation. If you throw in information that agencies such as the Drug 
Enforcement Administration, the Immigration and Naturalization Service, 
and local police and State police have, if each one of them keeps that 
information to themselves, we are not providing the service we should 
to the American people. For the first time, the creation of a Homeland 
Security Agency is going to say to all of these collecting agencies 
that gather the information that is so important, we should absolutely 
share it and involve each other in what that information is all about, 
and that is what the Homeland Security Agency does very effectively.
  All of those, Republicans and Democrats together, who have worked 
very hard to bring this legislation to the floor have done a good job. 
This is good legislation. It is important legislation. What this 
legislation does is simply say to the American people after 9/11, we 
are going to create a new agency in our Federal Government to ensure 
our ability to better protect the rights and freedoms of all American 
citizens than we have in the past.
  There are actions that have to be taken in times of national 
emergencies that are not normal, such as during this period of special 
concern. One of the powers that is necessary for a President to have is 
the ability to move agencies, departments, and individuals as quickly 
as possible, to the best position to serve the American public.
  The President currently has the authority to say if it is important 
for national security that some of the collective bargaining rights of 
some of these employees of the Federal Government have to be 
temporarily set aside. He can exercise that authority now, and he has 
exercised it in the past. It has not been only this President but it 
has gone back, I think, all the way to President John Kennedy. We are 
in that type of a situation.

  With the creation of a new Homeland Security Agency, however, we are 
talking for the first time about creating a new agency where thousands 
of employees may be taken out of one position and put into the Homeland 
Security Agency.
  Somewhere between 40,000 and 50,000 who have collective bargaining 
rights where they are currently working, if they are transferred to a 
new Homeland Security Agency, for the first time may have those 
collective bargaining rights taken away.
  How ironic it would be if the agency we are creating to protect the 
rights and freedoms of Americans is the agency that is utilized to take 
away the rights of American citizens to collectively bargain without 
the appropriate justification for doing so. I do not think anyone would 
want to say that is their desire.
  This Homeland Security Agency is designed to protect the rights and 
freedoms Americans have gained. Some may argue about the wisdom of 
having collective bargaining rights, but it is a right American 
citizens have. So the question before this body now is: How do we give 
the President the authority to do what is necessary in this new 
Homeland Security Agency, which I support very strongly, while at the 
same time ensuring while we take rights away from American citizens, it 
is only done under the most unusual circumstances, and if it is 
necessary it be done, it be done very carefully so everyone will 
understand how this transaction is taking place?
  What brings us to the floor today is this suggestion my good friends, 
Senator Nelson and Senator Chafee, and myself, have worked on to try to 
say, yes, we support homeland security, but we also want to make sure 
we protect the rights and freedoms of our own American citizens.
  It is interesting to note, if people would only take the time--and I 
have said this so many times. I have said this to my good friend, the 
chairman, Senator Lieberman--if all of us had the time to read the 
legislation and see the actual differences between the two versions, 
they would find the differences are far less than the similarities, 
particularly when it comes to this very issue which is causing this 
problem right now.
  If we look at the current authority of the President of the United 
States with respect to what he can do to remove collective bargaining 
rights of American workers when he transfers them, it is almost 
similar, if not identical, to what our suggestion is to break the 
logjam. For instance, under the current law of the United States, under 
5 U.S.C. section 7103, this is what people are saying, do not take away 
the President's authority. The current law says the President may issue 
an order excluding any agency or subdivision thereof from coverage 
under this chapter--meaning take away their collective bargaining--if 
the President determines, first, that the agency or subdivision has as 
a primary function intelligence, counterintelligence, investigative or 
national security work; and, second, the provisions of this chapter 
cannot be applied to that agency or subdivision in a manner consistent 
with national security requirements and considerations. What that says 
is the President can take away their collective bargaining rights now 
only if he makes a determination that these two things are present.

  How do we handle it in our amendment, which I think can generate more 
than a majority? Simple. Our legislation says no agency can have their 
collective bargaining rights taken away, unless it is shown that the 
mission and responsibilities of the agency or subdivision materially 
change, and, second, that a majority of the employees within the agency 
have as their primary duty intelligence, counterintelligence, or 
investigative work directly related to terrorism investigation.
  I will argue with anyone who wants to say that this somehow hampers 
the ability of the President to take away collective bargaining rights. 
Under our suggestion, the President, as under current law, has to make 
a determination that these people are important to intelligence 
gathering. That is easy for the President. And also that the mission 
and responsibilities of the agency from which he wants to take these 
rights away have materially changed. I think that is a very easy thing, 
under the circumstances that exist today for the President to be able 
to reach that standard.
  It is interesting that under the current law there is no appeal from 
the workers to go to the NLRB or any kind of labor agency. But there is 
no appeal under our provision to go to any kind of NLRB or agency at 
all.
  Some of my friends on the Republican side say, yes, but those workers 
could take the agency to court. That is true. But that is also true 
under current law. If someone under current law thinks the President 
has not made this determination correctly, they have the right to go to 
court. I don't know that it has ever been done. If so, I think maybe 
once it was not successful. But they have that right today. It is not 
appropriate to say we are going to create this new agency but we are 
going to give workers less rights than they have today.
  Some have also suggested they show that mission and responsibilities 
of the agency have materially changed. That would never fit today's 
circumstances. The example they give is, we may have an immigration 
agency working in south Texas that is all of a sudden going to be 
transferred to the new agency to look after immigrants who are coming 
from suspected terrorist areas of the world and that their mission will 
not materially change. They will be doing the same work in a different 
agency and, therefore, not meet the test of having their work 
materially change because they will be doing the same type of work.
  That does not create a problem. It is the intent of the authors of 
this to clearly say it is our intent when you are transferring people 
who are doing immigration work in border towns,

[[Page S9202]]

protecting our States under normal circumstances, that they have to do 
that type of work to stop international terrorists at a time we have 
been attacked by terrorists from other countries is materially changing 
what they are doing. They are now looking out after foreign terrorists 
who are trying to attack the United States and do grave harm to this 
country. Their work has materially changed. The President makes this 
determination under our amendment, as he does under current 
circumstances. There is no appeal from the workers to be able to go to 
any NLRB-type of organization and plead their case.

  I plead with folks at the White House who have looked at this, take 
another look at it. Read what the current law says. Read what our 
suggestion is on collective bargaining. You will find there is not any 
difference that is worth objecting to if we are able to get this 
through the Senate with a large majority. It is not a good idea, I 
suggest, to have a 50/50 vote on homeland security and have to ask the 
Vice President of the United States to come to this Chamber to break 
the tie, to barely get this through the Senate. What type of unanimity 
does that show the American people as we pass homeland security? This 
amendment should pass with 75, 80, or 90 votes at least. Our suggestion 
in the Nelson-Chafee-Breaux amendment would allow us to have a huge 
vote in support of this proposition.
  The second area we have addressed in our amendment is important. The 
question is, Do you give the President flexibility to move people 
around, to change, perhaps, how they get paid, or to change their 
functions because now there is a question of national security? We have 
done that in our amendment. We have clearly spelled out the fact that 
they have the authority to have management flexibility. We have taken 
the larger part of the so-called Portman-Quinn amendment offered in the 
House which gives management flexibility to the President.
  I happen to think he should have management flexibility, but 
certainly not unlimited. He should have it in the areas he needs it. We 
have offered that. The Portman language in the Senate gave him 
management flexibility in six different categories. We have said that 
we will take four of those six categories and give him the flexibility 
he needs to make the decisions he would like to make in moving these 
people around.
  The President should have that in terms of the national emergency. We 
give him the authority that he needs, like in Portman-Quinn. The only 
suggestion is, you should not be able to do it, like you cannot today, 
without some involvement of the workers. You ought to at least sit down 
with them and discuss with them as you do in other agencies--such as 
the IRS, the FAA. Under current law, you sit down and talk with the 
people you are going to be moving around to get their support, to get 
their ideas, to get their suggestions about how it can be made to work 
in a more efficient manner.
  What type of managers want to dictate to the employees that he will 
do this, that, and the other, and oh, by the way, I want you to be a 
loyal worker after I do this? Our legislation requires that in making 
these management changes, they shall be worked out with the 
representatives of the workers and the Secretary, that they would enter 
into a written agreement to approve the management flexibility that the 
Secretary thinks he needs.
  The point is, if they do not reach an agreement, do the workers have 
a veto? Absolutely not. As under current Federal law, as under the 
Internal Revenue Service when we gave them management flexibility, this 
body and the other body voted and approved when they cannot agree on 
management flexibility, you bring in the Federal Service Impasse Panel 
and they will have the authority under the Federal Service Impasse 
Panel--if the parties cannot arrive at an agreement, they have the 
authority under our amendment, as under current law, to take whatever 
action is necessary to resolve the impasse. That means if they want 
management flexibility, they sit down with both sides and discuss it. 
If the two sides cannot agree, they bring in the Federal Service 
Impasse Panel and they make the decision. It is a binding decision.
  What is this Federal Service Impasse Panel? Is this an arm of the 
AFL-CIO? A new creation? No, it exists in Federal law today. There are 
seven people on it. Guess who appoints the seven. The President of the 
United States. He appoints every single member of the Federal Service 
Impasse Panel that will look at what the President is trying to do, and 
if the people cannot agree, his appointees, all seven of his 
appointees, unanimously appointed by the President of the United 
States, put into effect what they think is appropriate and improper. I 
don't think that is something that is bad at all. That is current law 
for the Federal service workers right now when they are being moved 
around.
  I suggest if we could adopt the Nelson-Chafee-Breaux amendment we 
could put this aside. This bill has to go to conference with the other 
body. There will be further negotiations on this issue. Hopefully, we 
can come back with something that leaves the Senate, first, with a very 
large vote, instead of 50/50, and then come back in a fashion that will 
also generate the type of support that I think is critically important.
  I ask for a ``yes'' vote on my amendment, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. CHAFEE. Madam President, creating the Department of Homeland 
Security is an enormous undertaking. In fact, it is the largest Federal 
undertaking since the creation of the Department of Defense. Senator 
Breaux, Senator Nelson, and I offer this amendment to address the 
concerns, not only of the President, of course, but also concerns of 
the many thousands of Federal employees to whom we are entrusting our 
national security. As Senator Breaux and Senator Nelson have pointed 
out aspects of this amendment, I think it is important to note that 
what we have done is taken Republican amendments, I say to my 
colleagues on this side of the aisle, we have taken Republican 
amendments from the House, the Republican amendment offered by 
Representative Morella from Maryland, Republican amendments offered by 
Representative Portman and Representative Quinn, from Ohio and New 
York, and offered them into this amendment. This is an honest attempt 
at bipartisanship.
  Most important, as Senator Nelson has said, this amendment will 
finally enable the Senate to move the process forward by getting this 
bill to conference with the House. Without this compromise, there will 
be no Senate bill. There will be no Department of Homeland Security. 
But with this compromise we can empower the conference committee to 
work with the administration to finalize a bill that will meet the 
President's legitimate concerns and protect employees' legitimate 
rights. I do urge passage of this amendment.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LOTT. I ask unanimous consent the quorum call be rescinded.
  Mr. REID. Reserving the right to object, Madam President--I object.
  The PRESIDING OFFICER. Objection is heard.
  The assistant legislative clerk continued with the call of the roll.
  Mr. LOTT. Madam President, I renew my request the quorum call be 
rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LOTT. Just to clarify my intent, Madam President, this is not to 
get recognition to try to offer an amendment or affect the procedure on 
the pending issue. Talking with Senator Reid, he wanted to make sure 
that at the conclusion of my remarks there would be an opportunity for 
someone to seek recognition on the other side. I am sure that would be 
the case, although Senator Bunning is here and wishes to speak on the 
amendment at hand.
  I would like, rather than just to speak on the amendment, to use 
leader time, as was done by Senator Daschle this morning, to speak on 
this critical area.

[[Page S9203]]

  The PRESIDING OFFICER. The Senator has that right.
  Mr. LOTT. Madam President, the Senate now has been on this important 
issue over 3 weeks. The creation of the Homeland Security Department, 
something that clearly is very important, needs to be done. Perhaps it 
needed to be done earlier--without being critical of anybody. There 
needs to be some way to bring these different groups together and get a 
focus, get some direction, to give them the directions they need and 
the funds and the people to deal here at home with the threat by 
terrorists and by others. We need this Homeland Security Department.
  I had thought we could probably do a Homeland Security Department in 
a few days--probably less than a week. But here we are, now. Obviously, 
we are going to take a month on this issue.
  What is at stake? What has delayed this issue is the President's 
authority to impose national security interests, the security of the 
American people in their homes and their streets and their businesses, 
innocent men, women, and children here at home--for the President to be 
able to act in the national security interest, to have some flexibility 
in management authority to make sure this Department runs efficiently. 
Yet we see we are still arguing over work rules in the workplace. We 
are still arguing over whether the President should have the authority 
to say, for national security reasons: I am going to be able to move 
people and money around, and we are going to be able to override work 
rules to look after the security of the American people.
  I think it is ridiculous that we have come to this point. I oppose 
the pending amendment because, once again, this is an effort to try to 
find a way to make it difficult or even impossible for the President of 
the United States--and not just this President, Presidents--to be able 
to do the job on homeland security.
  The President has said that the Senate needs to act on homeland 
security. There is beginning to be doubt about the Senate's commitment 
in this area because we are putting special interests of certain groups 
over homeland security. That is a legitimate debate. The debate has 
been gentlemanly. We have not had many amendments because we have had 
more talk than we have had amendments. But now we have the President's 
proposal that has been offered by Senator Gramm and Senator Miller--a 
bipartisan bill with some changes that have been agreed to. And now we 
have an amendment that will be offered. That is all well and good. That 
is fine.
  Then there is the separate issue of the Iraq resolution. What are we 
going to do about Saddam Hussein? Let me read to you what the President 
of the United States said on that issue.

       I want to thank Members of both parties of the U.S. 
     Congress for working to develop a strong resolution and a 
     strong signal to the world that this Nation is determined.

  That is what the President actually said. Now, I am deeply saddened 
by the tenor and the tone of the remarks of my friend, the majority 
leader, this morning on the administration's conduct and Iraq. We live 
in grave times, when this body should be carefully and deliberately 
debating the threat that Iraq's weapons of mass destruction pose 
against the United States. Instead we heard accusations that a 
President of the United States is using the possibility of war for 
political purposes.
  Who is the enemy here? The President of the United States or Saddam 
Hussein? That is who was attacked this morning here on the floor of the 
Senate. I think we would be better served debating Saddam Hussein and 
the threat he poses for the world. He is a brutal dictator. He has 
already used chemical and biological weapons against his own people.
  We know he has the ability to deliver these weapons. We know he has 
invaded his neighbors.
  We had better be asking ourselves what we are going to do about this 
tyrant. He has for 11 years ignored 16 U.N. resolutions and has been 
involved in the killing of thousands of innocent people.
  For anyone who seems surprised that we are engaged in this debate, I 
ask a very simple question. Where were you, 9 months ago, when the 
President of the United States came before a Joint Session of Congress 
and said, ``Iraq continues to flaunt its hostility toward America and 
to support terror. The Iraqi regime has plotted to develop anthrax and 
nerve gas, and nuclear weapons for over a decade. This is a regime that 
has already used poison gas to murder thousands of its own citizens--
leaving the bodies of mothers huddled over their dead children. This is 
a regime that has something to hide from the civilized world?
  Where were you, 9 months ago, when the President continued, ``States 
like these, and their terrorist allies, constitute an axis of evil, 
arming to threaten the peace of the world. By seeking weapons of mass 
destruction, these regimes pose a grave and growing danger. They could 
provide these arms to terrorists, giving them the means to match their 
hatred. They could attack our allies or attempt to blackmail the United 
States. In any of these cases, the price of indifference would be 
catastrophic''?
  Where were you 6 months ago, on the half year anniversary of 
September 11, when the President said, ``Here is what we already know: 
some states that sponsor terror are seeking or already possess weapons 
of mass destruction; terrorist groups are hungry for these weapons, and 
would use them without a hint of conscience. And we know that these 
weapons, in the hands of terrorists, would unleash blackmail and 
genocide and chaos''?
  The President continued, ``These facts cannot be denied, and must be 
confronted. In preventing the spread of weapons of mass destruction, 
there is no margin of error, and no chance to learn from mistakes. Our 
coalition must act deliberately, but inaction is not an option.''
  Again in May, the President said:

       The evil that has formed against us has been termed the 
     ``new totalitarian threat.'' The authors of terror are 
     seeking nuclear, chemical and biological weapons. Regimes 
     that sponsor terror are developing these weapons and the 
     missiles to deliver them. If these regimes and their 
     terrorist allies were to perfect these capabilities, no inner 
     voice of reason, no hint of conscience would prevent them.

  The President of the United States has been actively laying out the 
case against Iraq in a deliberate and focused way for nearly 1 year.
  Just a month ago, Democrats in the Senate and Republicans in Congress 
were saying to the President: Mr. President, make your case to the 
American people. Come to the Congress. Make your case to us. Let us be 
engaged in the dialog and the debate, have some resolution prepared, 
and vote. Go to the United Nations. Make your case to the world 
community. Reach out to our allies around the world, and those not 
necessarily our allies, and show them the danger. Talk to them. Have a 
dialog.
  The President did that. He has been going to the American people. So 
has his administration. He came to the Congress and said: You are 
right. I am going to consult with you and communicate with you.
  Let us have a dialog. Let us have a debate. Let us have a vote.
  A number of Democrats have stood up and said: Yes, this problem is 
serious, and we must address it. We must address it now.
  The President went to the United Nations. He showed commitment and 
leadership. He turned the whole debate there around and put pressure on 
the United Nations to decide if they were just going to be a League of 
Nations or if they were going to really enforce their resolutions that 
had passed several times.
  The President gave a bill of particulars about why we must act, and 
we must act now, because with ever passing day, week, month, and year, 
the threat grows, it doesn't diminish.
  This is about the people in Iraq who are being oppressed and who have 
been killed. This is about security in the region. This is about 
security here at home.
  Some people have said: He can't deliver nuclear weapons yet. He may 
not have them.
  He has the delivery systems. He is working to make them longer range. 
We know that. He is trying to get materials he needs to have these 
nuclear weapons. But put aside the nuclear weapons. We know he has 
biological and chemical weapons right now. We know that. Some of these 
weapons can be delivered with an aerosol can--right here; not somewhere 
else; right here.

[[Page S9204]]

  Have we forgotten the events of 9/11 so soon, which was so 
catastrophic and so big? Are we ignoring what we are learning from the 
hearings that are underway and from the realities of the threats from 
terrorists all over the world, and particularly from Saddam Hussein?
  Once the President came to the Congress, some people said: Wait. We 
didn't mean now. Some people said: Let us do it instantly. Now some 
people say it is being politicized; we shouldn't do that. We should 
reduce the shrill of rhetoric. We should try to find a way to do this 
in the right way and in a broad bipartisan way.
  But let us go beyond the situation right here at home. Is somebody 
going to accuse Prime Minister Tony Blair of politicizing the issue? He 
is not up for reelection. In fact, he is going against a lot of the 
people in his own party. I think the British people support what he is 
doing. But he has shown real courage. He went before the House of 
Commons this week and laid out the information he had. He deliberately 
pointed out the danger and why we need to act now. Nobody can accuse 
him of politicizing the issue.
  This is what he said.

       [The British Joint Intelligence Committee] concludes that 
     Iraq has chemical and biological weapons, that Saddam has 
     continued to produce them, that he has existing and active 
     military plans for the use of chemical and biological 
     weapons, which could be activated within 45 minutes, 
     including against his own Shia population; and that he is 
     actively trying to acquire nuclear weapons capability.

  The Prime Minister continues:

       Since the departure of the inspectors in 1998, Saddam has 
     bought or attempted to buy: specialized vacuum pumps of the 
     design needed for the gas centerfuge cascade to enrich 
     uranium . . . an entire magnet production line . . . and has 
     attempted, covertly to acquire 60,000 or more specialized 
     aluminum tubes which are subject to strict controls due to 
     their potential use in the construction of gas centerfuges.

  All this, and Iraq has no civil nuclear powerplants. So they are not 
doing it for that purpose.
  The Prime Minister concluded:

       Two things about Saddam stand out. He has used these 
     weapons, thousands dying in chemical weapons attacks in Iraq 
     itself. He used them in the Iran-Iraq war, started by him, in 
     which one million people died. And his is a regime with no 
     moderate elements to appeal to. Read the chapter on Saddam 
     and human rights. Read not just about the one million dead in 
     the war with Iran, not just about the 100,000 Kurds brutally 
     murdered in northern Iraq, not just the 200,000 Shia Muslims 
     driven from the marshlands in southern Iraq; not just the 
     attempt to subjugate and brutalize the Kuwaitis in 1990 which 
     led to the Gulf War. Read about the routine butchering of 
     political opponents; the prison ``cleansing'' regimes in 
     which thousands die; the torture chambers and hideous 
     penalties supervised by him and his family and detailed by 
     Amnesty International. Read it all again and I defy anyone to 
     say that this cruel and sadistic dictator should be allowed 
     any possibility of getting his hands on more chemical, 
     biological or even nuclear weapons.

  That was the British Prime Minister.
  This is not about politicizing the issue. We shouldn't do that. But 
it is a very important issue. The American people's security is at 
stake.
  I think what maybe has happened here is a desire to try to find some 
way to put this issue off or to in fact make it political.
  But let me correct the Record just in case some of the comments here 
were inspired by misinformation.
  Today's Washington Post story on President Bush and Vice President 
Cheney has remarks in it that are flat wrong. The partial quote cited 
in the Post was specifically referencing the current debate over 
management flexibility of the Department of Homeland Security--not the 
war on terror in Iraq. I think that is a very important and critical 
difference.
  I took the time to look at the Vice President's remarks. I know Dick 
Cheney. I have the utmost respect for him. I have heard him speak to 
several different groups--political meetings and nonpolitical. He is 
always low key, very studied in what he says, very careful, and it is 
never inflammatory. He does talk about the need for the right actions 
in the economy, national and homeland security, and trade promotion 
authority. He has talked about the things we have done.
  Then he said:

       President Bush and I are very grateful for the opportunity 
     to serve our country. We thank you for your support, not just 
     for our efforts, but for good candidates like Adam Taff, who 
     will make a fine partner for us in the important work ahead.

  What is the problem with that?
  When I looked at what was said today, I must confess, I was shocked 
and even horrified. I have taken a moment here to talk to some of the 
colleagues on the floor about the important work ahead of us.
  At a press conference this very morning, I was saying: We are going 
to work this language out. We are going to find language that will give 
the President the authority he needs but language that will have broad 
bipartisan support in both bodies. We can find a way to do that.
  But the accusations leveled against the President of the United 
States today cannot stand. This is not about unity. That is the worst 
kind of division. I am going to try to remain calm and attribute the 
reaction I heard today to perhaps misunderstanding. We are not going to 
question anybody's patriotism here, but we are going to question the 
commitment and what we need to do to protect the American people.
  It is not about questioning it; it is about doing it. We are not 
going to pass a homeland security bill that ties the President's hands. 
It is not going to happen. And he will not sign it.
  We are going to take action against Iraq to make sure their weapons 
of mass destruction are located and destroyed. If it takes regime 
change, this Congress, this Senate is already on record saying we 
support that.
  I think it is time we get a grip on things. We have a lot of work to 
do. Here in the Senate, we are not moving anything. We are becoming 
totally dysfunctional. And now we are going to add to that the type of 
accusations we had here this morning?
  We have 2 weeks and 2 days or so to do a lot of important work: the 
defense of our country, homeland security, economic security issues 
that we need to address--terrorism insurance. There is so much we need 
to do. I hope we will find a way to do those issues and get this 
discussion back on the right track.
  I yield the floor, Madam President.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DASCHLE. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Carper). Without objection, it is so 
ordered.
  The PRESIDING OFFICER. The majority leader.
  Mr. DASCHLE. Mr. President, we have been hoping to move this process 
along. And I would hope that we would continue to have debate 
throughout the day on the Gramm and the Nelson amendments.
  The Senator from Texas had noted earlier that he was desirous of an 
up-or-down vote. I would be prepared to provide that up-or-down vote. I 
am going to propound a unanimous consent request to accommodate that, 
so I will do so at this time.
  I ask unanimous consent that the Senate vote on Senator Nelson's 
amendment at 10 o'clock in the morning, tomorrow, and that immediately 
after it has been disposed of, Senator Gramm be recognized to offer a 
further second-degree amendment that is the text of amendment No. 4738, 
and that the Senate then vote immediately in relation to Senator 
Gramm's amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. GRAMM. Mr. President, reserving the right to object, all we have 
asked for, from the very beginning, is to have an opportunity to have 
an up-or-down vote on the President's proposal, not having an up-or-
down vote on it as amended by somebody else.
  The Senator has every right to amend it. It just seems to me, in a 
wartime situation, when the President has proposed a compromise and has 
asked that we vote on it, that we ought to do that. And on that basis, 
I will object.
  The PRESIDING OFFICER. Objection is heard.
  The majority leader.
  Mr. DASCHLE. Mr. President, I have a hard time understanding the 
basis for

[[Page S9205]]

the Senator's objection. We have offered him an up-or-down vote on his 
amendment, just as he has suggested.
  Mr. NICKLES. Will the majority leader yield?
  I am going to help the majority leader.
  Mr. DASCHLE. I will yield in just a moment.


                            Motion To Commit

  Mr. President, I do not see that we have any other option, then.
  To ensure that we keep in place the current parliamentary 
circumstances that we have legislatively, I move to commit the bill to 
the Governmental Affairs Committee and that it be reported back 
forthwith with the Lieberman amendment No. 4471, as amended, pending. 
And I ask for the yeas and nays.
  The PRESIDING OFFICER. The motion is before the Senate.
  Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.


  Amendment No. 4742 To The Instructions Of The Motion To Commit H.R. 
             5005 To The Committee On Governmental Affairs

  Mr. DASCHLE. Mr. President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The legislative clerk read as follows:

       The Senator from South Dakota [Mr. Daschle] proposes an 
     amendment numbered 4742 to the instructions of the motion to 
     commit H.R. 5005 to the Committee on Governmental Affairs.

  Mr. DASCHLE. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  Mr. DASCHLE. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  At the moment there is not a sufficient second.
  Mr. DASCHLE. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DASCHLE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DASCHLE. Mr. President, I ask for the yeas and nays on the 
amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.


                Amendment No. 4743 To Amendment No. 4742

       (Purpose: To modify certain personnel provisions, and for 
     other purposes.)

  Mr. DASCHLE. Mr. President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from South Dakota [Mr. Daschle] proposes an 
     amendment numbered 4743.

  Mr. DASCHLE. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  Mr. DASCHLE. I yield the floor.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. BUNNING. Mr. President, I ask unanimous consent to be listed as a 
cosponsor of the bipartisan Gramm-Miller substitute and rise to speak 
in favor of that amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 4738

  Mr. BUNNING. Mr. President, I believe the proposal of Senator Gramm 
and Senator Miller represents our best hope of passing legislation this 
year to put a new Homeland Security Department in place.
  The Gramm-Miller substitute addresses the legitimate policy concerns 
of many Senators on both sides of the aisle while also giving the 
President the flexibility and the authority he needs to put together 
and run a Homeland Security Department that fulfills its primary 
mission--defending our people and our Nation.
  This amendment is a good, bipartisan compromise. It contains a number 
of provisions from the original bill reported out of the Governmental 
Affairs Committee. It also contains the bulk of what the President has 
asked.
  As a member of the Governmental Affairs Committee, I would like to 
take a few minutes to talk about what I see as the strengths of this 
proposal as well as the weaknesses of the Democratic proposal and why 
it is imperative that we pass Gramm-Miller now.
  One of the most important things this bipartisan amendment does not 
do is, it does not take away important Presidential national security 
authority when this country is in the middle of a war. Going back to 
the markup of the homeland security bill in committee, many of us 
argued that the President needs to have the maximum flexibility to 
effectively administer a Homeland Security Department. We are fighting 
a new type of war. The Department is going to have to be nimble. 
Officials there are going to have to be able to react to events at home 
and abroad on a moment's notice. The President must have the ability to 
make decisions and move resources around to fight an enemy that has 
spread throughout the world and could attack us from any point.
  Every President since Jimmy Carter has had more discretion in running 
agencies that were involved in national security. For instance, over 
the past 30 years, every single President, Republican or Democrat, has 
been able to declare, and actually has declared, that some civil 
servants are exempt from collective bargaining rules that apply to 
other agencies. The Democratic bill would change that when it comes to 
homeland security.
  Let me be clear: The employees at the new Department are going to 
have a very important job to do. They deserve our respect and our 
support. But to go as far as to give the President less authority over 
them and to put more bureaucratic rules into place is to distract from 
the reason we are debating this legislation in the first place.

  We need to make sure these employees have the resources to do the 
job. We need to make sure the President has the same ability. To give 
him less authority is the exact opposite of what we need to do.
  In short, that means the Democratic proposal would actually give the 
President less flexibility than he already has under current law. That 
is crazy. There is no reason to have this debate if we are only going 
to talk about making it harder, not easier, for the President to lead 
us in the war on terrorism.
  This debate is supposed to be about crafting rules and building a new 
Department to help fight the war on terrorism. It is not supposed to be 
a debate about rolling back the clock to an outdated way of thinking 
about labor and management relationships.
  I have said throughout this debate that if the choice comes down to 
national security versus more redtape and rules, national security must 
win every time.
  Instead, what the Gramm-Miller proposal would do is give the 
President necessary management and personnel flexibility to allow him 
to integrate the pieces of many standing agencies into a new Homeland 
Security Department. This is going to be an awesome task we are 
undertaking. We are talking about taking bits and pieces from literally 
dozens of current agencies and quickly fitting them together into an 
effective unit called the Department of Homeland Security.
  That job is going to be an even harder one if we continue to focus on 
old rules and redtape instead of how to fashion a new and flexible 
agency to fight a war in the 21st century.
  Another reason to support Gramm-Miller and to oppose the Democratic 
bill or any substitute for it is the forward-thinking parts of the 
bipartisan bill when it comes to civil service and personnel issues. 
For instance, Gramm-Miller gives the President flexibility when it 
comes to management decisions relating to hiring, evaluating, and 
compensating. Democratic opponents look at this and see the glass is 
half empty. They claim it is a pretext for cracking down on workers. I 
see the glass as half full and view these reforms as a way for the 
President and the others to reward those employees who do a good job 
and provide the flexibility to hire the best and brightest for this new 
Department. After all, we are talking about defending our Nation and 
our people. Employees who do a good

[[Page S9206]]

job as part of that should be rewarded. Those who do not should either 
be disciplined or fired.
  At the same time, Gramm-Miller also retains whistleblower protection 
and a full range of employee benefits and protections. I understand it 
might not be everything the Government unions want, but it is still a 
very good deal.
  Gramm-Miller is also on the right track when it gives the President 
extra authority to transfer funding and responsibilities to the 
Homeland Security Department. Right now his hands are often tied by 
redtape, but if we were to have another 9/11 disaster, if we were to 
see another attack, the President would need more authority to act 
quickly when it comes to moving around funds and responsibilities to 
make sure we respond as rapidly as possible.
  I know some of my colleagues worry about this new authority. They 
think we are going too fast and that Congress would be giving away some 
of its constitutional authority. I totally disagree. Gramm-Miller 
specifically says that as to the biggest changes, the President would 
ask Congress for permission by submitting a resolution to the House and 
to the Senate and that we would have 90 days to act. That is the type 
of consultation with which I am comfortable.

  Obviously, we have to respect the separation of powers as well as 
Congress's power of the purse and our powers to declare what role they 
are going to play. We can do this while at the same time giving the 
President more tools to effectively administer the Federal bureaucracy.
  My friends on the other side of the aisle who oppose Gramm-Miller 
have also thrown out a couple of other red herrings when it comes to 
labor and personnel issues. They have tried to fall back on the notion 
that the proposal would undercut the Davis-Bacon rules covering 
prevailing wage on Government construction projects. But the fact is 
that Gramm-Miller is neutral on this issue and explicitly does not 
address it.
  They also try to make the claim that supporters of Gramm-Miller are 
using it as some devious way to undercut, in a broad manner, rights 
under the Federal Labor Relations Act. Again, this just is not true.
  The President does have the right under Gramm-Miller to exempt 
applications of the rules on a limited basis but only--but only--if 
national security is involved. That sounds reasonable, and I believe 
most of the American people, if given a choice between tying the 
President's hands with labor negotiations or giving him the ability to 
act for national security, would give him the benefit of the doubt.
  When you get beyond the debate about broad policies and personnel 
issues, Gramm-Miller also makes sense when it comes to the nuts and 
bolts of making changes to specific departments and agencies.
  For example, when reorganizing the Customs Service under the new 
Homeland Security Department, the Democratic bill would provide for the 
transfer of Customs to the Homeland Security Department but at the same 
time also requires it to be maintained as a distinct entity within the 
Border and Transportation Security Directorate.
  That also makes no sense. Customs cannot be in two places at one 
time. It is either a part of homeland security or it is not. There is 
no other way I can see how it can function effectively by splitting its 
resources and focusing among two agencies.
  The only reason I can see that the Democratic bill does it this way 
is to protect turf, but all this would do is to protect the same old 
stovepipe system and personnel we have now, but under different names. 
If anything, moving Customs into two different agencies might make 
things worse.
  Instead, Gramm-Miller would transfer Customs to homeland security and 
reserve at Treasury the limited right to issue regulations covering 
some of the Customs' revenue functions. That seems like a much more 
sensible and workable solution to me.
  I know it might not be popular in the bureaucracy, and there might be 
some at Treasury and Customs who are resisting this change, but if it 
is a choice between keeping the status quo or some sort of warped 
version of it to save the bureaucratic face to protect turf, then I 
have no problem in upsetting the applecart and supporting a new 
streamlined approach to Government.
  Another example of what I am talking about is how the competing 
proposal deals with FEMA. The Democratic bill moves FEMA to a new 
Department as a ``distinct entity'' that cannot be reorganized or 
merged.
  The Gramm-Miller bill simply moves FEMA to the Homeland Security 
Department.
  I do not even understand what the Democrat bill is trying to do here. 
It claims to move FEMA to Homeland and to give the Secretary some 
authority over it. But at the same time it says that FEMA cannot be 
reorganized or improved.
  This is a distinction without a difference. Either FEMA is part of 
Homeland or it isn't.
  Either the new Secretary has the authority over FEMA and the ability 
to put its resources to work or he doesn't.
  The Democrat bill tries to tiptoe around the issue so that it does 
not step on toes. But when it comes to war and fighting terrorists, it 
is time to step boldly.
  Instead of talking about shades of gray and playing word games, we 
need to start looking at the world in black and white and acting 
boldly.
  In other areas, Senator Gramm and Senator Miller have gone out of 
their way to adopt workable sections of the Democrat bill and to 
compromise.
  For instance, Gramm-Miller adopts the Democrat bill's language when 
it comes to Freedom of Information Act issues and the law enforcement 
powers of inspector agents.
  These might seem small, but especially with FOIA I know that many of 
my colleagues were worried about accountability of the new Department, 
and I appreciate the bipartisan efforts to reach across the aisle from 
Senator Gramm and Senator Miller.
  Gramm-Miller also borrows from the Democrat bill when it comes to 
provisions covering Federal workforce improvement and adopting reforms 
worked out in the Governmental Affairs Committees by Senator Voinovich 
and Senator Akaka.
  It accepts all of the Democrat proposal when it comes to emergency 
procurement authority.
  On the subject of Administration of the Centers for Disease Control, 
it also accepts all of the Democrat proposal.
  Gramm-Miller proposes effective immigration reforms by adopting the 
Democrat bill's proposal to create an Immigration Affairs directorate 
within the new Department and to transfer the Immigration and 
Naturalization Service to it.
  Senator Gramm and Senator Miller also accept, with only minor 
changes, the Democrat's proposal to modify the Coast Guard's mission 
and reforms the rules that cover how we issue visas.
  In short, Gramm-Miller has tried to take the best and most acceptable 
parts of the Democrat bill while also maintaining the flexibility and 
some of management proposals that the President says he needs.
  For instance, the President's plan provides for unified intelligence 
analysis and infrastructure protection in one organization.
  This would have a single agency responsible for providing both threat 
assessments and vulnerability analysis. Nowhere in the Government does 
this currently take place. This plan would fill that gap.
  As the current Joint Intelligence Committee hearings have shown the 
last several days, our intelligence community needs some work.
  Most importantly, information about what is going on in this country 
needs the most work, and information about what our own weaknesses are 
is largely nonexistent. This amendment would allow these two types of 
analysis to come together and provide the most accurate information 
about what we need to do as a Nation to protect ourselves domestically.
  This flexibility and reform is not part of the Democrat bill.
  We have been at loggerheads on this legislation for almost 4 weeks 
now.
  I think we know it is getting down to crunch time and it is time to 
compromise. That is what Gramm-Miller does.
  No one is going to get everything of what they want and the time 
before adjournment is shrinking rapidly.
  I think it is time to move beyond confrontation and toward a workable

[[Page S9207]]

compromise that will allow us to put an effective Homeland Security 
Department into place now.
  I know that some Members think we are moving too fast and they want 
to spend more time debating the bill.
  I think that is the wrong way to look at this situation.
  Obviously, we have to get things right in building the new 
Department. But at the same time, we all know that if we can come up 
short we come back and fix things down the road. I do not think anyone 
seriously doubts that if we pass a bill that needs to be tweaked down 
the road that the Congress is going to drag its feet on such an 
important national security issue.
  We owe it to ourselves and the American people to finish work on this 
bill. We have been debating it for close to a month. Before that, it 
was subject to some public debate during the August recess and during 
the Government Affairs Committee markup in July. We have had over 15 
hearings on this bill.
  We are not reinventing the wheel. We have had a good debate. I think 
we have a good handle on this bill and now it is time to vote.
  If we are worried about making mistakes or not passing a perfect bill 
we will be here until doomsday--literally.
  This is a complicated issue. There are bound to be mistakes. But I 
think we are on the verge of getting much of it right, and on many 
levels we will not know for sure how to make the Department work until 
we get it up and running and see where the shortcomings are.
  So let's get started. The people who will staff this new Department 
are already out there, trying their best to protect America.
  They are dedicated public servants who make many sacrifices to serve 
this Nation and their fellow citizens, but right now they are spread 
throughout the Government.
  It is time to bring them together and to harness their collective 
talents for the national good.
  There is an old phrase that says one should either leads, follow, or 
get out of the way. Right now we are doing none of those things. We in 
Congress need to start leading
  The President has been pretty clear about what he needs to administer 
the new Department.
  He has told us what he can accept and what he has to veto.
  The House has acted, and now I think a bipartisan majority in the 
Senate ought to be ready to act.
  We can continue talking or try to pass a political bill that the 
President will send right back to us.
  Instead, we should adopt Gramm-Miller. It is a good starting point--a 
solid, consensus bill.
  It borrows the ideas from competing bills, and as the only bipartisan 
bill it offers common sense solutions when it comes to building the 
Department of Homeland Security.
  I urge my colleagues to support it.
  I yield the floor.
  The PRESIDING OFFICER. The assistant majority leader.
  Mr. REID. Mr. President, before the Senator from Kentucky leaves the 
floor, I, as all Senators, I am sure, feel very fortunate to be able to 
serve in the Senate. One reason is the associations we develop with our 
fellow Senators. One of the things I haven't had a chance to say 
publicly, or even privately, to the Senator from Kentucky is how much I 
enjoy serving with him.
  As a boy, I used to listen to baseball games--no television; we used 
to listen to the games. Of course, Jim Bunning was one of the people 
who pitched those great ball games. Then, of course, I watched him do 
all the great things he did later on. And now, to serve in the Senate 
with a member of the Baseball Hall of Fame, for somebody who wanted to 
be a baseball player--that was what I wanted to be until I found out I 
wasn't good enough--is really one of the pleasures of my life--to say I 
served with somebody who is in the Baseball Hall of Fame.
  Mr. President, I will send a cloture motion to the desk.
  Mr. BUNNING. Will the Senator yield?
  Now you have switched your allegiance to a fellow who lives in your 
home State?
  Mr. REID. I have to admit I did give a statement on the floor the day 
before yesterday about another great pitcher who certainly will be a 
member of the Hall of Fame, Greg Maddux. In my statement, I said Greg 
Maddux is less than 6 feet tall, weighs maybe 10 pounds more than I 
do--not very big, clearly not as big as the Senator from Kentucky. The 
Senator from Kentucky hasn't gained much weight, if any, from the time 
he pitched. Greg Maddux is one of the great ones. On Sunday he won his 
272nd game. He has an ERA lifetime of about 2.5. He tied Cy Young's 
record of winning 15 games 15 years in a row.
  One of the interesting things I learned was that, as a 20-year-old, 
when he came up to the majors, the second game he won, he pitched 
against his brother Mike, and beat him. Mike played for the Cincinnati 
Reds at the time when he beat him.
  I haven't switched my allegiance. I can have allegiance for more than 
one great baseball player.
  Mr. BUNNING. I thank the Senator.


                             Cloture Motion

  Mr. REID. Mr. President, I send a cloture motion to the desk.
  The PRESIDING OFFICER. The cloture motion having been presented under 
Rule XXII, the Chair directs the clerk to read the motion.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close the debate on the Gramm-
     Miller amendment No. 4738 to H.R. 5005, the Homeland Security 
     legislation.
         Harry Reid, Ben Nelson of Nebraska, Hillary Rodham 
           Clinton, Debbie Stabenow, Mark Dayton, Patrick Leahy, 
           John Breaux, Tom Carper, Tom Daschle, Byron L. Dorgan, 
           Jack Reed, Jim Jeffords, Tim Johnson, Mary Landrieu, 
           Max Baucus, Daniel K. Inouye.

  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Because of the parliamentary matters we have been going 
through this afternoon, a number of Senators have come to the floor and 
have wanted to speak and have been prevented from doing that. 
Therefore, I hope things will run a little more smoothly this 
afternoon.
  I ask unanimous consent the Senator from Utah, Mr. Hatch, be 
recognized for up to 15 minutes, Senator Nelson be then recognized for 
up to 10 minutes, and Senator Nickles for 10 minutes. He told me that 
is what he wanted. Then, Senator Voinovich waited here all morning and 
part of the afternoon. I ask that he then be recognized for up to 35 
minutes to speak and that then Senator Lieberman, the manager of this 
bill, be recognized after that for up to 30 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. In that order.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Utah.
  Mr. HATCH. Mr. President, I personally want to express my regard for 
the distinguished Senator from Kentucky and his excellent remarks 
today. I think he covered the problems quite well. I personally 
appreciate the friendship we have together and the great leadership he 
provides in the Senate. I think he did a very good job. I agree with 
him.
  Mr. President, every Member of this body, and every citizen in this 
country, knows that the most critical issue facing our Nation today is 
the task of securing our homeland and protecting our country from 
further terrorist attacks. The enormousness of this task cannot be 
overstated; and its implementation is equal measures vexing and 
daunting. But we must rise to the challenge. And we must do so 
together. No less than the lives of our citizens and the security of 
our nation hangs in the balance.
  With regard to this, I pay my compliments to the distinguished 
Senator from Georgia who gave a speech this morning that was really 
very good. Senator Miller, it seems to me, has made a real effort to 
bridge the gap between Democrats and Republicans on the floor and 
otherwise. His remarks were just absolutely right on the money. I 
personally express my regards for his remarks and express my love and 
affection for him as a Senator. He is a good man, and we ought to 
listen to him.
  I speak today out of a spirit of bipartisanship. I am proud of the 
way that Congress has come together on issues of national security 
since the horrific

[[Page S9208]]

attacks of September 11. In the wake of these tragic events, members of 
the Judiciary Committee and Congress worked tirelessly to provide the 
Attorney General with the tools necessary to fight terrorism worldwide 
and protect our country. Specifically, we passed the PATRIOT Act, a 
critical set of reforms needed to unleash our government's ability to 
detect and prevent terrorist attacks, by an near-unanimous vote of 99-
1. It is my hope that enough of that robust bipartisan spirit remains 
today as we consider the landmark legislation to create the Department 
of Homeland Security. As we have just passed the anniversary of the 
terrorist attacks that killed thousands of innocent Americans, such a 
sentiment is not just sorely welcome; it is also fundamental and 
necessary and appropriate.
  Today, we face a significant new type of military threat, one far 
different than post-World War II communism. We face today the danger of 
numerous, well-financed, well-trained and completely ruthless terrorist 
groups who will stop at nothing to cross our borders and attack our 
institutions, infrastructures, people and freedoms with all types of 
weapons. They engage in unconventional warfare and are bound by no 
rules. I speak not of just al-Qaida but many other terrorist groups. 
The creation of the new Homeland Security Department is a massive task 
precisely because the terrorist threat is so pressing and pernicious.
  The proposal to create a new Homeland Security Department is the next 
logical and necessary step in our country's war against terrorism. In 
my view, there are several components that are critical to ensuring its 
success.
  One of these involves our intelligence practices. In the aftermath of 
September 11, it is abundantly clear that we must improve the 
gathering, sharing, and analyzing of information within and among our 
Federal, State and local agencies. Our nation clearly needs to have a 
centralized office that is responsible for reviewing all of the 
terrorism-related information that collected by any agency, be it the 
Federal Bureau of Investigation, the Central Intelligence Agency, the 
National Security Agency, the Defense Intelligence Agency, or one of 
the others. The Homeland Security Department is a critical step to 
ensuring that intelligence information is comprehensively collected, 
analyzed and disseminated. We must be sure not to handcuff the new 
Department's ability to do its job in this area. In particular, we must 
take pains to ensure that we do not unnecessarily limit the use of this 
intelligence within the new Department. The stakes are simply too high 
to place artificial constraints on this important function.
  Another critical area involves managerial flexibility. The new 
Department of Homeland Security must be given the ability to hire and 
retain the very best people to do the work of keeping our country safe. 
We need to give the Secretary of Homeland Security such fundamental 
management powers as the ability to remove poor performers and reward 
exemplary employees with merit-based pay raises. Believe it or not, 
under our antiquated system of Federal employment rules, it can take 
five months to hire a new employee and 18 months to fire a terrible 
worker. Most Federal employees also get annual pay raises based on how 
long they have worked for the government, not how well they do their 
jobs. The vast majority of ordinary Americans don't have such outdated 
rules in their workplaces. There is absolutely no sound reason to move 
such inefficiencies to the new Department of Homeland Security. That is 
the current law. The bill before us even expands that.

  Let me be clear: I am convinced that the vast majority of Federal 
workers do an outstanding job for our country. That is why I am not 
concerned with giving the Department of Homeland Security more 
managerial flexibility. Indeed, because most Federal workers do great 
work, they have nothing to fear and everything to gain from an improved 
system that allows their work to be rewarded through merit-based 
bonuses and raises. Only poor workers need be concerned, and they 
should be. Frankly, there is no place for underperforming or 
incompetent workers in the agency charged with protecting our safety. 
The new Department has the Herculean task of preventing terrorist 
attacks and keeping our country safe. I cannot imagine any reason why 
we would handicap it by imposing a system of rules that protect bad 
Federal workers at the expense of good ones and, more importantly, at 
the expense of our nation's safety. That is what the amendment to the 
bill by Senator Gramm and Senator Miller changes.
  The need for flexibility, in my view, must run through every corner 
of the Department of Homeland Security. The very nature of our enemy is 
quick and deliberate action; terrorists are quick to change their 
members, associations, plans, training bases, and destructive methods. 
Terrorists, moreover, come in many different shapes, colors and 
ideological bents. We must equip our security forces with the ability 
to be similarly adaptable. The Department simply must have the ability 
to adapt itself to a constantly changing enemy threat. We will fail our 
task miserably if all we end up doing is reorganizing dozens of 
inflexible agencies into a new titular Department of Homeland Security. 
If the Secretary of Homeland Security is required to keep intact within 
the Department each of the individual agency's personnel, components, 
budgets and rules, then we don't have a new department--just a 
hodgepodge of independent agencies. We will have created just another 
layer of bureaucracy. That cannot be our goal. That cannot constitute 
effective governance. For this reason, I think it is absolutely 
essential that we give the Secretary of Homeland Security the ability 
to move personnel, assets and money to best meet the rapidly shifting 
terrain of terrorist threats.
  We all recognize that the war against terrorism cannot be won simply 
by reorganizing existing government agencies into a Department of 
Homeland Security. That Department must be equipped with the tools to 
complete its task. Moreover, it is essential that we tap into the 
resources and expertise of America's private sector. The new Department 
must enlist the aid and expertise of America's businesses to enhance 
our nation's security, and I am committed to making sure that the new 
Department is able to receive the uninhibited advice and counsel of our 
business leaders. It is private businesses which own and operate most 
of our infrastructure--our telecommunications, energy and financial 
systems. Our government cannot effectively fight this war against 
terrorism without their support. We must arm our agencies with the best 
technologies available, and our private sector is a critical player in 
this process, as it has been in our national defense and military. Our 
war against terrorism would be hopeless without the active innovation 
and support of private industries. We must also recognize that the 
private sector cannot realistically step up to help wage our fight 
against terrorism without some reasonable protection from frivolous 
tort litigation.

  Congress must act and must do so quickly and carefully without 
political gamesmanship. Our task is too important; we cannot afford to 
sacrifice our country's safety in the process. The threat of terrorist 
attacks on our homeland, as well as abroad, is here to stay. Our 
response to this threat requires a singleness of focus. All of us in 
Government have a duty to do all we can to protect the American people 
from future terrorist attacks.
  I have spent considerable time considering the tools that the new 
Department of Homeland Security simply must have to create an effective 
system of protecting our borders from terrorism. Having done so, I have 
reluctantly concluded that I cannot support Senator Lieberman's 
proposal, which simply cobbles together dozens of disparate agencies 
without any mechanism for adapting their personnel and missions to meet 
the challenge of the new Department. On the other hand, I find myself 
in great agreement with the central proposals of the Gramm-Miller bill. 
It is a bipartisan measure. And, as all bipartisan bills, it represents 
a series of compromises. But, I am convinced, the compromises will not, 
in my view, detract from the core ability of the Department to do its 
job and protect American lives. Critically, the Gramm-Miller bill 
provides enough flexibility for the President and the Secretary of 
Homeland Security to respond to an ever-changing, multi-headed threat.

[[Page S9209]]

  The task of guarding against terrorism is immense; the risk of 
failure is enormous. We simply cannot be bound by partisan interest 
groups in this time of war and crisis. Let us join together to pass the 
bipartisan Gramm-Miller bill so that we can feel certain that we have 
done all we possibly could to protect the mothers, fathers and children 
for whom each of us work.
  The same considerations that compel me to support the Gramm-Miller 
bill cause me to oppose the Nelson-Chafee-Breaux amendment. While this 
amendment is a slight improvement from the Lieberman substitute, it 
still ties the President's hands much too much. Like the Lieberman 
substitute, the proposal cuts back on the President's existing 
authority to decertify the union affiliation for workers in the new 
Department in the interests of national security. This would be a step 
back under any circumstances; it certainly is not a forward-thinking 
way of creating a successful new Department of Homeland Security. 
Moreover, the amendment allows the unions to arbitrate any attempt by 
the President to loosen the civil service rules governing promotions 
and dismissals. I think I need to be entirely candid on this issue: how 
many members of this body would feel good about these rules if it took 
us 5 months to hire a staffer and 18 months to fire an incompetent one? 
How many of us would stand up and support such a system if it affected 
the way we do business?
  There is not one of us who would do that. And that is what we will 
get if we have the underlying bill.
  In all honesty, I think it is time to bring this matter to a close.
  I personally have seen how the majority has loaded up the tree with a 
bunch of Democrat amendments in an attempt to prevent a vote on the 
Gramm-Miller amendment. We intend to have a vote on the Gramm-Miller 
amendment, and the sooner the better. It may be that the majority will 
win on that amendment; it may be that they won't. But that is the 
nature of the process around here. We can't keep playing parliamentary 
games with homeland security. That is what is going on around here. 
That is the reason I have come to the floor. I don't come to the floor 
that often to raise Cain. And I am not raising Cain here, I am just 
speaking frankly.
  I think it is time for us to get about voting on these two different 
aspects of the bill. We ought to vote on the Gramm-Miller bill. There 
will have to be a vote on it. We ought to vote on the underlying bill, 
if that is the case--the Lieberman bill. I am not objecting to that. I 
don't think our side is objecting, nor is our side filibustering. We 
just want to be treated in a decent, honorable fashion; that is, give 
us a vote on the Gramm-Miller amendment, or the Gramm-Miller 
substitute, to put it in better terms.
  I get a little tired of politics around here, especially now that we 
are dealing with homeland security. That is what the President was 
criticizing. I hate to say this, but I saw the remarks of the 
distinguished majority leader earlier. It was on all three cable 
networks, as far as I could tell. Those remarks implied that the 
President was politicizing Democrats. That is not the case. The 
President did say we are muddling around here. He didn't say it in 
those terms. I will put it in these terms--muddling around with this 
homeland security bill instead of voting up or down and getting the job 
done.
  That is what we need to do. We don't need to have any distortions of 
what the President said or what Vice President Cheney said.
  That is what I think, unfortunately--I am sure it was sincere and 
well intentioned--was a distortion, but it is still a distortion.
  I think it is time we get rid of those types of attempts to have 
political games at the expense of a bill of this importance. That is 
what the President is driven by.
  After seeing all the weeks that we have been on this bill, I think 
the President is justified in his criticism.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. NELSON of Nebraska. Mr. President, I appreciate the opportunity 
to rise in support of the Nelson-Breaux-Chafee amendment which is a 
bipartisan compromise on homeland security.
  I believe perhaps some clarification is in order because there seems 
to be some misinformation or misunderstanding about what this bill 
does.
  My good friend from Utah said the amendment ties the President's 
hands. We have looked very carefully at existing authority that the 
President has in similar circumstances at this very moment. And it 
doesn't tie the President's hands.
  I must say Nebraska is going to be playing Texas at Texas A&M. My 
good friend from Texas is my hunting partner. Senator Gramm is not 
going to move the goalposts down in Texas when we play A&M. We are not 
going to move the goalposts on Texas when Texas plays in Lincoln. I 
don't think it is about moving goalposts in athletic events. But I 
believe on this amendment we have had the goalposts moved on us.
  Just recently, while I was presiding, Senator Gramm, in talking about 
the Lieberman bill, referred to the fact that it was too restrictive on 
the President's authority in the area of collective rights and 
bargaining rights, or in terms of civil service protection. At that 
point, he believed it tied the President's hands in dealing with these 
very important issues when it comes to national security.
  It was partly as a result of his comments at that time that I thought 
we would try to find a compromise that could deal with the situation.
  Let me read from some of Senator Gramm's comments that he made on the 
floor, I believe, just last week.
  He was talking about the fact that when we decided to federalize 
inspectors at airports, in that bill we gave the President power in 
terms of personnel flexibility to hire and fire, and we gave him the 
ability to get around the normal procedures that require up to 6 months 
to hire somebody. Then he goes on to say we have done that same sort of 
thing in the Federal Aviation Administration.
  Then he goes on and references the Internal Revenue Service. I quote:

       I ask my colleagues: If we believed that the current system 
     was failing us in the Internal Revenue Service and that we 
     had a problem which required a different approach and more 
     flexibility with regard to our sensitivity at the Internal 
     Revenue Service with people who know our intimate financial 
     information and who look at our tax returns. If we believed 
     that flexibility to administer that Department was 
     necessary--and we did, and we adopted it and it is the law of 
     the land today--I wonder what people back home would think 
     when we said we thought flexibility was required at the 
     Internal Revenue Service. . . .

  In other words, he says what we did in the Internal Revenue Service 
reorganization was OK.
  That is what he said last week.
  Well, lo and behold, because of his commitment to that particular 
flexibility, that is exactly the kind of language and that is the 
reference we have in this amendment.
  If it was good enough for last week, it seems to me it ought to still 
be good enough for this week and next week and the week thereafter.
  So if this isn't moving the goalposts, it is at least shifting around 
on the answers. And I believe that what was good enough last week, and 
what is good enough for the Internal Revenue Service to deal with 
flexibility, is good enough for homeland security.
  Then the White House, through various spokespersons, has raised a 
question about whether the President's hands would be tied with what we 
are proposing.
  But lo and behold, Governor Ridge--who took advantage of me with a 
bet on the Penn State-Nebraska game, which I shall pay him very vividly 
for--went ahead and said something in his letter to Senator Lieberman 
that I thought was important.
  This is in his letter dated September 5, 2002:

       Senator, the President seeks for this new Department the 
     same management prerogatives that Congress has provided other 
     departments and agencies throughout the Executive Branch. For 
     example:
       . . . personnel flexibility is currently enjoyed by the 
     Federal Aviation Administration--

  And guess what--

       the Internal Revenue Service, and the Transportation 
     Security Administration.

  I do not know what has changed since September 3 or last week, 
because we thought this would be acceptable,

[[Page S9210]]

given the fact that the President needs the kind of historic personnel 
flexibility he is seeking.
  So for those who said we are changing the laws, or we are somehow 
restricting the Presidential authority, or tying the President's hands 
by changing the law, apparently they have not focused on what the 
current status of the law is because they are asking for what we are 
trying to provide them at the present time.
  Now, I don't know whether someone hasn't read the amendment, but some 
of the criticisms I have heard of the amendment would indicate they saw 
a previous iteration. It seems to me the current state of affairs with 
our amendment would be directly on point or on all fours with what has 
been asked.
  So I am very anxious to see if we can get a clarification because I 
think it has to be some sort of a simple mistake. I cannot believe that 
we have been asked to do something, or it has been suggested that this 
would be OK, and then, when we offer it, that somebody cannot take yes 
for an answer. I hope this will be clarified.
  It is also important to say that binding arbitration and personnel 
flexibility is part of the IRS Restructuring and Reform Act of 1998, 
which both Governor Ridge and Senator Gramm have suggested was OK. So 
it seems to me that whether it was binding arbitration, personnel 
flexibility, or, in the case of Presidential authority, in terms of 
exempting union membership, union employees, from collective bargaining 
membership, we have done exactly what others have been asking us to do.

  So it seems to me that if the people are as anxious as they seem to 
be, both in the administration and on the other side of the aisle, to 
get the Gramm-Miller amendment considered, the first step is to pass or 
at least have a vote on Nelson-Breaux-Chafee because it will, in fact, 
give us an opportunity to have that vote, and I think another vote 
shortly thereafter, if necessary, on Gramm-Miller.
  I do not know what more a person can do today than give the other 
side the kind of answers they are seeking and the kind of solution for 
which they have been asking. I hope this will be clarified. If there 
are some misunderstandings--as I think it may be a simple 
misunderstanding--I hope some other people will show up and respond to 
what we have put out there at this point in time.
  Very often, misinformation, a lack of information, 
mischaracterizations, and things such as that can drive the day. I hope 
they do not drive this day. National security is too important, and 
passing this homeland security legislation is of the utmost importance.
  So for those who are suggesting there is any effort to delay it or in 
some way tie the President's hands, this simply does not do it. It is 
consistent with existing law, and it gives the President ample 
authority to do what the President needs to do for personnel, for 
collective bargaining, and for breaking the logjam in the homeland 
security debate, which is so important to the future of our country.
  Passion runs deep: passion about Iraq, passion about homeland 
security, passion about getting something done as quickly as possible. 
I hope we can use that passion as a basis to accomplish something.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Johnson). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KYL. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Mr. President, I rise to speak for a little bit of time 
until Senator Nickles from Oklahoma arrives, and ask unanimous consent 
that he then be permitted to speak.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Mr. President, I simply want to respond, very briefly, to 
what I saw this morning on the television when I was observing the 
activity on the floor.
  I saw the majority leader come to the floor and give what I thought 
were very intemperate remarks suggesting that--not suggesting--
demanding that the President of the United States apologize, allegedly 
for politicizing the war effort.
  My belief, after looking at all of the transcripts of the comments 
that were attributed to the President and the Vice President--and I 
have them all right here, as well as the newspaper accounts of the 
same--it suggests to me that it is not the President but the 
distinguished majority leader who needs to apologize.
  I say that because it is very clear the President has not politicized 
anything with respect to this war. The comments in which he criticized 
the Senate--and I believe rightly so--have to do with our failure to 
adopt a homeland security bill. And he referred to the special 
interests that have been involved in impeding action on the bill, and 
complained about the fact that the Senate has not followed the 
leadership of the House and passed a bill.
  As a matter of fact, earlier today the Senate precluded a vote on the 
President's plan. When Senator Gramm sought to have an opportunity to 
vote on the President's plan, that was turned down.
  So we have a situation in which the Senate, for the fourth week now, 
is debating the homeland security bill--has not passed it, will not 
even let the President have a vote on his proposal--and the majority 
leader suggests the President is politicizing national security.
  The President is right to complain about that. But what the President 
did not do was to connect any activity of the Senate, or Democrats in 
the Senate--or anybody else, for that matter--to the war effort, as was 
inferred by the majority leader.
  The majority leader attempted to take quotations that dealt with 
homeland security and transform them somehow or other into criticism of 
Democrats in the policy with respect to Iraq. And that simply is not 
true. It did not happen. For that reason, as I say, it seems to me the 
majority leader ought to be the one offering the apology, not the 
President.
  I had been talking, just before watching this, about the damage that 
was being done to the attempts by the President to reach an 
international consensus in developing a plan for dealing with Iraq by 
the comments of German Chancellor Gerhard Schroeder during his 
election. And both Dr. Rice and Secretary Rumsfeld have noted the fact 
that those comments were not helpful and poisoned the atmosphere.
  They poisoned the atmosphere internationally by, in effect, 
confirming what Saddam Hussein is saying, that the President is acting 
out of political motives rather than out of a desire to achieve peace 
in the world. When the distinguished majority leader comes to the 
Senate floor and seemingly validates those same criticisms of the 
President, he is further poisoning the atmosphere.
  That is another reason why he owes the President an apology. He is 
literally politicizing the issue in a way that is destructive to the 
President's attempt to achieve an international consensus.
  I find it ironic because it is the other party that has sought to 
assure the President would gain that consensus internationally, many of 
them suggesting that is necessary before we act, and then that very 
attempt is being undermined as a result of the comments made here.
  Mr. ROBERTS. Will the Senator yield?
  Mr. KYL. I am happy to yield.
  Mr. ROBERTS. I ask the Senator from Arizona if he is aware, along the 
same vein of comments that were made by the distinguished majority 
leader in reference to the Vice President--I share the same concern he 
has mentioned--is the Senator aware when the Vice President was in 
Kansas, basically they are accusing the Vice President of politics in 
regard to the Iraq debate in urging an audience in Kansas to vote for a 
GOP congressional candidate?
  Mr. KYL. I am aware of the fact the majority leader alluded to that. 
But he was only looking at a headline in a newspaper. I know the 
Senator from Kansas was actually at the event.
  Mr. ROBERTS. I would respond to the Senator by simply indicating, 
there is nothing that hurts the truth more than stretching it.
  I understand if somebody reads a headline and gets upset about it. I 
would, too. But the headlines I have

[[Page S9211]]

from the Kansas press--and the Senator is correct; I was at the meeting 
and introduced the candidate. The candidate introduced Lynne Cheney, 
the wife of the Vice President. The Vice President gave a very standard 
speech. Here is the headline, ``Cheney Talks About Iraq at 
Congressional Fundraiser.'' He said that our candidate would be ``an 
effective voice for Kansas, a fine addition to your State delegation, 
which is already one of the best in the country,'' which I appreciated. 
But I find nothing here that has anything to do with politics.
  And then here is another one, ``Fundraiser for Taff Draws 500.'' From 
the Kansas City Star, ``Cheney Talks Tough at Taff Fundraiser.'' But 
the two things were separated. It was a very sobering discussion on the 
policy of preemption and what we face in Iraq.
  As a matter of fact, the Vice President, in a private session, said 
the Congress ought to be asking tough questions, which we are, and 
urged bipartisan support. I heard every word. For the life of me, I 
just did not hear that kind of inference at all. I wanted to come to 
the floor--I thank the Senator for yielding to me--to indicate that 
simply was not the case. If we are into a situation where we are 
inferring we are trying to politicize this effort, that is not the case 
with the Vice President. We can't be in the business of the security of 
the American people and sending wrong messages to Saddam Hussein unless 
we get the facts straight.
  In doing that, I am not trying to perjure the intent or the concern 
of the distinguished majority leader. It just did not happen. I wanted 
to set the record straight.

  Mr. KYL. I appreciate that from the Senator from Kansas. I know the 
majority leader this morning a little bit later, in talking to 
reporters in response to a question, said he was relying upon the 
newspaper accounts of what had been said. But I suggest that while that 
might ordinarily be all right, the press can make mistakes, and when 
you are accusing the President of politicizing a war effort, you better 
be correct. We have gone back and actually looked at the stories, and 
the Senator from Kansas makes a point, too. The Vice President is a 
very careful person. He is not prone to politicizing things.
  I will conclude by saying it is very important for us to keep our eye 
on who the enemy is. The enemy is the terrorists. The enemy is Saddam 
Hussein. The enemy for none of this is President Bush. I don't think we 
should be raising questions or throwing around allegations that 
undercut what ought to be a common effort from everybody in this 
country as well as this body to ensure we have the kind of consensus 
that will enable us to prosecute whatever war we prosecute in a way 
that enjoys both support in the United States and abroad. The kind of 
tirade entered into here this morning undercuts that effort. It does 
not assist.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. VOINOVICH. Mr. President, I ask unanimous consent to add 10 
minutes to the time allocated to me under the order.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. VOINOVICH. Mr. President, I rise today to talk about the 
Lieberman homeland security bill, the Gramm-Miller amendment, and the 
Nelson-Chafee-Breaux amendment to that amendment.
  Before I do that, I will comment on the fact I am really disturbed at 
what I see going on here in the Senate in terms of the President of the 
United States. Our President has more on his plate than perhaps any 
President in my memory. He has the Middle East situation. I have been 
studying that for 20 years. That is more fragile than I have ever seen 
it during my lifetime.
  We are in Afghanistan. We have forgotten we are there. That is a 
major undertaking. We are trying to work diplomatically to make sure 
Pakistan does not go after India and India after Pakistan, which could 
embroil us in a nuclear situation.
  We have a problem with Saddam Hussein in Iraq. We have a domestic 
economy in bad shape today. People in this country are losing faith in 
our financial markets. We are in a very fragile, shaky period.
  What we should be doing in the Senate is rallying to the cause to try 
and be as supportive as we can of the President, who is trying to rally 
the world and the United Nations and our allies in dealing in a 
responsible way with Saddam Hussein, who has thumbed his nose at us for 
so many years and has set up a new paradigm in terms of the United 
Nations where they will work together to make it very clear they will 
not tolerate people such as Saddam Hussein.
  I was going to say it is business as usual in the Senate; I just wish 
it were business as usual. I hope my colleagues on both sides of the 
aisle will start to understand the American people are watching what we 
are doing here, and it is important that we behave in a way that gives 
them confidence that we are more interested in moving our country ahead 
than we are in partisan politics.


                HUMAN CAPITAL AND THE FEDERAL WORKFORCE

  Mr. VOINOVICH. Mr. President, since my election to the Senate in 
1998, I have given top priority to a public policy issue that seldom 
gets the attention it deserves: The challenges of our Federal 
Government's civil service system.
  For nearly 4 years, I have used my position as a member of the 
Governmental Affairs Committee and chairman and ranking member of the 
Oversight of Government Management Subcommittee, to focus the spotlight 
on this critically important issue. As I learned more about the 
condition of our Federal Government's personnel system, it became 
crystal clear we are in the midst of a human capital crisis in the 
United States Government, one which will only get worse unless this 
Congress acts decisively to address it.
  What is it? Is it real? Why do we have it? The human capital crisis 
is, simply stated, the inability of the Federal Government to properly 
manage its workforce. Robust personnel management includes the ability 
to recruit the best candidates, hire people in a timely manner, award 
performance bonuses and other motivational tools to encourage 
retention, provide training and professional development opportunities, 
and the flexibility to shape a balanced workforce.
  Good management includes the flexibility to act quickly and to 
compete as an employer of choice in the fast-paced 21st century 
knowledge economy.
  Unfortunately, at present, the Federal Government's ability to use 
such tools is not what it could be. By now, we have all heard the 
statistics, and maybe some of my colleagues have not heard them. The 
average Federal employee is 47 years old. By 2005, more than 50 percent 
of the 1.8 million person Federal workforce will be eligible for early 
or regular retirement.
  Even more incredible is the fact that by 2005, 67 percent of the 
Senior Executive Service will be eligible for regular retirement, and 
an additional 21 percent will be able to retire early. This is an 
astounding 88 percent of our top-level workers, managers, department 
heads, and division chiefs.
  I was talking to businesspeople this morning, and they said: 
``Explain to us what this is about.''
  I said: ``Consider your own businesses. Say during the last 10 years 
you were eliminating employees without any regard for how that would 
affect your mission, or how high-tech manufacturing and information 
technology has changed your business. Then imagine half the remaining 
people working in your plant are going to retire soon. Then imagine 
that about 88 percent of your top managers are going to retire also. 
Where would you be today?'' They got it.
  I remind my colleagues, this dire predicament refers to what could 
happen in the next 2 to 3 years, but it is virtually impossible to 
predict accurately the amount of experience and institutional knowledge 
that is literally going to walk out the door at the end of this decade.
  Some may ask: Is the human capital situation really that important? 
Is it really a crisis in the Federal Government?
  Consider some additional evidence we have learned from officials in 
some of the agencies that handle national security and finances, such 
as the CIA, FBI, FEMA, Social Security Administration, and Department 
of Commerce.
  CIA Director George Tenet, in recent congressional testimony, said 
within 3

[[Page S9212]]

years, between 30 and 40 percent of his workforce will have been there 
for less than 5 years.
  According to a recent GAO report, more than 70 agencies have foreign 
language needs, and staff shortages at those agencies, such as the FBI, 
``have adversely affected agency operations and hindered U.S. military, 
law enforcement, intelligence, counterterrorism, and diplomatic 
efforts.''
  Mr. President, do you remember after 9/11? The call went out: We need 
people who can speak Arabic and Farsi. Incredible. Ten years after the 
Persian Gulf war, we remain actively involved in the Middle East, yet 
we do not have enough people who speak Farsi and Arabic in the FBI, the 
State Department, or the CIA.
  At FEMA, retirements have accelerated since 9-11-2001 as employees 
have reevaluated priorities, and nearly 50 percent of the remaining 
workforce will be eligible for retirement in the next 18 months.
  According to a recent Federal Times survey of more than 2,200 
managers at our Social Security Administration, dramatic downsizing in 
the ranks of managers and front-line employees has hurt training, 
caused burnout, strained resources, reduced managers' effectiveness, 
and created disconnects between headquarters and field offices, all at 
a time when the agency's workload is skyrocketing.
  According to GAO, the Department of Commerce is unable to effectively 
monitor U.S. trade laws with foreign countries due to a shortage of 
staff with the right expertise.

  Mr. President, the evidence is clear. The Federal Government has a 
serious human capital crisis. That is why I have sought information 
from some of the best minds in the country over the past few years in 
public policy and management, and why I have spent so much time 
listening to the people closest to the problem.
  Furthermore, Mr. President, I believe that if a Federal agency or 
department is important enough to receive the hard-earned tax dollars 
of my constituents and yours, we have a moral responsibility to see to 
it that the people's money is spent wisely. Outdated personnel 
practices and lack of training not only put agencies at risk of not 
being able to fulfill their mission and provide needed services to the 
American people, this also represents wasteful Federal spending. We 
simply must provide the flexibility agencies need and give them the 
right tools to do their work.
  I have sought to attract attention to this issue at every 
opportunity. My subcommittee held 10 hearings from July 1999 to March 
of 2002. Two of those hearings were held by Chairman Durbin, and I 
thank him for his willingness to work with me on this issue.
  Earlier this year, Senator Akaka held 2 days of legislative hearings 
on civil service reform. I also recognize his leadership and 
partnership on this issue. I sincerely appreciate their assistance in 
raising the profile of our pressing human capital challenges.
  Also, in December of 2000, just before our new President took office, 
I released a comprehensive report on this subject ``The Report to the 
President: The Crisis in Human Capital'' which summarized our 
subcommittee's activities during the 106th Congress and made 
recommendations to the incoming administration on how to address the 
Government's human capital challenges.
  Mr. President, I want you to know I have not been alone in my 
assessment of the situation. In 2001, Comptroller General of the United 
States David Walker designated human capital on the General Accounting 
Office's ``High-Risk List.'' In the past, other areas that were on the 
list, such as the Y2K problem, the 2000 census, the Superfund Program, 
and the Department of Agriculture's farm loan programs, received 
attention and priority, and they no longer threaten the operations of 
the Federal Government. As Congress did with these issues, we must 
prioritize human capital; otherwise, this crisis will persist.
  Dr. Joseph Nye, Dean of Harvard University's Kennedy School of 
Government, one of the top public policy schools in the Nation, also 
identified the Federal Government's human capital crisis as a critical 
issue. The problem truly hit home for his academic institution. During 
the nineties, increasing numbers of Kennedy School graduates, despite 
their top-notch graduate level training in public policy, chose 
employment in the private and nonprofit sectors rather than work for 
the Federal Government.
  Dr. Nye noted he did not want the Kennedy School to be known as the 
second best business school in Cambridge! As a result, he organized a 
series of executive sessions during the 2001-2002 academic year, 
bringing together approximately 30 leaders on human capital management 
from the public, private, and nonprofit sectors: For example, 
professors from Harvard, Stanford, Wharton, CEOs, and former senior 
officials at the Departments of Treasury, Labor, Office of Federal 
Procurement Policy, and Office of Management and Budget. I attended 
three of the four sessions and found them productive and insightful.
  In addition, the U.S. Commission on National Security in the 21st 
Century, a bipartisan group chaired by former Senators Gary Hart and 
Warren Rudman, released a series of reports providing a comprehensive 
evaluation of our national security posture.
  We have been talking a lot about national security, haven't we? Their 
reports included many recommendations on homeland security which we are 
considering in this bill that is before the Senate. The Commission's 
final report concluded as follows:

       As it enters the 21st century, the United States finds 
     itself on the brink of an unprecedented crisis of competence 
     in Government.

  Unprecedented crisis.

       The maintenance of American power in the world depends on 
     the quality of the U.S. Government's personnel, civil and 
     military, at all levels. We must take immediate action in the 
     personnel area to ensure the United States can meet future 
     challenges.

  Furthermore, in his testimony before our committee, former Defense 
Secretary and member of the Commission James Schlesinger added:

       It is the Commission's view that fixing the personnel 
     problem is a precondition for fixing virtually everything 
     else that needs repair in the institutional edifice of U.S. 
     national security policy.

  Mr. President, yet another poignant illustration was offered by FEMA 
Director Joe Allbaugh when he testified before a Senate committee 
earlier this year. I note FEMA is one of the key agencies in the 
proposed Homeland Security Department. In describing his workforce 
needs, Director Allbaugh said:
  We have not been spending enough time internally on our employees. 
Before 9/11, retention was a problem and there was essentially no 
recruitment. Over the next 18 months, nearly 50 percent of our agency 
is eligible for retirement, and since 9/11, retirements have 
accelerated. The people who worked at Ground Zero came to my office 
with a different perspective on life. They want to spend more time with 
their kids, grandkids, and spouses.
  I think these comments represent the feelings of many Federal 
employees, and Director Allbaugh's testimony calls attention not only 
to the urgent need for reform of our civil service laws, but also for a 
completely new mindset for considering the Federal Government's 
personnel requirements and workforce culture.
  Mr. President, if that is not a compelling call to address this 
issue, I do not know what is. Despite all the evidence that significant 
human capital challenges exist in the Federal Government, this issue 
has not received the attention it deserves. To its credit, the Bush 
administration has taken steps to raise the profile of this issue. In 
fact, strategic human capital management is one of the five 
governmentwide issues targeted for reform in the President's management 
agenda, which was released in August of 2001.
  Having recently marked the 1-year anniversary of the horrendous and 
unprecedented terrorist attacks on the United States on September 11, 
the Senate is considering legislation designed to reorganize our 
Federal Government in a way that will help our Nation prevent future 
such attacks.
  Suddenly, in the context of this debate, civil service reform is the 
issue du jour. It is an issue which for years has not been 
substantively addressed except when agencies become dysfunctional. It 
is now front and center in the consideration of the most important

[[Page S9213]]

Government reorganization to take place in our Nation in half a 
century. It is about time.
  In the debate over homeland security, we have backed into this 
personnel issue that has demanded attention for so many years. At least 
we are finally taking the first step to address the problem by having a 
debate on the subject. We are talking about personnel practices and the 
people who make a difference for the Government and deliver the 
services.
  Unfortunately, however, this debate is limited to the proposed 
Department and not to the needs of the entire Federal Government. The 
entire Federal Government needs new flexibilities. Congress last 
enacted major civil service legislation for the entire Federal 
Government 24 years ago in 1978. In today's fast-paced, high-tech 
world, the 1970s represent almost prehistoric times when people were 
still using typewriters and the only computers were mainframes. To 
operate effectively, the Federal Government cannot afford to revise its 
personnel laws only every quarter or half century. The basic 
classification and compensation system for the Federal Government dates 
back to World War II, when the professionals in the civil service had 
jobs as clerks and typists and were at GS levels 2 and 3. Today's civil 
service professionals are typically GS-12s and GS-13s. So much has 
changed over the years, and changing times require new thinking and new 
laws--policies that allow flexibility in our Federal Government 
civil service system.

  The intellectual basis for one of the areas I have sought to reform, 
competitive hiring, dates back to the Grant administration! Back then, 
our soldiers were using single-shot, repeating rifles, the telegraph 
was cutting-edge communications technology, and the primary mode of 
transportation was the horse! That was when we started the ``rule of 
three.''
  I know of no successful business anywhere in the world that is using 
a personnel system based on management theory that is more than 50 
years old, or which dates from the Industrial Age.
  During the 107th Congress, I have worked with some of the Nation's 
premier experts on public management to determine what new 
flexibilities are necessary to create a world-class 21st century 
workforce, and to draft legislation based on their insights. These 
individuals include some of our colleagues in Congress, including 
Senator Akaka; officials of the Bush administration such as OPM 
Director Kay Coles James; former OMB Director Sean O'Keefe, who now 
heads up NASA; Clinton administration appointees who spent a lot of 
time on this, including Steve Kelman, the former Administrator of the 
Office of Federal Procurement Policy; and Elaine Kamarck, a domestic 
policy adviser to then-Vice President Gore--this is a bipartisan 
effort; Federal employee unions such as the American Federation of 
Government Employees, with their president, Bobby Harnage, and the 
National Treasury Employees Union, NTEU, and their president, Colleen 
Kelley; representatives of public policy organizations such as the 
Council for Excellence in Government, Partnership for Public Service, 
Private Sector Council, Brookings Institution, National Academy of 
Public Administration, and the Volcker Commission; and subject experts 
in some of our country's top educational institutions, including Dr. 
Jack Donahue of Harvard's Kennedy School of Government.
  I was especially attentive to the concerns of unions, making several 
significant changes to my draft legislation since last summer to allay 
their uneasiness with some of its flexibilities. I felt it was 
important. As someone who dealt with 25 unions when I was mayor, and 
with 5 unions when I was governor, I know it is important that unions 
be at the table and that their input be taken into consideration.
  We made changes that include new language to clarify that the intent 
of my proposed early retirement and buy-out authority is workforce 
reshaping, not the downsizing of the 90s; as well as the revision of 
removal of provisions that enjoyed strong support from other 
stakeholders, including the establishment of a public/private exchange 
program to cross-pollinate good management ideas between sectors of the 
economy.
  In other words, we tried to accommodate the concerns of our union 
representatives.
  Finally, Mr. President, I note that my bill was the subject of a 
letter to Chairman Lieberman and other members of the Governmental 
Affairs Committee, a letter of support for the legislation was signed 
by 29 Kennedy School executive session participants. By combining my 
reform proposals with those of the administration, both of which I 
introduced last fall, I was able to develop a package of consensus 
human capital reforms that I believe will have a positive impact on the 
Federal Government's personnel management.
  On June 20, along with Senators Thompson and Cochran, I introduced 
that consolidated bill, S. 2651, the Federal Workforce Improvement Act, 
a measure that is designed to get the right people with the right 
skills in the right jobs at the right time.
  In July, during its consideration by the Governmental Affairs 
Committee, working with Senator Akaka, I successfully amended key 
provisions of this bill to the homeland security legislation, and I 
really appreciate the bipartisan support we received for those changes. 
I am grateful to Senator Akaka for that. I only wish we had put more of 
S. 2651 into the homeland security bill.
  I hope as we wrap up homeland security--at least I hope we wrap it 
up, my colleagues will conclude we should adopt the rest of the 
provisions of S. 2651 in this important legislation.
  Let us get it done all at once. The provisions we have already 
included will have an impact not only on the new Department but on all 
Federal agencies. The Voinovich-Akaka language will help the Federal 
Government begin to address its human capital challenges, challenges 
that extend far beyond the corridors of the proposed Department of 
Homeland Security. These flexibilities are not as comprehensive as what 
we were proposing for the new Department, but they represent a good 
start on the path of reform in this critical area that has not received 
adequate attention by past administrations or Congress.
  It does the following: Creates Chief Human Capital Officers at the 
Federal Government's 24 largest departments and agencies, officials who 
have responsibility for selecting, developing, training and managing a 
high-quality workforce; establishes an Interagency Chief Human Capital 
Officers Council chaired by the OPM Director, to advise and coordinate 
the personnel functions of each agency and meet with union 
representatives at least annually; requires OPM to design a set of 
systems, including metrics, for assessing agencies' human capital 
management, something that has been largely ignored; reforms the 
competitive service hiring process, allowing agencies, consistent with 
merit principles, to use an alternative category ranking method for 
selecting new employees instead of the ``Rule of 3,'' making the 
process more efficient and fair, a practice that has been very 
successful at the Department of Agriculture for the past decade; 
provides governmentwide authority for offering voluntary separation 
incentive payments and voluntary early retirement, buyouts and early-
outs, for the purposes of workforce reshaping, not downsizing. This 
authority, which I was able to secure with legislation 3 years ago, is 
currently being used effectively on a limited basis for civilian 
employees at the Department of Defense.
  It also lifts the total annual compensation cap for senior 
executives, allowing performance bonuses to be paid in full in a single 
year; and it reduces restrictions on providing academic degree training 
to federal employees, thereby emphasizing the importance of individual 
professional development.
  In light of the fact that there has not been government-wide civil 
service reform in a quarter century and, as the Hart-Rudman Commission 
noted, personnel is the basis for maintaining national security, it is 
absolutely appropriate that this legislation be included in the bill to 
create the Department of Homeland Security.
  I thank Senators Gramm and Miller of their willingness to consider my 
proposals which represent extensive efforts to address the Federal 
Government's personnel challenges during my 4 years in the Senate, and 
for including the Voinovich-Akaka language in their substitute 
amendment. I believe it is a

[[Page S9214]]

strong addition that also has the administration's support.
  As I said, I hope we'll be able to add the balance of S. 2651 to the 
homeland security bill before we conclude this debate, because these 
reforms are badly needed.
  The Homeland Security Department is not the first, and not the last, 
agency that needs to have greater flexibility. Even more comprehensive 
flexibilities and reforms, similar to those proposed in the Gramm-
Miller substitute for the Department of Homeland Security, which I will 
describe in a moment, are needed at other agencies as well, including 
the Department of Defense and NASA. These agencies may provide the 
impetus for Congress to return to this issue next year.
  In fact I asked Senator Warner and Senator Levin, when they were 
considering the Defense Authorization bill, to give consideration to 
accepting some personnel flexibilities that the Department of Defense 
wanted. I know from Secretary Rumsfield that they will be coming back 
asking for those flexibilities.
  It is my hope that the incremental provisions I have developed with 
my colleagues and a diverse group of stakeholders over the course of 
the last year will assist the rest of the federal government while we 
consider next steps.
  I would like to take a few moments now to discuss the personnel 
provisions in the Gramm-Miller substitute that apply specifically to 
the new department. I have worked with Senators Gramm and Miller on 
these provisions and believe this language will provide the Department 
with the tools it needs to get the job done, and at the same time 
respects the rights of those union workers being transferred into the 
new department.
  I say this because I am close to the leadership in both of our major 
unions. They have some concerns. I tried to get the administration to 
sign an Executive order continuing partnerships between unions and the 
Federal Government. Unfortunately, this did not happen. The 
administration also included competitive sourcing on the President's 
Management Agenda, setting targets that each department had to meet in 
order to receive a green light on the Management Scorecard. I said, if 
you tell an agency head that he must outsource 10 percent, 15 percent, 
20 percent--instead of trying to shape his department with the people 
he has and give them training, he will spend all his time figuring out 
how he is going to outsource those jobs.
  The proposed Department of Homeland Security will merge nearly 
170,000 employees from more than 20 Federal agencies. This is a 
momentous undertaking. Although the creation of the Department of 
Defense in 1947 combined a larger number of civilian and military 
employees, the consolidation we are now contemplating would require 
more than a score of different workplace cultures and personnel systems 
to be effectively harmonized, all while the Nation entrusts this new 
department with the one of Federal Government's most urgent and 
important missions: to preserve the homeland and protect American 
citizens from harm. In order to accomplish this very tall order, the 
President and the new Secretary of Homeland Security will need new 
flexibility, and I believe Congress should authorize it.
  In recent years, however, Congress has engaged in management by 
scandal, only granting more flexibilities when agencies under-perform! 
For example, the FAA, IRS and SEC each received special personnel 
authorities over the last decade, but only after each of these agencies 
was singled out for its failure to achieve its mission.
  The Bush Administration has correctly pointed out that we cannot wait 
for a similar occurrence at the Department of Homeland Security, and it 
has justifiably sought broad flexibility for the new department before 
any mission failures occur.
  On a related matter, Mr. President, it is interesting to note that 
the recommendations of the Hart-Rudman Commission form the intellectual 
basis for large portions of the underlying legislation we are debating 
today. Yet, while we are paying close attention to the Commission's 
recommendation to establish a new Department of Homeland Security, we 
are not seriously considering its recommendations to modernize the 
civil service system. We simply must take these necessary steps now.
  The personnel provisions in the Gramm-Miller substitute represent a 
good-faith effort to modernize the personnel system for the new 
department.
  The Quinn-Portman amendment would preserve employee rights, including 
hiring and promotion based on merit and equal pay for equal work, and 
would protect employees from improper political influence and reprisal 
for whistle-blowing. Employees would still be protected from prohibited 
personnel practices, such as illegal discrimination, politicization of 
the hiring or promotion processes, and violation of veterans' 
preference requirements. I notice my friend, Senator Akaka  was talking 
about the fact that whistle blowing is not involved in the amendment. 
We specifically talk about protection of employees against reprisal for 
whistle blowing.
  Furthermore, employees would still have the right to organize, 
bargain collectively, and participate through labor organizations of 
their own choosing in decisions that affect them.
  First, the substitute features House-passed language proposed by 
Representatives Jack Quinn and Rob Portman. In June, the President sent 
to Congress a blueprint for the personnel system he envisioned at the 
new department. The President realized that Congress would flesh out 
many of the issues in his proposal, and that is just what happened. The 
House-passed version is less flexible than what the Administration 
originally requested--it is really important to understand that--but it 
is designed to deal with the personnel flexibility sought by the 
President, and to address the collective bargaining rights that many of 
our colleagues seek to protect.
  The Quinn-Portman amendment retains most of title V's provisions. 
This is not as broad as Transportation Security Administration to which 
Congress gave blanket exemptions from title V last November.
  The language also requires that the new department collaborate with 
unions and other employee organizations in creating its personnel 
system. In addition, it includes procedures to ensure that exclusive 
bargaining units are represented by individuals designated by the union 
itself. It also provides certain safeguards for employees as the 
proposed department develops a new system for employee appeals.
  In order to ensure that the new human resources management system is 
developed in collaboration with the unions, the Quinn-Portman amendment 
provides for direct involvement by employee representatives in three 
stages of the development process.
  In the first stage, as the human resources management system is being 
designed, the Secretary and OPM Director must provide a written 
description of the proposed system or adjustment to the system; allow 
each employee representative at least 60 days to review and make 
recommendations on the proposal; and give any such recommendations full 
and fair consideration in deciding whether or how to proceed with the 
proposal.
  At the second stage, when the Secretary and OPM Director decide to 
implement a human resources management proposal, they must, prior to 
implementation: give each employee representative details of the 
decision along with information upon which the decision was based; give 
each employee representative an opportunity to make recommendations; 
and give such recommendations full and fair consideration. If any 
employee representatives' recommendations are not proposed to be 
implemented, the Secretary and Director must explain why.
  During the third stage, once a human resource management system 
proposal is implemented, the Secretary and OPM Director must develop a 
method for each employee representative to participate in any further 
planning or development.
  The Quinn-Portman amendment also fleshes out the Administration's 
original proposal by providing necessary flexibilities in six key 
areas: performance appraisals, classification, pay rates and systems, 
labor-management relations, adverse actions, and appeals. Each of these 
areas would be open to modernization, subject to the explicit 
limitations included in the language to protect employees, which, as I 
have

[[Page S9215]]

just delineated, are comprehensive, and rooted in current civil service 
law.
  We currently have pending a second-degree amendment to the Gramm-
Miller amendment from Senators Ben Nelson, Chafee and Breaux.
  They would like to reduce the six areas of flexibility to four. I 
happen to believe that the administration, in order to create this new 
Department, is going to need those six areas of flexibility to get the 
job done.
  Based on my experience as mayor and Governor, I thought it also would 
be a good idea to have the Secretary negotiate as opposed to consult 
with union representatives in the six areas in which the administration 
is seeking flexibility. My belief in that regard comes about as a 
result of my experience over the years. In other words, after the 
consultation and the negotiation occurred, there would be an impasse 
panel that could be appealed to for a final decision.
  I thought that would be helpful because it would make the negotiation 
more robust and there would be fewer areas of disagreement. Once it was 
over, the parties could say the matter was taken to a third party and 
decided. That is the way it should be decided.
  In other words, and I want to point out to my colleagues, the success 
or failure of the administration to get the job done is going to depend 
on the relationship they develop with our labor unions and other 
Federal employee organizations. If there is consensus, if there is 
openness and a sense of fairness, this will be a great success. On the 
contrary, if it is an adversarial relationship, one that is not open, 
one where we don't have the discourse that we need, it will be a 
failure.
  I have reorganized as Governor. I have combined departments as 
Governor. And I have found that the only way you can be successful is 
to work with organized labor on a consensus basis and work things out. 
Without working things out, it will not be a success. I have brought 
this to the attention of the administration several times. I am 
confident that with the process that is in the Gramm-Miller amendment, 
the process will be open and fair.
  I have talked to Kay Coles James, Director of the Office of Personnel 
Management; I have talked to Mark Everson, Deputy Director for 
Management at OMB, and many other people. They understand that they 
have to build trust with the unions if they expect to have a successful 
Department. If they don't work together and achieve a consensus, we are 
in big trouble.
  Finally, the Gramm-Miller substitute includes the House-passed 
language proposed by Representatives Connie Morella and Chris Shays--
with an additional provision that I have recommended. This language 
would, for the first time, limit the current authority of the President 
to exclude an agency or agency subdivision from participation in a 
collective bargaining unit.
  Under current law, the President may exclude participation in a 
collective bargaining unit upon determining that the entity has as a 
primary function intelligence, counterintelligence, investigative or 
national security work and that permitting the entity to have union 
organizations would be inconsistent with national security requirements 
and considerations.
  Under current law, the President may exclude participation in a 
collective bargaining unit upon determining that the entity has a 
primary function of intelligence, counterintelligence, investigative or 
national security work, and that permitting the entity to have union 
organization would be inconsistent with national security requirements 
and considerations.
  I want to make this clear to my colleagues.
  The Morella-Shays language would limit the President's current 
authority only with regard to the new department. It would prohibit the 
President from using the exclusionary authority unless the mission and 
responsibilities of a transferred agency materially change and a 
majority of the employees within such an agency have as their primary 
duty intelligence, counterintelligence, or investigative work directly 
related to terrorism.
  The language does provide, however, that the President could waive 
the above limitations on his authority if he determines in writing that 
their use would have a substantial adverse impact on the department's 
ability to protect homeland security.
  Senators Gramm and Miller have agreed to add language that I proposed 
requiring that, when the President executes his authority under the 
Morella-Shays language, he must notify Congress of the reasons for his 
determination at least 10 days prior to the issuance of his written 
order.
  What our unions are worried about is arbitrary and capricious action 
on the part of the President exempting members from membership in their 
unions.
  This language basically says that we, for the first time, in the 
Homeland Security Department, will limit that power of the President, 
and if he exercises it under Morella-Shays, it means his decisionmaking 
will be subject to a filing in Federal court as to whether he has 
abused his discretion in exercising that power.
  This is very important. If he decides to waive it and says, no, I 
don't want to do it by Morella-Shays, I want to go ahead and exercise 
my power, that basically says the President has to put it in writing, 
and send it to Congress. The unions will see it, the majority will see 
it, the minority will see it, the media will see it, and public 
personnel experts will see it. I have tried to convince some of my 
colleagues that this process is open to public scrutiny.
  I have to say to my colleagues, how can you ask this President of the 
United States--at a time when we have a national security crisis--to 
give up the same authority held by all other Presidents since 1962--
when we create this new Department of Homeland Security?
  The fact that this administration has agreed to set up criteria and 
limit the President's authority to certain specific reasons for 
exercising it--to then say to the President, by the way, you can't do 
that now. To say, 'you have to send it to Congress 10 days in advance' 
is more than enough limitation on this historic executive authority. I 
say to my friends on the other side of the aisle, I say to my friends 
in the unions, that, first of all, I don't believe this President is 
anti-labor or trying to short-change or treat our employees improperly.
  Second of all, even if he thought of doing something like that, or 
somebody recommended it, he would have to explain the rationale in 
writing, and allow it to be held up to public scrutiny 10 days prior to 
his order taking effect.
  Mr. President, I have been one of the leaders on civil service reform 
during the last two sessions of Congress. I believe I have probably 
dedicated more time than any Senator to addressing the Federal 
Government's personnel interests. I have tried to raise the profile of 
this issue and then work in good faith with all interested parties to 
develop solutions. Based on my work, I want my colleagues to know I 
believe the personnel provisions in the Gramm-Miller substitute can go 
a long way towards putting personnel management in the executive branch 
back on track.
  I just hope that somehow in the next couple of days we can work 
something out on both sides of the aisle so that people feel 
comfortable that we can protect the rights of organized labor and at 
the same time give the President of the United States the authority and 
the flexibilities he needs to get the job done.
  I hope that after this debate is over, the well is not so poisoned 
that when the administration and the unions begin to sit down and talk 
with each other, they can work together to arrive at a consensus so 
that this reorganization can be successful and fruitful, and we can 
achieve what we all want to achieve to secure our homeland.
  Thank you, Mr. President. I yield the floor.
  Mr. REID. Mr. President, I say to my friend from Ohio, who I think is 
such a good legislator--
  Mr. VOINOVICH. Could the Senator speak a little louder? I am wearing 
a hearing aid.
  Mr. REID. I was saying nice things about the Senator. I will be happy 
to speak louder.
  I was telling my friend from Ohio, who is such a good legislator, I 
would like to at a subsequent time today make a unanimous consent 
request that we vote on cloture on Gramm-Miller tomorrow. It is now set 
for Friday.

[[Page S9216]]

We want to move this legislation along. I think that is what we need to 
do.
  The Senator doesn't need to respond to that at all. I just wanted to 
let him know that we hope to work something out in the next couple of 
days. I hope we can work something out tomorrow. We want to move this 
legislation along.
  I have to say this: Having been on this bill for the fourth week, I 
am concerned that maybe people down on Pennsylvania Avenue don't want 
this bill. We have done everything we can to move this legislation. It 
doesn't appear that people on the other side of the aisle want it 
moved.
  For example, Senator Byrd's amendment was pending for several days. 
At any time, Senator Byrd's amendment was subject to a motion to table. 
Everyone knew there were enough votes to table that amendment. But for 
days, the minority chose not to do that.

  So I hope that I am wrong. I hope that I am wrong. I hope that there 
are as many on your side of the aisle as on our side of aisle who want 
this legislation to pass. But I have the feeling now, I say to my 
friend from Ohio, is that the minority does not want to move the 
homeland security bill.
  We will see in the next----
  Mr. VOINOVICH. Mr. President, I say to the Senator, I beg to differ 
with the Senator from Nevada. We do want to move forward with this 
homeland security bill. We do want it to pass. We know how necessary it 
is for the President to have this new Department, with the flexibility 
he needs to merge more than 20 agencies.
  From my perspective, I cannot figure out why the Majority has been 
filing cloture motions on some of these amendments, when I think they 
could make a motion to table instead. I am still trying to figure that 
out. I may need to get the Parliamentarian to explain what this is all 
about.
  But I can assure you, that after the time I have spent on this issue 
with many of my colleagues, including many on the other side of the 
aisle, we want this to move forward.
  We would like to have a vote up or down on the President's amended 
proposal, which is contained in the Gramm-Miller amendment. We would 
like to have a vote on the recommendations from Senators Nelson, 
Breaux, and Chafee, and see where the Senate stands on that amendment.
  We have to move this along. We cannot go home, I think, without 
getting this done. I know this has gotten to be pretty partisan. But I 
honestly believe that if we can sit down and start talking about some 
of this a little bit more, we could work something out and move ahead.
  I assure the distinguished Senator from Nevada that we are not 
delaying this. We want to move forward. And I will certainly do 
anything I can to help cooperate in this regard.
  But we want a vote on the Gramm-Miller amendment. We also want a vote 
on the amendment of Senators Nelson and Chafee and Breaux.
  Mr. REID. I would simply say--the majority leader is here, and I 
don't want to take a lot of time--the majority of the Senators over 
here want a bill. I am confident a majority of the Senators want a 
bill. This is the fourth week we have tried to do it.
  We are trying very hard. We should be able to do it. It appears to me 
that some people cannot take yes for an answer. We are willing to give 
a vote on the amendment offered by the Senator from Texas, but he says 
he does not want a vote unless he can have the first vote. It is just a 
lot of what appears to me, and I am sure to the people in Nevada and 
the public, to be a lot of silliness.
  We want to move forward with this legislation. As the Senator from 
Ohio has said, you want it passed. We want it passed. Hopefully, we can 
do something. But it appears we are not getting impetus from the 
leadership on your side of the aisle and the White House to get this 
done.
  I am sorry to have taken the leader's time.
  The PRESIDING OFFICER (Mr. Miller). The majority leader.
  Mr. DASCHLE. Mr. President, parliamentary inquiry. Who controls the 
floor?
  The PRESIDING OFFICER. Nobody controls the floor at this time.
  The majority leader is recognized.
  Mr. DASCHLE. Mr. President, I do not want to interrupt the statement 
of the Senator from Ohio.
  Mr. VOINOVICH. Mr. President, I don't see anybody else seeking 
recognition on my side of the aisle. I yield the floor.
  Mr. DASCHLE. Mr. President, I came to the floor for a couple of 
reasons. One was to reiterate what I think I heard the assistant 
Democratic leader say with regard to our desire to have a vote. As we 
have indicated publicly and privately, we are prepared for an up-or-
down vote. We want a vote on the Nelson-Breaux amendment. And once that 
vote is taken, we are more than willing to vote on the Gramm amendment. 
So there should be no question about that.
  I think I heard the Senator from Nevada say that there are some who 
cannot take yes for an answer. We are prepared to offer that vote any 
time. I would hope that our colleagues on the other side of the aisle 
would take our offer in the manner in which it was intended. We hope to 
have a vote up or down on that particular amendment.

                          ____________________