[Congressional Record Volume 148, Number 125 (Monday, September 30, 2002)]
[Senate]
[Pages S9566-S9572]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     HOMELAND SECURITY ACT OF 2002

  The PRESIDING OFFICER. Under the previous order, the hour of 2 p.m. 
having arrived, the Senate will now resume consideration of H.R. 5005, 
which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (H.R. 5005) to establish the Department of Homeland 
     Security, and for other purposes.

  Pending:

       Lieberman amendment No. 4471, in the nature of a 
     substitute.
       Gramm/Miller amendment No. 4738 (to amendment No. 4471), of 
     a perfecting nature, to prevent terrorist attacks within the 
     United States.
       Nelson (NE) amendment No. 4740 (to amendment No. 4738), to 
     modify certain personnel provisions.

  The PRESIDING OFFICER. The Senator from Nevada is recognized.
  Mr. REID. Madam President, I have spoken with Senator Thompson and he 
has indicated that he has a statement to make. There may be others on 
his side wishing to make statements on the bill. He indicated that 
there will be no unanimous consent requests related to this bill.
  The leaders have announced there will be no votes today. My friend 
from Tennessee, I am sure, is aware of that. I look forward to his 
statement and whoever else wants to speak on this most important 
legislation.
  The PRESIDING OFFICER. The Senator from Tennessee is recognized.
  Mr. THOMPSON. Madam President, I thank my friend from Nevada. I 
concur in his analysis. There will be no unanimous consent request or 
additional amendments brought up, or anything of that nature. I also 
agree with him that we should have our colleagues down here discussing 
this bill, if they desire to do so. I encourage anyone who may be 
listening, if they have comments on this bill, come to the floor. There 
will be plenty of time this afternoon for us to continue to engage in 
this discussion. It is a very important discussion.
  I think with regard to the several points of disagreement that we 
have, we should keep in mind the points of agreement we do have. I 
think, for example, all concerned agree that we need to bring many of 
these agencies that have to do with homeland security under one 
umbrella and that we must do it in a much better and more efficient way 
than we have carried out the operations of Government in many other 
respects. So let's build on that.
  I hope we can build on that and address the points of disagreement 
and see if we cannot come together. I am still hopeful that in the 
waning days in which we have to address this issue, we will be able to 
come together and agree on not only the principle I just enunciated 
with regard to the merger, but also with regard to issues concerning 
the President's proper authority and appropriate flexibility that is 
going to be needed to manage this gargantuan enterprise we are setting 
out on. It is really a major endeavor. Nothing has been done like this 
in several decades in this country, and we are going to need all hands 
on deck, all the tools, all the resources, and all of the attention 
that we can bring to bear on this problem in order to make this country 
safer.

  I think most of us realize now that we will probably never again be 
able to believe we are totally safe and that we can cover every border 
and every bolt and every automobile and every airplane, all to the 
extent that we will have a failsafe situation and that we will not need 
to constantly keep our guard up.
  There is a lot we can do. A lot has already been done. The President 
has taken charge and Tom Ridge in the Office of Homeland Security has 
taken charge. They have issued Executive orders that have addressed 
many of the burning issues that we face. I think our border situation 
is already better. Our transportation situation is better. But there is 
an awful lot to be done before we get to the point where we can say 
that we have done all that we can do.
  It is a very difficult proposition. I said last week that one of the 
things that impresses me most about this body, about the Government in 
general, is how difficult it is to make any really substantive change 
to anything. If there is any difficulty connected with it at all, if it 
comes to spending money, or something like that, we can usually come 
together because it benefits those of us who are spending the money, 
benefits our constituents, and we get some short-term benefit from that 
all the way around. We sometimes pay long-term consequences for it, but 
spending money seems to be an easy thing to do.
  Here, we are actually stepping on some people's toes and we are 
acknowledging some dysfunctional aspects of our Government and we are 
saying, let's change that. But there are a lot of vested interests out 
there who don't want to change. They want the status quo. In the 
abstract, they want the same end result we do--we want a better 
system--but they don't want to change things in order to achieve a 
better system.
  We have been looking, listening, watching, and absorbing for many 
years in this Congress and in this Senate the various negative aspects 
of many of the agencies of our Government and how they are not working, 
how they are not doing what they are supposed to be doing, how they are 
rife with waste, fraud, and abuse, and billions of dollars are being 
sent out for things--like people who are deceased, for example. We find 
that we cannot incorporate high-tech information systems that have been 
incorporated in the private sector for years and years, to good effect. 
We cannot seem to bring that into the Government. The IRS has wasted 
billions and billions of dollars trying to get their computers to talk 
to each other. They are making real progress now, but for a long time 
they did not. And there are human resources problems, human capital 
problems.
  We are losing people we ought to be keeping in Government, and too 
often keeping the people we ought to be losing because of old rules and 
regulations that were set up decades ago. We have seen all of this 
happen, all of this evolve as Government got bigger and bigger and more 
complex, with levels and upper levels--every Deputy Assistant Secretary 
has an assistant to the Deputy Assistant Secretary, and they have two, 
three, and four, and it keeps growing. It makes us less efficient and 
less responsive to the people we are supposed to be serving.
  Now, we understand it is not just money and inefficiency and lack of 
service we have to be concerned about. We have to be concerned about 
our very safety--the No. 1 job of Government, self-protection.
  Yet there are those who want to incorporate that system, this 
bureaucratic mess that has evolved into the new Homeland Security 
Department because they do not want to make any changes.
  Unfortunately, a part of what has to be addressed. Governmentwide is 
our civil service system. No one wants to deal with that because it is 
politically difficult, politically volatile, and you are going to be 
stepping on some people's toes. Yet there is unanimity

[[Page S9567]]

among Democratic and Republican experts who have looked at this problem 
and have experienced this problem.
  In the homeland security bill, we are trying to solve a 
Governmentwide problem. It is much too big. It is much too politically 
difficult. There are too many entrenched interests to successfully 
address that situation. We are trying to say, with regard to homeland 
security, with the issue most important to our country: Let's have a 
little flexibility in these civil service rules that we have not had in 
times past.
  When President Carter asked for civil service reforms in the spring 
of 1978, he said the system ``had become a bureaucratic maze which 
neglects merit, tolerates poor performance, permits abuse of legitimate 
employee rights, and mires every personnel action in redtape, delay, 
and confusion.''
  That was President Carter. Accordingly, Congress delivered the 
requested reforms in the Civil Service Reform Act of 1978. But a lot 
has happened since 1978 to prove that we still have a long ways to go.
  The Brookings Institution report of 2002 quoted earlier now says:

       The civil service personnel system underwhelms at virtually 
     every task it is asked to do. It is slow at hiring, 
     interminable at firing, permissive at promoting, useless at 
     disciplining, and penurious at rewarding.

  That is the Brookings Institution's analysis of our civil service 
system.
  This is not news to anybody. President Carter knew about it, spoke on 
it, and the Brookings Institution and others have spoken about it. We 
heard testimony in the Governmental Affairs Committee over the years 
about this issue. Something has to be done about it, and everybody 
wrings their hands and acknowledges it is not right that it takes 5 or 
6 months to hire somebody. It is not right that it takes 18 months to 
fire a poor performer. But that is the way it is, and that is the way 
we have been doing business. We rock along tolerating that kind of a 
system because it is only Government and we really do not expect much 
out of Government anyway, do we?
  Now we are in a different world, and we understand that what is at 
stake is not just aggravation or waiting in a longer line or putting 
some civil service employees out who are trying to get a job or trying 
to get promotion inside a system that only let's them move lockstep or 
waste a few billion dollars--it is not just that anymore. It is our 
very safety and survival as a nation because, if we adopt this kind of 
system into the Department of Homeland Security, we will get the same 
results as other agencies.
  We will see not only waste, fraud, abuse, and mismanagement, overlap 
and duplication, but we will see the border not protected the way it 
should be, airline safety not being what it should be, cargoes will not 
be examined the way they should be, the information technology we need 
to tie all this together so we can keep up with the bad guys will not 
be what it should be because we have seen it has not worked in 
any other aspect of Government.

  What makes us think that just by creating this new Department under 
the same old rules it will work any better in this new Department of 
Government? If anything, there will be new problems that will be 
created from this new Department of Government because we are talking 
about bringing together over 170,000 Federal employees. It will require 
the coordination of 17 different unions, 77 existing collective 
bargaining agreements, 7 different payroll systems, 80 different 
personnel management systems--80--an overwhelming task by any stretch 
of the imagination.
  Again, with this more complex, more difficult, and more-important-
than-ever task that we have on our plate now, do we really want to 
bring the old way of doing business into our Government that has 
produced these bad results? The answer is no.
  We have to do business a little differently. We have to give the 
President authority that other Presidents have had--not take away his 
authority as the opposition to this bill would do, or diminish his 
authority, or set up new requirements for the President to prove. It 
means that we have to give the people who are going to be running this 
new Department some flexibility with regard to hiring, firing, 
promoting, rewarding, holding employees accountable--all those issues 
we should have done Governmentwide years ago and we do not have the 
political will to do.
  At long last, with regard to the Department of Homeland Security, at 
least we ought to acknowledge that we have to look at these issues 
differently. We have done so with regard to several Departments. That 
is the irony. When the Transportation Security Administration came to 
us and said, We need a little additional flexibility in hiring, firing, 
promoting, rewarding, and disciplining, we gave it to them. When the 
GAO came to us and asked for the same flexibility, we gave it to them. 
When the IRS came to us and asked for the same flexibility, we gave it 
to them. When the FAA came to us and asked the same flexibility, we 
gave it to them. When the President comes today and asks for the same 
flexibility, we say no. At a time when it is needed the most and is 
being asked for by the person who needs it the most on behalf of his 
new Department, we say no. I think it defies logic.
  It is not as if we are taking a step back from merit system 
principles or that we want to engage in prohibited personnel practices 
and we are going to abrogate civil service for Federal employees. That 
is not it at all.
  The President has made it clear that the merit system principles that 
have been there for years will still be there. I am talking about 
principles such as veterans' preference; the requirement to recruit 
qualified individuals from all segments of society; select in advance 
employees on the basis of merit after fair and open competition. We 
keep that, of course. I am talking about treating employees and 
applicants fairly and equitably without regard to political 
affiliation, race, color, religion, national origin, sex, marital 
status, age, or handicapping conditions; we keep those principles.
  Provide equal pay for equal work and reward excellent performance--of 
course, we keep those principles; maintain the high standards of 
integrity, conduct, concern, public interest, we keep that; manage the 
employees efficiently and effectively, we keep that. The requirement 
that we retain and separate employees on the basis of their performance 
and their performance alone, we keep that. Educate and train employees 
when it will result in individual performance, we keep that; protect 
employees from improper political influence, we keep that; protect 
employees against reprisal for lawful disclosure of information in 
whistleblower situations, that is, protect people who report things 
such as illegal or wasteful activities, we most certainly keep that. We 
want that. We value that as much as anyone.

  All of those merit system principles we retain. We do nothing with 
regard to keeping those. Those are principles on which we all agree, 
and those who imply we are somehow, in the name of national security, 
eviscerating the rights of employees, is simply not true.
  We can maintain the rights of employees but we are not wedded to 50-
year-old operating principles. We can make some changes that make some 
sense in the light of current circumstances.
  Well, they ask, what about prohibited personnel practices? In title V 
of the United States Code, as we all know, there are several prohibited 
personnel practices in which the managers of these agencies and the 
heads of these Departments cannot engage. They say employees who have 
the authority to take, direct others to take or approve personnel 
actions shall not discriminate on the basis of race, color, religion, 
national origin, age, handicap condition, marital status, and political 
affiliation. We retain that prohibition, for sure. May not solicit or 
consider employment recommendations based on factors other than 
personal knowledge or jobs or related activities or characteristics, we 
keep that; may not coerce an employee's political activity, we keep 
that; shall not deceive or willfully obstruct a person's right to 
compete for employment; shall not influence any person to withdraw from 
competition for any position or improve or injure the employment 
prospects of any other person; shall not give unauthorized preference 
or advantage to any person or improve or injure the employment 
prospects of any particular employee or applicant; shall not engage in 
nepotism; shall not retaliate against a whistleblower; shall

[[Page S9568]]

not retaliate against employees or applicants who exercise their appeal 
rights; shall not discriminate based on personal conduct which is not 
adverse to on-the-job performance; shall not violate any law, rule, or 
regulation which implements or directly concerns the merit principles; 
shall not knowingly take or fail to take a personnel action if that 
action or failure to act would violate a statutory or regulatory 
veterans preference requirement.
  All of those prohibitions stay. We retain every one of them. They are 
principles on which we all agree, and they are meaningful. They are 
protections that employees should have. They are protections we insist 
these employees retain.
  Again, does that mean one cannot make any changes from a system that 
was created 50 years ago, in light of current circumstances? It does 
not. When you find somebody not doing their job, does that mean it 
should take years to do anything about it? Does that mean it should 
take months in order to hire someone because of rigorous steps and 
certain pools from which you have to draw and all of that kind of 
foolishness at a time when we are really in need of people with 
technology capability that we have not necessarily needed in times 
past? Of course not.

  Does it mean we should not have a system whereby good performers can 
jump ahead and get paid more and not have to go in a one-step process 
all the way up where people who are doing their job, people who are 
doing an excellent job, people who are doing a mediocre job, and people 
who are doing a terrible job are all lockstep, just same old thing?
  That system was created 50 years ago, with 15 different pay grades, 
10 steps within each pay grade, when people would go in as a young 
person and lockstep their way all the way up through the process and 
retire after 20 years. That is not the world we live in anymore. Young 
people can do a lot better than that. We need to be able to pay them 
more. We need to be able to reward them more. We need for them to be 
able to jump grades, for example. Under less than very exceptional 
circumstances, it ought to be the rule for extraordinary performance.
  By the same token, there needs to be accountability. These are not 
inconsistent with the merit principles I have enunciated. There is just 
a little bit of common sense. It does not mean we have to have 
collective bargaining agreements that go on for months and sometimes 
years over such issues as whether or not the annual picnic was 
rightfully called off.
  There is a case at an Army base in St. Louis which lasted 6 years 
over that momentous issue.
  The administrative process is rife with cases such as disputes over 
whether or not the smoking area should be lit. Sometimes it takes years 
in order to resolve issues that way. At a time of war, can't we bring a 
little common sense with regard to the Department of Homeland Security 
when there are such high stakes? Surely, we can. That is what the 
issues before us today on this homeland security have to do with. They 
are in regard to maintaining a rigorous status quo regime or giving the 
people in this new Department--we will have this Department for the 
rest of our lives and probably for generations to come. There will be 
Democrat Presidents and Republican Presidents. There will be Democrat 
and Republican Secretaries of the Department of Homeland Security. This 
is not a partisan Democratic or Republican issue; it is a commonsense 
issue.
  Doesn't the new Secretary need to be able to break through some of 
these old rules and procedures that have gotten us down into waste, 
fraud, abuse, inefficiency, overlap, duplication, and inability to 
function and have at least a shot at managing people under the 21st 
century rules in which we live, instead of rules of another time and 
another era? I think so. That is what this is all about. That is all we 
are asking.
  I mentioned the various aspects with which the manager of this new 
Department--whoever that unfortunate soul turns out to be--will need 
some tools with which to manage. A good employee will welcome that with 
open arms. In fact, I think all of this would be welcome by employees, 
the overwhelming majority of whom are doing their job on a day-to-day 
basis. They are the unsung heroes throughout our Government. If those 
folks are offered an opportunity to say, look, we are going to make it 
easier for you to get hired, you are not going to have to be flailing 
around for 5 months and going through all these various steps, we are 
going to try to pay you more, once you get in and you do a good job, we 
are going to make it so you are rewarded commensurate with that, if you 
do not like what is happening and you file an appeal, or your union 
does on behalf of you, you are going to have, let's say, two steps 
instead of four in the appellate process, I think most employees would 
overwhelmingly embrace that tradeoff.
  Ninety-nine percent of the employees are not afraid of bringing a 
little common sense to the appeals process or the ability to respond to 
poor performance. If one looks at surveys, they will quickly see the 
overwhelming number of good Government employees realize there are some 
poor performers, and nothing can be done with them. They have to be 
transferred from Department to Department. The political appointees are 
in there for a short period of time. They are not going to spend all of 
their time bogged down in administrative hearings and worried about 
trying to get rid of somebody who has been there--you know the old 
saying, we will be there when you come and we will be there when you 
go, and it is true. They are and they will be there. They transfer them 
around and these other employees see that. They are making the same pay 
sometimes that the good employees are making, and that is not right.
  We do not need to put up with a situation such as that in our 
Government.
  (Disturbance in the galleries.)
  The PRESIDING OFFICER. The Sergeant at Arms will restore order to the 
Senate proceedings.
  The Senator will continue.
  Mr. THOMPSON. Madam President, chapter 43 goes beyond the intent of 
merit principles which provides employees who cannot or will not 
improve their performance to meet required standards should be 
separated. As a result, managers must give employees multiple 
opportunities to demonstrate their ability to perform the essential 
aspects of their position at an acceptable level. Such a requirement 
undermines the managers' willingness and ability to discipline poor 
performance and results in poor-performing employees remaining on the 
job for many months and sometimes years.
  Section 4302(b)6 authorizes agencies to remove employees whose 
performance is unacceptable, but only after giving that employee an 
opportunity to improve performance. It defines unacceptable performance 
as failure in any single element of an employee's standards. Another 
section requires any such opportunity to improve must be provided 
within one year preceding the removal of the employee.
  The combined impact of these provisions is poor performers are 
entitled to fail at each different element of their performance once 
each year without being subject to removal. If they are deficient in 
more than one, they have a year to see if they can improve on that, and 
if they prove to be deficient on another, they have another year on 
that. So the worse performing you are, the more time you have before 
anything can be done. What manager is going to spend his time going 
through that?
  An OPM study conducted in the last administration estimated 3.7 
percent of Federal civilian employees were poor performers. When 
applied to the total Federal workforce, that percentage works out to be 
64,340 employees.
  Last year, 434 individuals were removed for poor performance, so only 
.67 percent remained removed from service last year. In other words, of 
1,000 Federal employees who did not do their job, 7 of them were let 
go. Let's hope that of that 1,000, they are not checking the bags or 
checking the cargos or checking the borders when you or I are there and 
our safety and our loved ones' safety is at stake. Perhaps we can 
afford that in some departments, but not in the Department of Homeland 
Security. That is all we are talking about.
  The overwhelming number of good Federal employees and Federal 
performers see this and know who they are and know they are probably 
going to be making the same thing, and there is nothing that can be 
done about it.

[[Page S9569]]

What does that do to morale? What does that do to workforce morale?
  In 1993, a police sergeant with the Department of the Treasury was 
fired for providing false statements during an investigation. This 
action was not finally sustained until 5 years later when it was 
finally decided by the Supreme Court of the United States. During the 
intervening 5 years, there was a hearing before the MSPB, the 
administrative judge, a decision by the MSPB, an appeal to the Federal 
court, and a discussion by the U.S. Supreme Court. This was all 
regarding a police sergeant who lied during the investigation.
  An employee of the Civil Service Administration removed for 
falsification of travel voucher claims contends the action was 
unjustified. Under chapter 707, that employee would be entitled to seek 
investigation and review by the Office of Special Counsel, an average 
of 4 months; hearing and decision by the regional Office of the Merit 
System Protection Board, average 4 months; review by the headquarters 
of the Merit Systems Protection Board, 4 months; review by the Equal 
Opportunity Commission, 36 months estimated; and review at all 3 levels 
of the Federal court system--district court, appeals court and Supreme 
Court--6 months to several years.
  It is not that it would be a good idea to deprive people of their 
administrative rights. It is just a question of how many levels and how 
many avenues and how many claims and how long should all this take with 
regard to the Department of Homeland Security.
  Are we doing the best we can do? Clearly, we are not. It is showing 
up Governmentwide. It has to do with much more than just the rather 
narrow issues we have been talking about in terms of the homeland 
security. In June of last year, before September 11, we put out a 
document called Government at the Brink. This was a document I put out 
as chairman of the Governmental Affairs Committee. It was subtitled 
Urgent Federal Government Management Problems Facing the Bush 
Administration. This was as the Bush administration was coming in. We 
were trying to inform the new administration of the situation they were 
going to be confronted with, as other presidents have been informed. We 
tried to summarize the problems the Federal Government was having. This 
was not an attempt just to bash the Federal Government. It was an 
attempt to try to make it work better.
  We would have hearing after hearing after hearing. We would bring the 
GAO in. They would give us every year the high-risk list of agencies 
that were most subject to waste, fraud, abuse and mismanagement, 
overlap and duplication. The same agencies every year. No one ever got 
off of it. New ones kept coming on to it. We passed the RESULTS Act, 
which said every year: Now, you have not done very well at all. Some of 
you have done awful. You will have to start showing your results. We 
will have to start measuring your results.
  We have spent years now and we are still in the middle of trying to 
make that work, and the reports we are getting in many cases from the 
RESULTS Act show they were producing the right kind of results, but 
they are incomprehensible themselves. So we are having trouble getting 
through some of the reports in order to decide whether we are getting 
any results.
  Is Congress just laying on another requirement that will be 
unfulfilled? It is a very discouraging, long-term problem that has been 
developing for many years in our Government. It is getting worse and 
not better. My own view is that until we attach the appropriations 
process to these problem areas, we will probably never make any 
progress.

  In other words, if these agencies keep coming up with bad 
performances, not only should people be held accountable, the agencies 
should be held accountable, and it should be reflected in their funding 
for the next year. How can you justify continuing to fund failure year 
after year after year? That would not happen in any other aspect of 
American society except the Government. Yet what happens if they get 
bad enough? Usually, we give them more money.
  That is the situation. That is the backdrop. That is what we tried to 
summarize in this little booklet we put out.
  We mentioned some of the examples that the new administration was 
going to have to deal with in term of Government management or 
mismanagement.
  We mentioned the big dig, Boston Central Artery, the most expensive 
Federal infrastructure project in the Nation's history. Its cost 
continues to rise and is now estimated at $13.6 billion, an almost 525-
percent increase from the original $2.6 billion in cost.
  We mentioned abusing the trust of the American Indians. The 
Department of the Interior does not know what happened to more than $3 
billion it holds in trust for American Indians. A judge overseeing this 
case called it fiscal and governmental irresponsibility in its purest 
form.
  We mentioned the Department of Defense financial management. There is 
widespread agreement that the Department of Defense finances are a 
shambles. I hope they are better than when this report was written. It 
wastes billions of dollars each year, and it cannot account for much of 
what it spends.
  We mentioned NASA, NASA mismanagement; the fact that it causes 
mission failures. In spectacular example after example, NASA lost 
billions because of mismanagement at some of its biggest programs. The 
cause of the Mars Polar Lander failure, for example, was that one team 
used English measurements--feet, inches, pounds--to design and program 
the vehicle while another used metric measurements.
  We mentioned Medicare waste, fraud, and abuse. Medicare wastes almost 
$12 billion every year on improper payments. It misspent that $12 
billion last year from the fee-for-service part of Medicare alone, 
which was about 7 percent of the total fee-for-service budget. The 
amounts wasted on improper Medicare payments would go a long way toward 
funding a prescription drug benefit or other program enhancement.
  We mentioned security violations at the Department of Energy. The 
Department of Energy does not adequately safeguard America's nuclear 
secrets. In just one case, a party was dead for 11 months before 
Departmental officials noticed that he still had four secret documents 
signed out.
  We talked about the IRS fiscal mismanagement. The IRS manages its 
finances worse than most Americans. The agency does not even know how 
much it collects in Social Security and Medicare taxes. GAO found 
significant delays, sometimes up to 12 years, in recording payments 
made by taxpayers.
  We mentioned the Veterans Affairs and how they put patients' health 
at risk. The Department of Veterans Affairs IG found that the hospital 
food services shares the loading dock with the environmental management 
services hazardous waste containers. Dirty environmental management 
services and red biohazard carts were located next to the area where 
food is transported to the kitchen.

  We mentioned the student financial aid program bilking taxpayers in 
that program. Federal student aid programs are rife with fraud and 
abuse. A cottage industry of criminals advises people on how to cheat 
to get Federal Government loans and grants. In one case, scam artists 
passed off senior citizens taking crafts classes as college students 
who qualified for Federal Pell grants.
  Then we mentioned unemployment insurance fraud. A Las Vegas, NV, man 
illegally collected at least $230,000 in fraudulent unemployment 
insurance benefits from four different States between September of 1996 
and November of 1999. He set up 13 fake companies and submitted bogus 
claims based on falsely reported wages for 36 nonexistent claimants 
using names and Social Security numbers of dead people, then collected 
claims by mail from California, Massachusetts, Texas, and Nevada.
  These are just 10 examples of things we pointed out last year that 
were going on in our Government. For the most part, from the 
Government's standpoint, not counting the people who are out there 
always willing to take advantage of the Government, stealing from the 
Government, but for the most part this was not deliberate activity on 
behalf of people who work for the Government. These were just things 
that we let happen.
  A lot of it had to do with our lack of managing these Departments, 
the turnover that we had, the inability to keep

[[Page S9570]]

good people in developing these information technology programs. That 
is part of the IRS problem. Who wants to spend their time doing that, 
at that kind of pay? So we gave them flexibility. They are using it, 
and they are making some progress now. But this is the tip of the 
iceberg, and nobody pays any attention to it. We just kind of shake our 
heads, there is a newspaper story that comes out, and we go on and 
waste billions of dollars every year in the most egregious 
circumstances.
  Again, I ask: Now we have been attacked. We have lost almost 3,000 
people in one attack. We are going to bring some of these agencies 
together. If we just bring some of these agencies together, what have 
we accomplished except a bigger mess? We must do so, but we must do so 
with some ability to reward, punish, promote, demote, and get the right 
people in, raise some salaries, give some incentives, have some esprit 
de corps in some of these Departments, and be able to get rid of a poor 
performer with something less than 6 years in a case before the Supreme 
Court of the United States.
  I mentioned earlier we have already given this kind of ability to 
manage to several of our Departments: The FAA, GAO, GSA, IRS, several 
of our agencies. Yet when it comes to the most sensitive area of all, 
homeland security, we are not willing to give the new Secretary that 
kind of flexibility and that kind of ability.
  Someone might ask us: What about just giving the new Secretary for 
the Department of Homeland Security the kind of flexibility with regard 
to its employees that Members of Congress have? What about the same 
kind of flexibility to hire, fire, promote, set salaries that Members 
of Congress have?
  I can assure anyone listening that Members of Congress have much more 
flexibility than what is being proposed for this new Department. But 
more on point, in keeping within the executive branch of Government, 
what about the flexibilities we have given these other Departments?
  With regard to the IRS, there was a provision in there that basically 
said you must negotiate with the union, and if you do not, you must go 
to an impasses panel. That is what our friends, who would deny the 
Secretary this flexibility, suggest we should adopt for the Secretary. 
So one agency, and one agency alone, is all I can tell. We required 
them, when we gave them their flexibility--we required them to go 
through the administrative process that would wind up with some panel 
making the ultimate decision as to whether or not their actions were 
justified. We didn't do that with regard to the FAA, we didn't do it 
with regard to the GAO, we didn't do it with regard to the 
Transportation Security Agency. I submit that what we are about now, 
with 170,000 employees and 77 collective bargaining agreements and 80 
different personnel management systems--that flexibility is needed more 
with regard to homeland security than any of these other agencies.
  So we are not just comparing apples to oranges. We are comparing 
peanuts to elephants. We give these agencies this additional 
flexibility to manage with these relatively contained problems they 
have. But when we magnify the potential problems we know are going to 
come about with regard to the Department of Homeland Security, we don't 
want to give that to the new Secretary. I think we must if we want it 
to work, and if we want it to work differently, and we don't want to 
incorporate and adopt and inherit so many of the problems we have seen 
throughout Government--some of them relating to safety, some of them 
not--and expect we can keep doing the same old things the same old way 
after switching the boxes around and expect different results.
  What do all these billions of dollars of waste, inefficiency, lost 
items, and inability to balance the books that the Government cannot 
do--in small part or as a whole cannot balance its own books--translate 
over into when you are talking about safety issues? I hope we don't 
have to find out.
  We are suggesting the new Secretary have some of the same things 
these departments have--that we have already given flexibilities to 
have--in consultation with the Office of Personnel Management. This is 
a department headed by a Senate-confirmed person who is an expert in 
personnel rules, title V, and what the Government can and cannot do--
the prohibitions I just read earlier, the principles I read earlier 
that we must adhere to--in consultation with that person to come up 
with some rules.
  I should point out there is nothing in the Gramm-Miller substitute 
that mandates any changes. It is simply a law that allows those whose 
job it is and whose responsibility it is to make this a safer country 
to make those changes, and then come before Congress for appropriations 
and oversight--and all of the attention and sometimes aggravation and 
all of that--it will get as it justifies the changes it has made.
  The House of Representatives recognized this need and necessity in 
passing their homeland security bill. There were basically six areas 
where this bill gives the new Secretary some flexibility.
  There are many areas where no flexibility is sought at all. In fact, 
with regard to most of the personnel areas and flexibilities that are 
dealt with in title V, only a small percentage of them are being 
requested by the administration as being ones they need some 
flexibility in.
  Let us talk about what is not being suggested that there be any 
flexibility in by the administration.
  Chapter 21, general provisions; chapter 23, merit system principles; 
chapter 29, commission reports; chapter 41, authority for employment; 
chapter 33, examination and placement; chapter 34, part-time career 
employment opportunities; chapter 35, retention preference, restoration 
and reemployment; chapter 41, training; chapter 45, incentive awards; 
and chapter 47, personnel research programs and demonstration projects.
  Again, I am just about halfway through here. But these are areas in 
which the administration says OK, we are not asking for any changes or 
for the ability to change anything in these areas.
  Chapter 55, pay administration; chapter 57, travel, transportation 
and subsistence; chapter 59, allowances; chapter 61, hours of work; 
chapter 63, leave; chapter 72, antidiscrimination and right to petition 
Congress; chapter 73, suitability, security and conduct; chapter 79, 
services to employees; chapter 81, compensation for work injuries; 
chapter 83, retirement; chapter 84, Federal Employee Retirement System; 
chapter 85, unemployment compensation; chapter 87, life insurance; 
chapter 89, health insurance; chapter 90, long-term care insurance; and 
chapter 91, access to criminal history records for national security.

  There are close to 30 areas here in title V where no flexibility is 
being asked for at all.
  There are six areas where flexibility is being asked for: Chapter 43, 
performance appraisal; chapter 51, classification; chapter 53, pay 
rates; chapter 71, labor-management relations; chapter 75, adverse 
actions; and chapter 77, appeals.
  With regard to those six areas, the House says OK, we will give the 
new Secretary some flexibility in those areas.
  The Gramm-Miller amendment adopts those six areas.
  The ``compromise,'' so-called, before us--the Nelson-Chafee-Breaux 
amendment--would say we will give you four of those six areas. In other 
words, you have to add two more to the 30 or so you don't touch--labor-
management and appeals. The new Secretary can do nothing with regard to 
the entire area of labor-management or appeals.
  Unfortunately, labor-management and appeals has to do with the 
framework system by which you resolve disputes. If you control that 
process, you control everything else. Everything else has to go through 
it. So this is our difficulty.
  When the Breaux-Chafee-Nelson amendment says we may not give the 
Secretary the authority to make any changes to labor-management 
relations or to appeals, it is simply a step too far or a step not far 
enough.
  The President has said without this authority, the new Secretary 
would come in with his hands tied behind his back; he could not do all 
of the momentous things that are going to have to be done in terms of 
organizing and consolidating all these personnel systems without some 
flexibility in those areas as well.

[[Page S9571]]

  The Nelson-Chafee-Breaux amendment also says--we were talking about 
six--we will give you four. But with regard to those four, you have to 
enter into negotiating agreements with the union. If the union refuses 
to enter into a negotiated agreement with you, you have to go to the 
Federal Services Impasses Panel.
  I don't think it is as much a fact that we think the Federal Services 
Impasses Panel--whatever that is--is going to come up with terrible 
decisions; it is, again, do we really need to go through this kind of 
process with these kinds of decisions which other departments have the 
flexibility to go ahead and handle and take action on when we are 
dealing with homeland security, and we are dealing with the people who 
are going to be in charge of homeland security?

  One of these areas has to do with classifications and pay rates and 
systems. I would like to think we could pay people better. I would like 
to think we could promote people more easily. I would like to think we 
could retain good people.
  What if a union decides we are discriminating, we are taking this 
group of people and we want to give them more money, and we are taking 
another group of people and we don't want to give them any more money, 
and they represent all of them? So then we go through the Federal 
Services Impasses Panel. I cannot stand here and tell you how long it 
would take to go through this Federal Services Impasses Panel, but I 
can assure you it would be longer than it should.
  So basically 17 unions are representing about one-fourth of the 
workforce of these 170,000 employees. Only 20,000 of them are in a 
union. Forty thousand of them are represented by unions, but 20,000 of 
them are in a union. About 25 percent of the workforce becomes the tail 
that wags the dog.
  That is unnecessary. That is unwise. It, again, is placing restraints 
on this new Department that we have not placed on other Departments 
with much less serious mandates than we are giving this new Department.
  There was one case where the union objected to a number of issues 
relating to the deployment of the National Guard to help in Customs' 
antiterrorism responsibilities. The union even demanded to bargain over 
arming the National Guardsmen. And they objected to Customs employees 
having any responsibility for storing National Guard weapons needed to 
fight terrorism.
  In another example, the union has challenged Customs decisions to 
temporarily reassign inspectors to the northern border as the current 
union contract allows. Despite the continued terrorist threat after 9/
11, the union has insisted on a new and time-consuming process that 
would require Customs to canvas thousands of employees nationwide for 
volunteers.
  I guess most of us know by now that Customs has been sued because 
they put out a directive, pursuant to the President's direction, with 
regard to the color-coded warning system we have now: red, yellow, 
orange, whatever. So Customs was implementing that, and the labor union 
sued them because they said they should have negotiated that color 
system before it was put out.
  So these are the kinds of things about which we are talking. None of 
them, in and of themselves, are the end of the world, but in case after 
case we have become consumed with procedure and process.
  We can have due process. We can keep people from getting run over. I 
have spent most of my professional career trying to make sure that 
people didn't get run over. But you can do that without tying up the 
Government when it is trying to protect our borders. You can do it in 
less than a lifetime.
  The Congress cannot do it. We cannot sit here and decide the details 
of a massive personnel system, and especially all the different 
personnel systems we are having to bring together. That is an 
administration job. They got elected. Let them come with a system that 
has a chance of getting the job done and working out the detail.
  We will have oversight in this body. But I submit, we do not have the 
ability to micromanage a system such as that--which brings us to the 
President's national security authority. We have had a lot of 
discussion about that because a lot of people do not understand why, 
again, when we are creating a new Department that is going to be in 
charge of homeland security, we would give the President less authority 
with regard to this new Department not only than what other Presidents 
have had but than what other Departments have had and will have. So we 
will be taking the new Department, which needs the President's firm 
hand the most, and be providing him with less authority than other 
Departments have.

  I think that perhaps it would be good if we considered the history of 
the President's authority in this regard. As we have been talking about 
now for several days on the floor, the law basically is that if a 
primary purpose of a particular agency or subdivision has to do with 
certain categories of work, such as intelligence, counterintelligence, 
investigative or national security, then the President can set aside 
collective bargaining agreements because national security is at stake 
and we simply do not have the time to go through some of this rigmarole 
I have been describing on the floor with regard to this limited number 
of areas.
  The Nelson-Chafee-Breaux amendment would amend that and say that, No. 
1, the President has to prove this work has to do with terrorism and 
not the broader definition of national security or he has to determine 
that; and, No. 2, the President has to also determine that the new 
people who are coming into the Department with regard to whom he is 
exercising this authority have had their jobs changed. In other words, 
additional requirements are being made upon the President to make 
additional determinations which could be challenged in court.
  The President will have a presumption in his favor, for sure, with 
regard to the courts, but it will be a rebuttal presumption and it will 
be a situation where the President's representative has to decide to 
what extent, in a litigation situation, he wants to lay out these 
sensitive matters.
  But any way you look at it, it is not the same authority that other 
Presidents have had. We are putting up additional hurdles for this 
President to overcome, for some reason. We are making additional 
requirements, additional determinations for this President to make, for 
some reason. We are not making it easier for him to exercise his 
national security authority because of September 11, we are making it 
more difficult.
  There was an Executive order that President Kennedy signed, and it 
contained an exception for agencies and offices engaged in national 
security. But the exception did not even need to be invoked by the 
President. It could be invoked by a head of an agency.
  Executive Order 109-88 said:

       This order shall not apply to the Federal Bureau of 
     Investigation, the Central Intelligence Agency, or any other 
     agency or other office, bureau, or entity within an agency 
     primarily performing intelligence, investigative, or security 
     functions if the head of the agency determines that the 
     provisions of this order cannot be applied in a manner 
     consistent with national security requirements and 
     considerations when he deems it necessary in the national 
     interest. And subject to such conditions as he may prescribe, 
     the head of any agency may suspend any provision of this 
     order with respect to any agency, installation, or activity 
     which is located outside the United States.

  President Kennedy's Executive order was based on the recommendations 
of a distinguished six-member task force chaired by then-Secretary of 
Labor Arthur Goldberg. It was known as the Goldberg Commission. The 
statement from the Goldberg Commission is the best rationale for the 
national security exception we have found. The felt need for such an 
exemption seems to have been so widely acknowledged that no extended 
argument was even necessary. The general point has been made by many 
others, however.
  For example, President Franklin D Roosevelt said:

       All government employees should realize that the process of 
     collective bargaining has its distinct and insurmountable 
     limitations when applied to public personnel management 
     because the obligation to serve the whole people is 
     paramount.

  President Kennedy, President Roosevelt. In 1969, President Nixon 
repealed the Kennedy order but recodified and expanded the rules of 
procedure for labor-management relations in

[[Page S9572]]

Federal service. That order also contained an exemption for agencies 
and offices doing national security work and allowed the head of the 
agency to invoke the exception. Not the President, but the head of an 
agency could do it.
  The current statute then was signed by President Carter. He concurred 
with the language the House and Senate presented to him. But his own 
bill which he sent to Congress earlier in 1978 also contained an 
exemption for the work of national security.
  This is a well-established need that all Presidents have seen fit to 
exercise; to the extent, evidently, that extended debate back then was 
hardly even necessary. I don't know that there has ever been extended 
debate on the authority the President should have with regard to 
setting aside collective bargaining agreements in situations pertaining 
to national security and these other categories until now.
  Ironically, while the opponents of the Gramm-Miller substitute and 
the President's preferred course of action want the status quo with 
regard to all other aspects of this bill except the organizational 
part, but the status quo with regard to the managerial part, they do 
not want the status quo when it comes to giving the President the 
authorities that Presidents have traditionally received.
  The President can't accept that. He has said so. I hope it is not 
presented to him like that because we know what the fate of this bill 
would be. That would not be good for the country. We all know that.
  I am hopeful that in these waning days we will be able to, with 
regard to these two issues, which opponents of Gramm-Miller say are not 
very significant but which the President says are extremely 
significant, which you would think would cause a basis for some 
compromise right there, but I would hope we would be able to address 
this issue of some flexibility that we have given other departments 
that we must give the new Secretary on the one hand and, secondly, 
maintaining the President's traditional position with regard to his 
national security responsibilities having to do with collective 
bargaining agreements.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Wyden). The Senator from Nevada.

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