[Congressional Record Volume 148, Number 126 (Tuesday, October 1, 2002)]
[Senate]
[Pages S9665-S9677]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


            EMERGENCY UNEMPLOYMENT COMPENSATION ACT OF 2002

  Mr. SARBANES. Madam President, I rise in very strong support of the 
legislation to extend unemployment insurance benefits, the Emergency 
Unemployment Compensation Act, which Senator Wellstone and others have 
introduced. I am very pleased to have joined in cosponsoring this 
legislation.
  I have a few points to make in the limited amount of time that has 
been allotted to me this morning. First of all, we have extended 
unemployment benefits in every previous recession. The concept behind 
extending benefits is that when the economy goes soft and people lose 
their jobs, in order to help support them, we extend unemployment 
benefits beyond the standard 26 weeks. Otherwise, benefits are limited 
to 26 weeks. Let me underscore we are talking about working people. One 
cannot draw unemployment insurance if one has not been working. So by 
definition, the people we are trying to help are people who were 
working and producing and helping to move our economy forward and, 
because of conditions beyond their control, find themselves out of a 
job. Therefore, they are out of income that is needed in order to 
support themselves and often their families.

  Traditionally, we give benefits for 26 weeks and then we figure that 
people will find a job and go back to work. But when the economy goes 
soft, then we have a very difficult problem on our hands, which is 
there are not any jobs to go back to.
  Most of the economic indicators now are trending downwards. We 
continue to face a serious economic problem, and the effort to extend 
the unemployment insurance benefits is a response to this pressing 
need. This need is felt by unemployed workers all across the country as 
they confront the problem of how will they take care of their families, 
and where will they find the income with which to make it from day to 
day.
  Unemployment insurance pays only a small percentage of what people 
were previously earning. When a person is receiving unemployment 
insurance benefits their income takes a real hit. In any event, these 
benefits provide unemployed workers some support so that they are not 
completely cast out without any means of sustenance.
  Unemployment insurance has been carefully devised to be a 
countercyclical measure against recession because it provides extra 
income at a time of economic downturn. Almost by definition this money 
will be spent since the formerly employed workers are receiving 
benefits that are far below what they were previously earning. Thus, 
these benefits will all go into the income stream. They will help to 
provide an impetus to the economy. Those who talk about how can we get 
the economy moving again, this is one way to do it.
  Furthermore, there is a trust fund that is designed to take care of 
paying these unemployment benefits. Payments have been made into the 
trust fund in good times, such as when we experienced low unemployment 
rates over the last 7 or 8 years, and as a result of this we have well 
over $20 billion in that Federal trust fund. That money is in the trust 
fund because it was paid for the purpose of paying unemployment 
benefits when we confronted an economic downturn.
  People ask: Where is the money going to come from? It is going to 
come from the trust fund. It ought to come from the trust fund. That is 
why the trust fund is there, and that is why the money has been paid 
into the trust fund--for the purpose of providing a safety net at the 
very time that we run up against the kind of economy we are witnessing 
today.
  So the rationale for extending these unemployment benefits is 
overwhelming. It is consistent with past precedents. We have done it in 
every previous recession. It conforms to the structure of the system in 
the sense that we have paid into a trust fund to pay this money out. It 
will meet the pressing needs of formerly employed workers now 
confronting the very real problem of how they are going to support 
their family now that they have lost their income, and it will provide 
a boost to the economy because this money will be paid to formerly 
employed workers who will spend this money back into the economy, 
helping to boost this economy.
  The PRESIDING OFFICER. The Senator has used 5 minutes.
  Mr. SARBANES. I urge my colleagues to support this legislation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Madam President, it is my understanding that I was 
allotted 5 minutes under the unanimous consent request.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. DURBIN. Madam President, we are discussing unemployment 
insurance. A few of these charts really tell the story. If we take a 
look at the economic record over the last year and a half, we see some 
rather dramatic things have occurred. When President Bush took office 
in January 2001, 648,000 Americans were listed as ``long-term 
unemployed.'' That is more than just a temporary loss of a job. These 
are people who have been unemployed for more than 26 weeks.
  By August of this year, that number had more than doubled to 1.4 
million Americans facing long-term unemployment. In fact, if we compare 
the record of the Bush administration on private sector jobs, it is a 
dramatic indication of the failure of our economic policy.
  This chart starts with President Eisenhower, goes through every 
single President, all the way to President George W. Bush. Without 
exception, every one of these Presidents saw an increase in private 
sector jobs during their administration. The largest increases came 
under President Johnson, then President Carter and President Clinton. 
There is only one President who has seen a decline in the number of 
private sector jobs in their administration, and that is the current 
President, George W. Bush.
  So fewer jobs are being created, and there is higher unemployment. 
Traditionally, the Senate has not wasted any time in reacting. Take a 
look at what happened in the second worst record of the last 50 years--
under President Bush's father--when they had a job increase of only 
four-tenths of 1 percent. When they faced high unemployment under 
President Bush's father, the Senate went to great lengths to pass 
extensions of unemployment benefits, realizing there were hundreds of 
thousands, perhaps millions, of Americans out of work. Look at how 
quickly Congress responded, not only once but five times, to increase 
and extend unemployment benefits.
  Then look at the votes in the Senate. There is not a single vote with 
fewer than 66 Senators supporting it. In some cases, as many as 94 
Senators supported it. So there has been strong bipartisan support.
  I cannot understand this, but why is this administration resisting 
the effort of providing unemployment compensation to Americans who have 
lost their jobs? The President's economic policy has failed. It has 
created an economy which is sluggish. Take a look at the stock market 
on a day-to-day basis and tell me there is any indication of hope on 
the horizon.
  This morning, I met with representatives of major businesses. I went 
around the table and asked: What do you think the future holds? And not 
a single one of them is optimistic beyond the range of a year or two 
from now. So more and more people will face unemployment.
  Why, then, should unemployment insurance become this political 
football? The Democratic side is insisting we extend unemployment 
insurance, to make certain that people have some more money to live on 
in the hopes that they can find another job or at least keep their 
families together during some of the most perilous times.
  In the State of Illinois, we announced an unemployment rate in the 
month of August that put us fifth in the Nation for the highest 
unemployment rate. We frankly have a situation now where across this 
country many people are losing their jobs and, frankly, have nowhere to 
turn. The August 2002 unemployment rate of 5.7 percent nationwide is 
more than 18 percent higher than it was the year before.

  So under the Bush administration, the value of people's savings has 
declined because of the stock market crashing. We have seen people's 
pension plans decimated and their plans for their actual activity 
changed because they have had to decide to go back to work.

[[Page S9666]]

  I heard a report recently where one investment counselor said: I 
never dreamed there would come a day when I had to call a retired 
person and say I am sorry, I have taken a look at your portfolio, and 
you are not going to make it. You have to go back to work. But this 
person said they had to do it. That is a reality. That is what is 
facing people.
  So there is a rush on for these jobs and for a lot of people who have 
lost their pension savings. Now, there is a situation where people who 
are unemployed have nowhere to turn. They have run out of unemployment 
insurance benefits.
  This morning, the minority whip, Senator Nickles from Oklahoma, said 
the Senate Republicans would certainly consider unemployment insurance 
extensions.
  The PRESIDING OFFICER. The Senator has used 5 minutes.
  Mr. DURBIN. Madam President, I believe Senator Kennedy was given 5 
minutes, and I ask unanimous consent that I be given that time pending 
his return.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. The point I am getting to is that this effort by Senator 
Kennedy, Senator Clinton, Senator Wellstone, myself, and Senator Smith 
of Oregon is a really tradition that we have seen over and over again 
in the Senate and the Congress. When we are in a recession, the best 
thing that can be done to spark economic activity is to give some 
buying power to people who are out of work. We have done that 
repeatedly, no questions asked.
  For some reason, the Bush administration, which has presided over 
this recession getting deeper, darker, and gloomier, does not want to 
do that. They do not want to provide the basic necessities of life for 
these people. I do not understand that. One would think the President 
would have stepped up as his father did three different times and say 
we are going to provide the resources for these people who, through no 
fault of their own, are out of work. Yet the Bush administration has 
not done it.

  The situation gets worse. The Bush economic record shows in private 
sector jobs, we have lost more than 2 million jobs. We had 111.7 
million private sector jobs when President George W. Bush took office. 
Today, we are down to 109.6 million. It is an indication of how serious 
it is. Unemployment has become a national phenomenon under this failed 
Bush economic record.
  I mentioned earlier the situation with people and their savings and 
investments. This chart is a graphic presentation of something we all 
know. Look at the impact of President Bush's policies on worker 
retirement savings. Take an average person. Assume, for example, they 
had $100,000 in their 401(k) retirement plan as of the date President 
George W. Bush took office and they had it invested in the Standard & 
Poors 500--considered a pretty good barometer of business success in 
America. They would have lost 30 percent of the value of their 
retirement. People who were tied into it have seen their retirement 
savings go down. Many have been forced to go back to work. The stock 
market losses, $4.5 trillion, are an indication of lost stock market 
wealth since President Bush took office. I caution people who are 
following this debate, this chart was prepared last week. The numbers 
are worse today. We know what is going on.
  We need to do something in this country. We focus on national 
security. We should. Shouldn't we spend time discussing economic 
security? Or some time addressing this dramatic loss of wealth and 
savings in America through no fault of the families who thought they 
were well invested in a strong economy? This economy has hit the skids 
under President Bush. His idea to hold a conference with close friends 
in Texas will not cut it. We need to do things to make a dramatic 
difference.
  Ask economists the thing to do to put life back in the economy, and 
they say: Put buying power back in the hands of people who are 
unemployed. They will spend the money. They have to, for the 
necessities of life. Spending it, with the multiplier in our economy, 
creates jobs as a result.
  This Senate, before it adjourns and goes home to campaign or relax or 
whatever individual Senators care to do, should face its 
responsibility. The responsibility faced earlier by President Bush's 
father should be faced by this President Bush as well, to extend the 
unemployment benefits.
  This bill we are supporting, the Emergency Unemployment Compensation 
Act of 2002, ensures that the millions of workers exhausting their 
regular unemployment benefits will have a safety net on which they can 
rely. It ensures that over 800,000 workers benefitting from temporary 
extended benefits at the end of the year will not be faced with the 
abrupt expiration of that benefit on December 28. It ensures that over 
863,000 workers who have already exhausted their temporary extended 
benefits and remain unemployed for over 39 weeks have a place to which 
to turn. It is basic. It is essential.
  For goodness' sake, don't we owe it to the people of America to talk 
about the issues that hit them at home? Hit them in their pocketbooks? 
It is enough to talk about the Middle East and Iraq 23 hours a day, but 
can we spend an hour a day on the economy? I don't think it is 
unreasonable. If the President would suspend his conversations relative 
to campaigns for 1 hour a week to address the economy, it is something 
the American people believe is long overdue.
  I hope my colleagues will support this extension of unemployment 
benefits.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SPECTER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Parliamentary inquiry: Are we on the homeland security 
bill?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. SPECTER. Madam President, I have sought recognition to urge my 
colleagues to work to resolve the outstanding differences on the labor-
management issues because I believe the two sides are very close. I 
submit further that it is of vital importance that the Congress proceed 
to enact legislation on homeland security and the Senate move ahead to 
iron out the remaining differences, go to conference with the House, 
and then present a bill to the President for signature. It is 
imperative that all of the intelligence agencies be brought under one 
umbrella in an effort to avoid a repetition of 9/11.
  My analysis shows me that had all of the dots been put together prior 
to 9/11, 9/11 might well have been avoided. I am not prepared to accept 
the Intelligence Committee's analysis that another terrorist attack 
will occur. I believe if we put all the dots together, we can prevent 
it.
  Had we had the Phoenix FBI report, together with the information from 
Kuala Lumpur about two of the hijackers known to the CIA, not told to 
the FBI or INS, had we had the National Security Agency warning on 
September 10 that something was going to happen the next day, had the 
warrant under the Foreign Intelligence Surveillance Act been pursued as 
to Mr. Zacarias Moussaoui, there would have been a blueprint. But the 
system broke down because there was not one overall umbrella.
  What we are faced with now, the differences in the two positions, 
involves the labor-management issues. Last Thursday, we had a 
discussion in the Senate where it was agreed that the provisions of the 
Nelson-Chafee-Breaux amendment did not supplant the provisions of title 
V which have a national security exemption but were in addition to the 
existing provisions of title V on collective bargaining. When you take 
a look at the language in the Nelson amendment, it is very close to the 
language of the existing law. The existing law refers to 
counterintelligence, investigative, or national security, and the 
Nelson amendment refers to counterintelligence or investigative work 
directly related to terrorism investigation.
  It may be that the language of Nelson would have to be modified 
slightly so that instead of providing for a ``majority'' of such 
employees, it would be a ``significant number'' of such employees.

[[Page S9667]]

  Then with respect to the issue of negotiability, the Gramm-Miller 
bill has six categories: Performance appraisal under chapter 43, 
classification under chapter 51, pay rates and systems under chapter 
53, labor-management relations under chapter 71, adverse actions under 
chapter 75, and appeals under chapter 77.
  The Nelson amendment would leave in four of those categories--
performance appraisal, classification, pay rates and systems, and 
adverse actions--and would subject their implementation to review by 
the Federal Services Impasses Panel, seven appointees, all appointed by 
the President.
  It seems to me we could borrow the language from chapter 71 under 
labor-management relations, under a national security waiver, and 
provide flexibility which the President is seeking in the event that 
there is a national security issue.
  I believe it is very important we resolve this matter so we can move 
ahead with enactment of a homeland security bill. As I said last 
Thursday and repeated yesterday, I have not taken a position in favor 
either of the provisions of the Nelson amendment or of the provisions 
which are in the Gramm amendment.
  But I believe we are so close together these differences can be 
reconciled.
  I wonder if I might have the attention of the manager of the bill, 
the Senator from Connecticut. Will the Senator from Connecticut respond 
to a question?
  I ask unanimous consent I may ask a question of the Senator from 
Connecticut without losing my right to the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. My question to the Senator from Connecticut is:
  When you take the language of title V, chapter 71, which specifies 
the President may issue an order excluding any agency or subdivision 
thereof from coverage under this chapter if the President determines 
(a) the agency or subdivision has as a primary function intelligence, 
counterintelligence, investigative or national security work; and, (b) 
the provisions of this chapter cannot be applied to that agency or 
subdivision in a manner consistent with national security requirements 
or considerations;
  And, add to that the language from the Nelson-Chafee-Breaux amendment 
which specifies that the President could not use his authority without 
showing that, (1) the mission and responsibilities of the agency or 
subdivision materially change; and, (2) a majority of such employees 
within such agency or subdivision have as their primary duty 
intelligence, counterintelligence or investigative work directly 
related to terrorism investigation.0
  My question is, isn't it true the provisions of existing law and the 
additions made by the Nelson amendment are very close?
  Mr. LIEBERMAN. Responding, Madam President, to the Senator from 
Pennsylvania, that is my understanding as well. The language with 
regard to the particular section cited by the Senator from Pennsylvania 
in the Nelson-Chafee-Breaux language is supplementary to what is in the 
statute, and essentially adds those two extra determinations the 
President makes to waive collective bargaining rights of Federal 
employees because of national security reasons, and the determination 
is totally that of the President.
  Mr. SPECTER. Madam President, I direct another question to the 
Senator from Connecticut; that is, it has been reported to me the White 
House may be willing to accept the language of Nelson on the clause if 
a ``majority'' of such employees was modified to ``significant number'' 
of such employees. I ask the Senator from Connecticut if he thinks we 
might be able to make that minor modification if that would in fact 
close the area of disagreement on this issue.
  Mr. LIEBERMAN. Madam President, responding to my friend from 
Pennsylvania, I think the question in the report of what the White 
House has really demonstrates how close we are to an agreement. I 
prefer the word ``majority;'' that is, to set some standard. Basically, 
this provision of Nelson-Chafee-Breaux gives some minimal due process 
protection for Federal workers in the future from a President who would 
arbitrarily apply this national security waiver to remove collective 
bargaining rights of Federal employees.
  One of the elements of due process is to say for the determination to 
be made, a ``majority'' of the employees of the agency or office 
department would have to be involved and, speaking generally, national 
security. A ``significant'' number seems a little lower. I think we can 
probably find a word. It is a little too low, it seems to me, between 
those two words to grant both some comfort level for Federal employees 
without diminishing the authority of the President.

  I say again these statements are some of the reasons the President 
will have to make his determination. But the President's determination, 
for all intents and purposes, is final. As we discussed last week, 
there is one reported case where an appeal was made of a determination 
by President Reagan. He just gave an order. He didn't make a 
determination. The circuit court even upheld that because the 
presumption in favor of the President when he invokes national security 
is so high.
  But I welcome this colloquy with the Senator from Pennsylvania. I 
think somewhere, if the concern of the White House on this particular 
section is about the word ``majority,'' we can find another word which 
I hope can satisfy all concerned and still provide that minimal due 
process for Federal employees.
  After this vote that is coming up, I hope we will continue to work. I 
fear cloture will not be invoked. I think the Senator from 
Pennsylvania, along with my colleague, the Senator from Tennessee, can 
play a critical role in getting us over this last obstacle which stands 
between us and adopting a bill we all say we agree on 95 percent of, 
except this major disagreement.
  Mr. SPECTER. Madam President, I thank the Senator from Connecticut 
for that answer. The purpose of the question and the colloquy is to 
demonstrate how close we are; that when the Senator from Connecticut 
says he prefers language of a ``majority'' of such employees to a 
``significant number'' of such employees, I can understand his 
preference. But what I especially liked about his answer was his 
determination which matches mine to find language which will find 
another word which will bridge the gap. When we talk about a 95 percent 
agreement, I think we are really much closer than that when you really 
strip down all the language.
  If I might have the attention of the Senator from Connecticut again 
for another question, moving now to the issue of so-called flexibility 
where the Nelson amendment is willing to give the flexibility which the 
President sought under four of the six chapters, subject only to 
reference to the Federal Services Impasses Panel in the event of 
disagreement over implementation--again, noting that all seven of those 
appointees are designated by the President--the thought I believe might 
bridge the gap would be if as to five of these areas--performance 
appraisal, chapter 43; classification, chapter 51; pay raise systems, 
chapter 53; adverse actions, chapter 75; and appeals, chapter 77, 
excluding only labor-management relations under chapter 71, for which 
there already is a national security waiver--my question to the Senator 
from Connecticut is whether we might be able to bridge the gap by 
giving the President national security authority for waiver to devise 
the human resource management system in the event the President makes a 
determination national security requires it, borrowing the language 
from chapter 71 where the agency or subdivision has a primary function 
of intelligence, counterintelligence, investigative or national 
security work, and the human resources arrangements cannot be applied 
in a manner consistent with national security requirements and 
considerations so in effect we are borrowing the national security 
waiver provisions which apply as to collective bargaining for the other 
five categories where the President is seeking some flexibility.
  Mr. LIEBERMAN. Madam President, responding through you to the Senator 
from Pennsylvania, I genuinely appreciate the thought and effort he is 
giving to this to try to find a way out of an impasse that is stopping 
us from

[[Page S9668]]

doing what we really have a responsibility to do, which is to create 
the Department of Homeland Security as soon as possible. And he has 
just offered, on the floor of the Senate, a new idea, at least one I 
had not heard before and I do not believe has been part of the 
negotiations.

  I think we ought to try to sit down--involving, obviously, some of 
those who have been working on this compromise; Senators Nelson, 
Chafee, Breaux, folks from the White House, Senator Thompson and I and 
yourself, I say to you, Senator Specter--as soon as we can to see 
whether this idea you have offered can be a breakthrough.
  The fact is, on collective bargaining rules, as I have been saying 
throughout this debate, not on a national security premise for 
eliminating the right to be a member of a union, but throughout the 
statute there is a system that says that a President, a Secretary, an 
agency head, in time of national emergency, can do almost anything to 
override collective bargaining provisions because the national 
emergency, national security comes first.
  In a way, you are suggesting a similar priority, hierarchy, for the 
civil service rules. It is an idea very much worth considering. I fear 
we are kind of on automatic pilot, with a cloture vote--the fifth one, 
if I count correctly--on which we are not going to invoke cloture. And 
the clock is running because we are heading, soon, towards a debate on 
an Iraq resolution, which would take the homeland security measure back 
to the calendar.
  So I welcome your thoughtful initiative. I, for one, will be glad to 
spend any amount of time with you and the others I mentioned, and 
anyone else, to see if we can break this logjam, present some due 
process for Federal workers--which I know is your desire as well, I say 
to Senator Specter--but also preserve the executive authority, not just 
of this President but of the Presidency on into the future, 
particularly when national security is involved.
  So I thank my colleague, and I hope we can go to work on this idea.
  Mr. SPECTER. Madam President, I thank the Senator from Connecticut 
for that answer. When he focuses in on the national security 
requirements, I think he puts his finger on the nub of the issue: That 
if there is a national security interest here that would warrant the 
waiver on the collective bargaining matters, which are already set 
forth in existing law, the same rationale ought to apply to give the 
President greater authority under the other chapters where there really 
is a national security issue at stake.
  I quite agree with the statement by the Senator from Connecticut that 
we have to move with speed because if we do not come to terms, this 
matter will be removed from the calendar in deference to the 
consideration of a resolution authorizing the use of force as to Iraq.
  We all know there is a target date of this Friday, October 4, which 
has been delayed until next Friday, October 11; and that is the date by 
which we are likely to be out of session. So if we do not bridge this 
narrow gap now, and if we then go on to the resolution for the use of 
force, it is highly likely we will not conclude the legislation on 
homeland security before we recess. I think that would be a grave 
mistake.
  The proponents of the Gramm-Miller amendment have asked for a vote on 
their amendment without any intervening second-degree amendments. And 
while I would be prepared to give the proponents of Gramm-Miller such a 
vote, the proponents of the Nelson amendment have a right, as a second-
degree amendment, to proceed to have a vote on their second-degree 
amendment.
  So while I supported the position and voted against cloture when the 
cloture motion was made on Gramm-Miller last week--and I did so in part 
to give an opportunity for compromise on this matter, but also in part 
to leave an opportunity for an amendment which this Senator intends to 
offer, which would bring all of the intelligence agencies under one 
umbrella--but it seems to me at this point that we ought to move ahead 
and invoke cloture on Gramm-Miller. That will then bring to a head the 
second-degree amendment offered by Senator Nelson. And then we would 
finally get down to some of the really tough negotiations to try to 
bridge the gap. There is nothing that promotes the negotiations like 
the imminence of a vote on a specific subject.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. THOMPSON. May I inquire as to how much time we have left?
  The PRESIDING OFFICER. Does the Senator from Pennsylvania yield?
  Mr. SPECTER. I do, without losing my right to the floor, for a 
question.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THOMPSON. Madam President, let me withdraw that inquiry for the 
moment and say that it appears we are about out of time with regard to 
those who oppose cloture. The time has been running against us. And now 
it appears that the Senator from Pennsylvania supports cloture. I would 
suggest that the time should not run against those of us who oppose 
cloture. Should that time not be allocated differently?
  Mr. SPECTER. Madam President, I think the Senator from Tennessee 
raises a very good point. I will yield the floor momentarily. But 
before doing so, if I might have the attention of the Senator from 
Tennessee. I will yield the floor after a question to the Senator from 
Tennessee.
  The Senator from Connecticut and the Senator from Tennessee and I had 
been in the cloakroom discussing these matters, and we had discussed 
how close we are. As the Senator from Tennessee has noted, the Senator 
from Connecticut ventured the view that we were very close on the two 
labor-management issues, as to adding the language of Nelson to the 
existing law which retains the national security waiver, and then the 
suggestion of giving the President flexibility where the President 
makes a determination of national security.
  I inquire of the Senator from Tennessee what his view is as to how 
close we are to resolving these two outstanding issues.
  Mr. THOMPSON. Madam President, if I may respond.
  Unfortunately, not as close as I think the Senator apparently thinks. 
With regard to the labor-management relations issue that was referred 
to initially by the Senator from Pennsylvania, and was the subject of 
the conversation, the dialog, a moment ago with the Senator from 
Connecticut with regard to the Presidential authority, the point was 
made that there is a disagreement with the wording of the portion of 
the amendment that refers to the ``majority of the employees.'' The 
suggestion was made it should be ``substantial number of employees.'' 
The Senator is correct that is a point, but it is only one point.
  My understanding is we have submitted language to those on the other 
side of this issue that addresses, in addition to that, the concern 
that the President is limited to acting with regard to matters of 
terrorism only.
  It is the last couple of lines of page 12, of the draft that I have 
anyway, where the current language says ``or investigative work 
directly related to terrorism investigation.''
  The language that has been submitted by us is ``or preventing 
investigation or responding to terrorists or other serious threats to 
homeland security.'' In other words, why should this President be 
limited to exercising his authority to a more narrow range of 
activity--that would be terrorism--when there could be some other 
national security issues that prior Presidents have had the opportunity 
to deal with that this President would not? So the compromise was 
suggested to keep the focus on terrorism but also add other serious 
threats to homeland security.
  As I understand it, that suggestion lies at this moment with the 
other side. We have not had a response to that. I wouldn't want those 
listening to think there is only a one-word difference between us with 
regard to that issue, as unfortunate as that may be.
  Mr. SPECTER. Madam President, I thank the Senator from Tennessee for 
that response. He raises a good issue. I agree with him the earlier 
language which exists presently, categorizing national security 
generally and consistent with national security requirements and 
considerations, is the broader language. I do not think the additional 
language of terrorism seeks to limit that, but I think the Senator from 
Tennessee raises a good point that it ought to be clarified so the 
national security considerations are broader than just terrorism.

[[Page S9669]]

  I direct the attention of the Senator from Tennessee to the second 
consideration; that is, whether a national security waiver or 
determination by the President of national security considerations 
would be sufficient on the issues of the flexibility on the other five 
chapters.
  Mr. THOMPSON. Madam President, that is certainly worth considering, 
as Senator Lieberman reflected a moment ago. Once you get down to it, 
the issue has to do with two situations, as I see it. One has to do 
with disputes involving collective bargaining agreements and what you 
do about that. There are issues as to matters somewhat minor, if not 
frivolous. Some matters have taken years to resolve--whether or not the 
annual company picnic was called off and things of that nature.
  On the other hand, there are other issues that may be part of a 
collective bargaining agreement that might limit, for example, the 
authority to transfer someone to a border where that was needed.
  Unless there is a national emergency situation, the President or the 
Secretary should not be limited to situations that have already become 
emergencies. They should be proactive and preventive. That is one 
category of issues.
  I could see why we might have the status quo with regard to the run-
of-the-mill kind of collective bargaining issues we have, limit the 
Secretary's flexibility even with regard to those matters, as long as 
with regard to the matters that really mattered, the President had such 
a waiver or a certain amount of discretion in that area.
  The same thing could be said with regard to the second category of 
matters at issue; that is, matters concerning individual employees in 
terms of dismissal, discipline, things of that nature. It often takes 
up to 18 months to process--multilevel, multiappeal, multiavenue, 
multimonths, into years. The status quo with the national security 
waiver would be less likely to work in such a situation because I can't 
imagine a situation where the President would want to step in and 
intervene with regard to the disciplining of one particular employee.
  There is a category, that first category I mentioned, of things where 
what the Senator suggests should be seriously considered.
  The PRESIDING OFFICER (Mrs. Clinton). Time allotted to the minority 
has expired.
  The Senator from Connecticut.
  Mr. LIEBERMAN. Madam President, had my friend from Tennessee used his 
time?
  The PRESIDING OFFICER. Yes.
  Mr. THOMPSON. In a manner of speaking, I have now discovered that the 
Senator from Pennsylvania is on the other side of this issue.
  Mr. LIEBERMAN. May I say to my friend from Tennessee, that was a 
surprise to me as well, a pleasant surprise in my case, one I 
appreciate.
  Mr. THOMPSON. Madam President, I ask whether or not the Senator would 
entertain a unanimous consent request perhaps for however much time the 
Senator needs, 15 minutes, and perhaps 10 minutes additional time for 
me.
  Mr. REID. Reserving the right to object, we have our party 
conferences starting at 12:30. We really have a lot to do today. If we 
do that, this vote will not be completed until nearly 1 o'clock. I 
would have to respectfully object.
  The PRESIDING OFFICER. The Senator from Connecticut has 12 minutes 30 
seconds remaining.
  Mr. THOMPSON. Would the Senator from Connecticut give me a couple of 
minutes of his time?
  Mr. REID. Madam President, I ask unanimous consent that the Senator 
from Tennessee have 3 minutes on his own time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, I rise to express my deep 
disappointment in the language in the Gramm substitute related to 
unaccompanied alien children. As a result, I stand in support of Title 
XII of the Lieberman substitute, which contains provisions based on S. 
121, bipartisan legislation I introduced in Jan. 2001.
  My disappointment is best understood with the following example. Not 
long ago, the Nation's attention was focused on the plight of Elian 
Gonzalez and whether he should be allowed to stay in the U.S. or return 
to Cuba.
  At the same time, a young 15-year old Chinese girl stood before a 
U.S. immigration court facing deportation proceedings.
  She had found her way to the United States as a stowaway in a 
container ship captured off Guam, hoping to escape the repression she 
had experienced in her home country.
  And although she had committed no crime, the INS sent her to a 
Portland jail, where she languished for seven months. When the INS 
brought her before an immigration judge, she stood before him confused, 
not understanding the proceedings against her.
  Tears streamed down her face, yet she could not wipe them away 
because her hands were handcuffed and chained to her waist.
  While the young girl eventually received asylum in our country, she 
unnecessarily faced an ordeal no child should bear under our 
immigration system.
  This young Chinese girl represents only one of 5,000 foreign-born 
children who, without parents or legal guardians to protect them, are 
discovered in the United States each year in need of protection.
  When discovered by Federal authorities, these children are not always 
greeted with the special care and attention they deserve. Nearly 2,000 
of them served time in juvenile jails, even though most had committed 
no crime. One child was even detained for 5 years. Many are handcuffed 
and placed in cells with other juveniles who have committed serious 
violent crimes.
  Because of their age and inexperience, children may not be able to 
articulate their fears or testify to their needs with the same degree 
of accuracy as adults. Yet despite these facts, no Federal laws and 
policies have been developed and implemented, thus far, to protect 
them.
  While not all children will merit asylum, providing them appointed 
counsel would help the INS and the courts understand the special 
circumstances of the child's arrival in the United States, while at the 
same time help the child to understand the process he or she is 
undergoing.
  In my mind this goes a long way in explaining my opposition to the 
Gramm substitute as it relates to unaccompanied alien children and why 
the Lieberman substitute is much stronger in this regard.
  Both pieces of legislation sought comprehensive reform in the way in 
which these vulnerable children are treated while under the watch of 
immigration authorities.
  The Gramm substitute, however, would strip many of the important 
reforms relating to unaccompanied alien children from the homeland 
security bill.
  Moreover, the provisions with respect to these children included in 
the Gramm substitute are nothing more than a legislative sleight of 
hand that appears to make reforms, but in reality would render those 
provisions meaningless.
  Clearly, most unaccompanied alien children do not pose a threat to 
our national security, and must be treated with all the care and 
decency they deserve outside the reach of this new Department.
  More specifically, the unaccompanied child protection provisions now 
contained in Title XII of the Lieberman substitute would make critical 
reforms to the manner in which unaccompanied alien children are treated 
under our immigration system.
  These provisions would also: preserve the functions of apprehending 
and adjudicating immigration claims of such children, and, when the 
situation warrants, of repatriating a child to his home country, within 
the Immigration Affairs Agency, and under the larger umbrella of 
homeland security.
  The unaccompanied alien child protection provisions would transfer 
the care and custody of these children to the Department of Health and 
Human Services. Its Office of Refugee Resettlement has real expertise 
in dealing with both child welfare and immigration issues.
  At the same time, these provisions would establish minimum standards 
for the care of unaccompanied alien children; provide mechanisms to 
ensure that unaccompanied alien children have access to counsel; permit 
the Director of the Office of Refugee Resettlement to appoint guardian 
ad litem,

[[Page S9670]]

if necessary, to look after the children's interests; and provide 
safeguards to ensure that children engaged in criminal behavior remain 
under the control of immigration enforcement authorities at all times.
  Roughly 5,000 foreign-born children under the age of 18 enter the 
United States each year unaccompanied by parents or other legal 
guardians. Some have fled political persecution, war, famine, abusive 
families, or other life-threatening conditions in their home countries.
  They often have a harder time than adults in expressing their fears 
or testifying in court, especially if they lack English language 
proficiency.
  Unbelievably, some of these children are subjected to such punitive 
actions as shackling, the use of leg manacles, and strip searches while 
in INS custody. Others are housed with violent juvenile offenders, or 
subjected to solitary confinement.
  Despite these horrific circumstances, the Federal response has fallen 
short in providing for their protection.
  Unaccompanied minors are among the most vulnerable of the world's 
asylum seekers, and they deserve our support and protection.
  And yet, no immigration laws or policies currently exist that 
effectively meet the needs of these children. Instead, children are 
being forced to struggle through a complex system that was designed for 
adults.
  It is important that we address this issue in this present 
legislation for a number of reasons.
  First of all, as we contemplate transferring the functions of the 
Immigration and Naturalization Service (INS) into the proposed new 
Department of Homeland Security, we must ensure that the new Department 
is not burdened with functions that do not relate to its core mission.
  For decades now, the INS has failed in its responsibility to care for 
these vulnerable children. As we transfer and reshape the INS in this 
legislation, it is imperative to relieve the agency of its 
responsibility of the care and custody of unaccompanied children.
  Doing so would accomplish two ends: one, it would permit the INS to 
focus its energies, efforts, and attention on its core missions; and 
two, it would transfer the care and custody of the these children to 
the Office of Refugee Resettlement, ORR, an office that is better 
suited and much more experienced in handling the complexities of the 
children's situations.
  As we turn over these responsibilities to a different agency, 
Congress must clearly define its expectations of the agency regarding 
the standards of care for these children.
  It would be irresponsible for us to do anything less.
  Quite frankly, it confounds me that, after more than a century since 
the first federal immigration law was enacted, our immigration system 
is still incapable of meeting the special needs of these children, 
whether those needs are medical, psychological, or legal.
  This is why, in an effort to change current U.S. policy toward the 
treatment of unaccompanied foreign-born children, I introduced the 
``Unaccompanied Alien Child Protection Act'', S. 121.
  The overall purpose of this legislation is to refocus our policy away 
from treating these children like criminals, and to move toward a 
system that protects and serves their best interests.
  Sometimes, this means safely returning them to a parent or guardian 
in their home country.
  In other, more extraordinary cases, a child's best interest may 
involve a grant of asylum.
  As introduced, S. 121 was a reasonable, moderate, bipartisan bill 
with the main purpose of reforming the care of unaccompanied alien 
children who come to the attention of Federal authorities.
  As reasonable as it was, my staff and I conducted numerous meetings 
and phone calls with the Department of Justice and the INS, to further 
refine the bill's provisions.
  Last February, the Judiciary Subcommittee in Immigration held a 
hearing on the legislation.
  I listened to all of the ideas that they expressed, and I addressed 
almost all of them in the modifications that were made in the version 
of the legislation now included in Title XII of the Lieberman 
substitute.
  Still, after all this compromise, the administration did not bother 
to even mention Title XII in its statement of administration policy of 
this legislation.
  Given the moderate nature of Title XII, and given the fact that so 
many Republicans are cosponsors of it, I urge the Senate to maintain 
the provisions I have outlined today, rather than accept the 
evisceration of the bill's core protections that would result under the 
Gramm substitute.
  If it becomes necessary, in the coming days I intend to offer an 
amendment to restore these important provisions to the homeland 
security bill.
  And I will call on my colleagues to support that amendment.
  Mr. AKAKA. Mr. President, today I rise once again to point out 
problems with the amendment offered by Senators Gramm and Miller which 
would take away the rights of Federal workers. Last week I spoke of the 
need to provide full whistleblower protection to employees in the new 
Department of Homeland Security, and how the Gramm-Miller amendment 
fails to provide such protection despite claims to the contrary. While 
the substantive rights are maintained for whistleblowers, the methods 
to enforce such rights are not part of the amendment.
  And despite claims made by the Senator from Tennessee, Senator 
Thompson, yesterday that veterans' preference would be protected, the 
Gramm-Miller amendment fails to fully protect veterans in the new 
Department.
  It appears that my colleagues believe that by maintaining the merit 
system principles, the new Department will protect our Federal 
employees from retaliation for blowing the whistle and from violations 
of veterans' preference requirements. However, simply following the 
merit principles will not fully protect the Federal workers who protect 
our Nation from terrorist attacks. We must provide a neutral third-
party method to enforce such rights.
  The Gramm-Miller amendment fails to do this.
  Currently, Federal employees, who believe that they have been denied 
a position or have been subject to a designer Reduction-In-Force, RIF, 
action in violation of veterans' preference requirements, can challenge 
such wrongful actions through the Merit Systems Protection Board or 
through a union grievance procedure. Whistleblowers who allege that 
they have been subject to a prohibited personnel practice may go 
through the Office of Special Counsel and to the MSPB for corrective 
action. In addition, whistleblowers can bring allegations of 
retaliation through the union grievance procedure. The Gramm-Miller 
substitute amendment would block both routes for redress.
  Under Gramm-Miller, the Department of Homeland Security could waive 
any and all due process appeals to the Merit Systems Protection Board. 
Instead, the due process procedures in current law would be replaced 
with an internal department appeals process. By allowing the agency, 
rather than an independent third party, to determine whether the agency 
violated veterans' preference or other employee protection laws, we 
will have removed the impartiality of the process.
  However, under the Lieberman substitute, as well as the Nelson-
Chafee-Breaux amendment, veterans' rights are not compromised. The 
appeals to the MSPB under 5 U.S.C. Chapter 77 may not be waived.
  In addition, Chapter 71 of Title 5 which relates to Labor-Management 
Relations, may not be waived. This allows veterans and whistleblowers 
who are in collective bargaining units to exercise their right to use a 
negotiated grievance process to challenge violations of veterans' 
preference requirements or the Whistleblower Protection Act. Under the 
Gramm-Miller substitute, the new Department could waive the labor-
management statutory requirements in Title 5. As such, grievance rights 
and union representation could quickly disappear.
  Quite simply, under the Gramm-Miller substitute, veterans may still 
have veterans' preference rights, but they will have no way to seek 
redress for any violation of those rights. We have a proud history of 
protecting the rights of veterans and federal workers who protect this 
country. Whether they are whistleblowers or veterans, these Federal 
employees serve their Nation well. We need to support those who are 
willing to serve their Government.

[[Page S9671]]

  Mrs. FEINSTEIN. Mr. President, I rise to reaffirm my overall support 
for a Department of Homeland Security. And I remain convinced that it 
is still possible to reach a consensus on this critical issue, and that 
we must strive to do so before the end of this session.
  However, after giving this matter a great deal of thought, I must 
stand in opposition to the provisions in the Gramm-Miller bill that 
would strip many of the protections afforded to employees of the new 
Department.
  As it stands, the bill's language would take away rights from some 
200,000 Federal employees, rights that have been available for decades 
to most of the Federal workforce.
  None of us dispute that any organization, particularly one entrusted 
with such a vital mission as homeland security, can function properly 
only if its managers have the authority both to offer incentives to 
talented employees and to fire negligent or ineffective employees.
  And despite a great deal of rhetoric to the contrary, such 
flexibility already exists under the current labor provisions that 
govern the Federal workforce.
  This flexibility was granted under the terms of the Civil Service 
Reform Act of 1978, allowing managers to: performance standards, and 
have the power to fire employees for performance failures as long as 
there is at least some plausible evidence.
  In light of these facts, it is downright wrong to suggest that the 
Government cannot fire employees who, say, are drunk on the job or who 
commit crimes.
  In fact, under current law, managers can remove such employees from 
their jobs immediately, while the employees' appeal can be settled 
definitively within 30 days.
  Under current law, managers also have wide latitude in transferring, 
suspending, and reassigning employees, as well as in appointing 
candidates from outside the federal government to fill open positions.
  On both sides of the aisle, there is virtual unanimity that any 
homeland security legislation must include a package of additional 
flexibilities regarding hiring, training, separation, and retirement. 
These additional flexibilities are in the Lieberman substitute.
  And yet, the President has threatened to veto the Lieberman 
substitute, unless the Senate agrees to the labor provisions of the 
Gramm-Miller substitute.
  Apparently, the President is willing to scrap crucial legislation to 
protect our country from terrorism if he is not given open-ended 
authority to abolish or limit federal employee rights and protections.
  In my view, this threat is unnecessary, unwarranted, and highly 
unproductive.
  And now the President has rejected a perfectly sound bipartisan 
compromise proposed by Senators Nelson, Breaux, and Chafee. This 
compromise, which I support, provides what he wants, management 
flexibility authority, and what the Federal Government requires, 
safeguards to ensure that he cannot abuse that power.
  This amendment provides the President broad leeway to change the 
civil service rules governing hiring, promotions, dismissals, 
performance appraisals, classifications, and pay rates for Homeland 
Security Department employees.
  At the same time, Federal employee unions could object. If the two 
sides could not agree on the changes, then the Federal Services 
Impasses Panel, a board of seven presidential appointees, would 
arbitrate.
  This amendment allows the President to revoke an employee's rights to 
collectively bargain and to form unions, if that employee's duties 
materially change and these duties directly relate to intelligence, 
counter-intelligence, or investigations relating to terrorism.
  In threatening to veto this compromise, the administration has tried 
to frame the debate in terms of national security.
  For instance, the President's spokesman recently said that the 
compromise bill would prevent the president ``from making decisions 
based on national security, no matter how urgent a crisis we find 
ourselves in.''
  I find it disturbing that the administration has suggested that 
putting any restriction on the President's authority to limit or 
abolish federal employee rights and protections somehow jeopardizes our 
national security.
  The way I see it, the administration is getting it exactly backwards.
  The administration's attempt to give the executive branch total 
authority to rewrite the civil service system without consulting anyone 
would not help protect our country. Indeed, it would leave it more 
vulnerable.
  At a time of such massive restructuring of the federal government, it 
is absolutely critical that we maintain as much continuity as possible.
  Yet the Gramm-Miller substitute's open-ended language would allow the 
President to eliminate, by fiat, many important workers' rights.
  This would be a huge blow to the morale and productivity of many 
thousands of Federal employees, and would risk the loss of many highly 
qualified individuals to the private sector.
  There is also a large percentage of workers who, if push comes to 
shove, can option for early retirement. This is no time for the federal 
government to suffer a so-called ``brain drain,'' and be forced to 
train novices from scratch.
  In the middle of our war on terrorism, the last thing we want to do 
is lose experienced employees on the front lines of this war.
  We are talking about employees at the Coast Guard, the Department of 
Defense, the Federal Emergency Management Administration, the Border 
Patrol, the Federal Aviation Authority, and other agencies.
  We are talking about men and women who are working around the clock 
to prevent another terrorist attack and to protect our citizens.
  I for one do not see any inherent clash between collective bargaining 
rights and homeland security.
  For example, Department of Defense civilians with top secret 
clearances are long-standing union members whose membership has not 
compromised our national security.
  And many of the heroes of September 11 were unionized. The New York 
City firefighters who ran up the Twin Towers did not see any conflict 
between worker rights and emergency response.
  And let's not forget that Federal employees do not have the right to 
strike.
  Why haven't supporters of the President's proposal not been able to 
identify one instance of a labor dispute which contributed to a 
breakdown in our national security?
  I have heard from many Federal employees in California who would be 
affected by this legislation. I would like to share with you the words 
of just one.
  Joseph Dassaro is a Senior Border Patrol Agent assigned to the San 
Diego Sector of our southern border. He has been an agent for ten 
years, and is President of the San Diego Chapter of the National Border 
Patrol Council. In his words: ``The loss of collective bargaining 
rights and civil service protections would force me to leave the Border 
Patrol. Simply put, without the union and the Civil Service Reform Act 
. . .''
  ``I have no faith in the ability of the agency, or any subsequently 
created agency, to provide working conditions in which I can operate in 
the best interests of this nation. Additionally, based on the vast 
input I have received from the many agents I represent, I can assure 
you that [if the President's proposal is enacted], Border Patrol 
attrition rates would more than double . . .
  ``At record levels, agents are applying for local police positions in 
Southern California. Recently, the San Diego County Sheriffs 
[Department] interviewed over twelve agents from one Border Patrol 
station. Not only do these agencies offer better pay, incentives, and 
working conditions, they also offer an environment which rewards merit 
and seniority.''
  Mr. Dassaro, along with the hundreds of thousands of other Federal 
employees, has been working day in and day out to keep our country 
secure.
  I do not know why the administration wants to take fundamental rights 
and protections away from these patriotic Americans. We should not be 
attacking job security under the guise of national security.
  This debate on homeland security should not be an exercise in scoring 
political points at the expense of labor protections for Federal 
employees, protections that are already in place at

[[Page S9672]]

virtually every other Federal agency and which have functioned smoothly 
for many years.
  Which is why I ask my colleagues to vote against the anti-union 
provisions in Gramm-Miller, while urging the Bush Administration to 
reconsider the compromise offered by Senators Nelson, Breaux and 
Chafee. 
  Mr. KENNEDY. Mr. President, we know that our Nation faces a very 
serious threat of terrorism. To protect our national security in 
today's world, we need an immigration system that can carefully screen 
foreign nationals seeking to enter the United States and that can 
protect our Nation's borders. We need a system that can make effective 
use of intelligence information and identify those who seek to harm us.
  Unfortunately, our current Immigration and Naturalization Service is 
not up to these challenges. For years, INS has been plagued with 
problems, from mission, overload to mismanagement to inadequate 
resources. As a result, INS has been unable to meet its dual 
responsibility to enforce our immigration laws and to provide services 
to immigrants, refugees, and aspiring citizens.
  The immigration reforms in the Lieberman substitute amendment are 
carefully designed to correct these problems and bring our immigration 
system into the 21st century. The amendment untangles the overlapping 
and often confusing structure of the INS and replaces it with two clear 
lines of command, one for enforcement and the other for services. It 
also includes a strong chief executive officer, the Under Secretary for 
Immigration Affairs, who, under the direction of the Secretary of 
Homeland Defense, will act as a central authority to ensure a uniform 
immigration policy and provide effective coordination between the 
service and the enforcement functions. Developed on a bipartisan basis, 
in consultation with respected experts, the immigration reforms in the 
Lieberman substitute emphasize clear direction, close coordination, and 
genuine accountability to the American people.
  On these key issues, the Gramm-Miller substitute moves in exactly the 
wrong direction. Rather than establishing a single, accountable 
director for immigration policy, Gramm-Miller establishes three: the 
Under Secretary for Border and Transportation Security, the Under 
Secretary for Immigration Affairs, and the Chief of Immigration Policy 
within the Deputy Secretary's office. Little coordination is provided 
among these three positions. These officials will have authority to 
issue conflicting policies and conflicting interpretations of law. The 
result for the Nation's immigration system is likely to be a new period 
of disarray, not real reform.
  Given the vast responsibilities of our immigration agency, the large 
number of people who cross our borders, and the major national-security 
concerns that have arisen since September 11, we will do the country a 
great disservice if we enact a so-called ``reform'' that makes the 
chronic problems of the INS even worse. We deserve a well-thought-out, 
effective reform, like that included in the Lieberman substitute, not 
the proposal offered by Gramm-Miller.
  We need a separate and comprehensive directorate within which we can 
balance border security, provision of services, and efficient and fair 
enforcement of the immigration laws. Within this separate directorate, 
it is essential to include both the service and the enforcement 
components of immigration policy. Nearly every immigration-related 
action involves both enforcement and service components. Coordination 
between the two is critical to ensure that the laws are interpreted and 
implemented consistently. Coordination cannot be achieved merely by 
sharing a database or having a common management structure far up the 
ladder. Coordination will not be achieved if enforcement and services 
are housed in different departments.
  That, however, is exactly what the Gramm-Miller proposal does. The 
two most critical enforcement functions, border patrol and inspections, 
will be taken from other immigration functions and placed in the Border 
and Transportation Protection Directorate. The formulation of 
immigration policy, our only chance to achieve coordination between 
these dispersed functions, will be subject to the conflicting views of 
various officials spread out in the new Department. With its dispersed 
immigration functions and failure to provide centralized coordination, 
Gramm-Miller is a recipe for failure.
  Consider this example. An executive for a large international 
corporation arrives in the United States with a business visa that 
expires in 30 days. The inspector is reluctant to admit the executive, 
since his visa will soon expire. The executive states that his attorney 
has filed for a renewal of the visa. Under Gramm-Miller, with its 
failure to provide coordination between the service and enforcement 
functions, the inspector will not be able to verify that a renewal 
application has been filed, and the executive will be denied admission. 
Such a mistake, repeated many times each year, will be disruptive to 
our economy.
  Or consider an asylum seeker picked up by a border patrol agent. He 
claims that he will face persecution if returned to his home country. 
His brother enters the U.S. with a visa and is granted asylum, a 
service bureau function. Without effective coordination between 
services and enforcement, the brother processed by the service bureau 
will be allowed to stay and become a permanent resident, while the 
brother picked up by the border patrol may be returned to face 
persecution or even death. These are mistakes that we cannot tolerate.
  We need a reform that ensures uniform policies and consistent 
interpretations of the law. We know from painful experience that 
inconsistencies in interpretation and enforcement, with no one in 
charge to resolve differences, can lead to unacceptable results. We 
need an immigration system that works. The Lieberman substitute will 
give us that system. The Gramm-Miller substitute will repeat--and 
increase--the mistakes of our past.
  The Lieberman substitute also deals with another serious flaw in our 
current immigration system--the care and custody of unaccompanied alien 
children. Senator Feinstein has been working on this issue for many 
years, and her bipartisan legislation is included in our reforms. It 
addresses the needs of children arriving alone in the United States. 
Often, these children have fled from armed conflict and abuses of human 
rights. They are traumatized and desperately need protection. As 
children, they deserve special care and protection.
  Jurisdiction over their care and custody does not belong in a 
department dedicated to preventing security threats. Our plan transfers 
responsibility for these children to the Office of Refugee Resettlement 
in the Department of Health and Human Services, an office that has 
decades of experience working with foreign-born children and is well-
equipped to place these children in appropriate facilities where they 
will receive the care and attention they deserve.
  We also provide safeguards to ensure that children have the 
assistance of counsel and guardians in the course of their proceedings. 
Currently, over half of the children in immigration proceedings are 
unrepresented by counsel. Children as young as 18-months-old have 
appeared in immigration court without a lawyer. These children simply 
cannot be expected to effectively represent themselves when faced with 
the complexities of U.S. immigration law.
  The Gramm-Miller substitute provides plainly inadequate protections 
for these vulnerable children. Although care and custody is transferred 
to the Office of Refugee Resettlement, this substitute leaves out the 
counsel and guardian provisions.
  The fear that providing government-funded counsel for children will 
set a precedent for the provision of counsel for other populations in 
immigration proceedings is unfounded. Our plan contains a very narrow 
exception for vulnerable children, and only Congress can extend that 
exception to other groups.
  Guardians are crucial in order to ensure that the best interests of 
children are addressed throughout their immigration proceedings. 
Guardians would ensure that the child understands the nature of the 
proceedings. Immigration proceedings are the only legal proceedings in 
the United States in which children are not provided the assistance of 
a guardian or court-appointed special advocate.

[[Page S9673]]

  Finally, the Lieberman substitute remedies decades-old problems with 
our immigration court system. That system--called the Executive Office 
for Immigration Review--is part of the Department of Justice. Every 
day, immigration courts make life-altering decisions. The interests at 
stake are significant, especially for persons facing persecution and 
for long-time permanent residents, who face permanent separation from 
family members.
  Despite these major responsibilities, the immigration court system 
exists by regulation only. As such, it can be moved, dissolved, or 
reconfigured at any time, without Congressional involvement. For years, 
immigration judges have been criticized because they are too closely 
aligned with immigration enforcers. Their impartiality is jeopardized 
when both judge and prosecutor are too closely linked. These criticisms 
will only intensify if the immigration courts are relocated to the new 
security agency.
  We need an immigration court system that provides individuals with a 
fair hearing before an impartial and independent tribunal, and 
meaningful appellate review. The Lieberman substitute maintains the 
immigration court system at the Justice Department, so that immigration 
judges and immigration enforcers are effectively separated. It also 
codifies the existing court structure and its components, making it a 
permanent part of our immigration system.
  The Gramm-Miller substitute would seriously undermine the role of 
immigration judges. It vests the Attorney General with all-encompassing 
authority, depriving immigration judges of their ability to exercise 
independent judgement. Even more disturbing, the Gramm-Miller proposal 
could curtail the right to appeal adverse decisions, since the Attorney 
General will have the authority to change or even eliminate appellate 
review. This result is a recipe for mistakes and abuse. An independent 
judicial system is essential to our system of checks and balances. 
Immigrants who face the severest of consequences deserve their day in 
court.
  In reforming our immigration system, we must isolate terrorists 
without isolating America. We must protect our Nation, and we must also 
protect immigrants. In strengthening our defenses against terrorism, we 
must settle for nothing less. Americans are united in our commitment to 
win the war on terrorism and protect the country from future attack. An 
essential part of meeting this challenge is protecting the ideals that 
America stands for here at home and around the world.
  The Lieberman substitute acts on this principle by providing basic 
civil rights and privacy safeguards in the new Department of Homeland 
Security. A civil rights officer will oversee civil rights issues and 
advise the Secretary on policy matters. A privacy officer will perform 
similar functions on privacy issues. An official in the Inspector 
General's office will investigate civil rights abuses.
  We have heard no complaint from either the administration or our 
Republican colleagues about these civil rights provisions. The 
administration's detailed Statement of Policy on September 3rd did not 
contain a single objection to them. Nevertheless, all of these 
provisions have been removed from the Gramm-Miller substitute.
  Today, many Americans are concerned about the preservation of basic 
liberties protected by the Constitution. There continues to be a debate 
over the constitutionality and wisdom of some of the administration's 
polices and actions since September 11. Clearly, as we work together to 
bring terrorists to justice and enhance our security, we must also act 
to preserve and protect our Constitution.
  The civil rights provisions in the Lieberman substitute are limited 
in scope, but will be essential to the proper role of the new 
Department of Homeland Security. They should be included in whatever 
bill the Senate ultimately passes, and I urge the Senate to accept 
them.
  Earlier this week, our committee held a hearing on the grave public 
health challenge of West Nile fever. We heard how vital it is for CDC, 
NIH and FDA to work together closely to respond to this deadly 
epidemic. The same health agencies that are responding to West Nile 
today may need to respond to a biological attack tomorrow. The last 
thing we should do is disrupt the close coordination among our health 
agencies that will be needed for an effective response to such an 
attack. Yet this is exactly what the Gramm-Miller amendment would do by 
transferring responsibilities for bioterrorism research and response to 
the new Department of Homeland Security. While claiming to enhance our 
preparedness for bioterrorism, the amendment would actually diminish it 
by needlessly splitting responsibilities for bioterrorism between HHS 
and the new Department.
  We heard from Dr. Tony Fauci, the Nation's leading expert on 
infectious disease, that NIH is working swiftly to develop a new 
vaccine against the West Nile virus. Dr. Fauci and the other medical 
leaders at NIH should retain the responsibility for developing new 
vaccines for anthrax, Ebola and other biological weapons. These 
responsibilities should not be transferred to a new department with 
unproven scientific expertise. Certainly, the new Department should set 
broad priorities for our homeland security research program, but the 
funding and the scientific responsibility for carrying out that 
research should remain with NIH.
  Sadly, the Gramm-Miller amendment also includes fails to include 
protections for the ethical treatment of human subjects in research. 
America has a tragic history of ethical abuses in national security 
research. In our Senate inquiries during the 1970s, we learned how the 
CIA had given LSD and other dangerous drugs to experimental subjects 
without their knowledge or their consent. These shameful experiments 
led to the death by suicide of an agent in New York.
  We must not let history repeat itself in the research carried out by 
this new Department. Basic protections for human subjects cover 
research conducted by all other Federal agencies. They should also 
apply to the new Department. These protections should not be 
discretionary. They should be a required element of every research 
project that the new Department conducts.
  I also want to speak today about America's workers. We live in a 
nation forever changed by the tragic events of September 11. The 
dreadful images seared into our memories on that fateful day were grim 
proof to every American that we are vulnerable to grave new threats. We 
must take the necessary steps to protect America from these new 
dangers. We must act wisely as we create a new Department of Homeland 
Security. We must ensure that our actions truly enhance, rather than 
diminish, our Nation's security. And we must meet our security needs in 
ways that reflect the values that make America the envy of the world.
  As we debate the formation of this new agency, we should remember the 
events of September 11 and the heroism of our Nation's union workers in 
the cause of homeland security. Union members risked and lost their 
lives and saved countless others through their actions on September 11. 
We will never forget the example that firefighters, construction 
workers and many government workers set that day.
  Union workers have also shown great bravery and extraordinary 
sacrifice in the service of homeland security since September 11. The 
postal workers and the hospital worker killed as a result of 
bioterrorism were all union members. The brave flight attendant, whom 
the President recognized in the State of the Union Address for 
preventing terrorism, is a member of a union.
  The dedication and resolve of these union members truly represents 
the best of America. Over 43,000 of the Federal workers affected by the 
proposed Government reorganization are currently union members. These 
are the workers who risk their lives each day to protect our Nation's 
borders. They are the workers from the Federal Emergency Management 
Authority who coordinated the Federal emergency response on September 
11. These workers are out every day on the high seas to rescue those in 
need and to prevent dangerous cargo from reaching our shores. They are 
also the workers dedicated to making our Nation safer from the threat 
of bioterrorism.

  Among the ranks of unionized Federal workers are true heroes who have 
served their Nation with distinction in battle and are now contributing 
to our Nation as civilian employees and as active members of their 
community. I am

[[Page S9674]]

talking about Federal workers like Robert J. Patterson, who was awarded 
the Purple Heart medal and the Bronze Star and many other honors for 
his service in Vietnam. He was ambushed and shot in the legs, the 
stomach and the shoulder while on patrol in Vietnam, but he still 
managed to call for backup and save the lives of many other members of 
his squad. For nearly 20 years now, Mr. Patterson has worked as a 
civilian employee for the Federal Government, and he now serves as Vice 
Commander of his local VFW post and is active with the Boy Scouts and 
as a mentor for troubled youth.
  Dedicated Federal workers like Mr. Patterson take pride in their 
work, love their country, and have served it with distinction for 
decades. Nearly half a million Federal workers are veterans of our 
Nation's armed services. Veterans are represented at twice the rate in 
the Federal workforce as in the private sector. Disabled veterans, 
those who have paid a great price for serving this Nation, are five 
times more likely to work in the Federal Government as the private 
sector.
  On September 11, unionized Federal workers were on the scene and 
played critical roles at both the World Trade Center and the Pentagon 
as they worked round-the-clock to make our homeland secure. Denise 
Dukes, of the Federal Emergency Management Agency, worked a 24-hour 
shift in Washington on September 11 to ensure that food and water was 
reaching the rescue personnel at Ground Zero. Afterwards, she left her 
two children to go to New York and coordinate the response and recovery 
effort on the ground. As Ms. Dukes explains of her fellow Federal 
workers: ``We were proud and eager to serve our fellow Americans, and 
we would never allow anything to stand in the way of that mission.''
  Michael Brescio, who works for the Environmental Protection Agency's 
Response Team, got tens of thousands of urgently needed respirators to 
the rescue workers at Ground Zero immediately after the attack. Far 
away in Kodiak, AK, Mark Andrew Jamison went on high security alert in 
order to protect our Nation's coastline. Mr. Jamison, a veteran of our 
Nation's armed services who was entrusted with a top secret security 
clearance, loves his job because, as he put it: ``Above all . . . I'm a 
patriot like the hundreds of thousands of other Federal employees who 
keep our country secure and safe day-in and day-out.''
  We must protect the rights of these dedicated Federal workers to 
remain union members and we must allow other workers in the new 
department to exercise their fundamental right to form a union.
  Unions are critical to protecting our Nation's homeland security. 
Many Federal workers would not speak out about security lapses without 
the protection of a union because of the legitimate fear of retaliation 
by their supervisors. After September 11, an 18-year veteran of the 
U.S. Border Patrol named Mark Hall bravely spoke out about the 
vulnerability of our Northern border after INS management ignored this 
concern. Mr. Hall was threatened with being fired by the INS and faced 
a 90-day suspension without pay for speaking out to protect the 
American public.
  The actions of Mr. Hall helped to make our borders safer. Congress 
subsequently acted to triple the border patrol personnel on the 
Northern border. Union membership was critical to Mr. Hall's ability to 
speak out in the first place. As he explains, he ``would never have 
spoken out if I hadn't had my union behind me because whistleblower 
protections alone would not have been enough.'' Federal workers who are 
denied union rights will be far less likely to speak out and protect 
the public in the future for fear of unjust retaliation. Denying 
Federal workers fundamental rights will undermine our Nation's homeland 
security at a time when we can ill afford it.
  The President now has the executive authority to exclude workers 
engaged in intelligence work or particularly sensitive investigative 
work from basic collective bargaining. Past presidents have used this 
authority sparingly, out of respect for government workers--even in 
times of war. They have barred collective bargaining only in highly 
specialized and sensitive positions, such as U.S. Army Intelligence, 
Naval Intelligence, Naval Special Warfare Development Group and the Air 
Force Office of Special Investigations.
  This administration has already demonstrated its intention to go far 
beyond every past administration in its use of this authority. Earlier 
this year, this Administration stripped clerical and other workers in 
the Department of Justice and the U.S. Attorney's office of their long-
held union membership. After decades of dedicated service to this 
Nation as union members, secretaries in the civil division of the U.S. 
Attorney's office were excluded from collective bargaining. These 
secretaries were not involved in national security; they were 
processing claims by people injured on government property and others 
suing over their denial of benefits. Nonetheless, this administration 
chose to deny these dedicated workers their fundamental rights.

  We all know that this administration is not a champion of worker 
rights. They do not support a much-needed extension of unemployment 
insurance benefits. They oppose an increase in the minimum wage for the 
millions of Americans who work hard but still don't make enough to stay 
above the poverty line. This administration opposes ergonomic 
protections that would keep millions of workers from suffering 
debilitating injuries while at work. Immediately after taking office, 
this administration overturned rules requiring Federal contractors to 
obey our Nation's labor laws and undermined protections for Federal 
workers. But how far is this anti-worker agenda going to go?
  We have witnessed the bravery of these workers, their dedication to 
their country, their military service, their contributions to their 
communities. Yet, this administration displays a contempt for workers 
and particularly for the Federal workers who serve with dedication 
every day to keep our Nation safe.
  These unionized contract workers maintain the highest security 
clearances and do extensive work for the Department of Defense. Under 
the administration's proposal, we could well see Federal workers 
working alongside contractors with the federal workers being denied the 
same fundamental rights and protections that the contractors continue 
to hold.
  These are the very rights held by the brave firefighters and police 
in New York City who paid the ultimate price to protect others. They 
are the rights that allowed those courageous border patrol officers to 
speak out and improve homeland security. It is essential that any 
reorganization respect and protect the rights of these, and thousands 
of other hardworking Federal employees, whose work is so vital to the 
new Department's success and the Nation's security. Denying basic 
rights to those who strive and sacrifice to make us safer will not 
protect homeland security.
  Some on the other side of the aisle claim that union membership is 
inconsistent with service to our country. For example, Senator Gramm 
claims that union workers kept Logan Airport's luggage inspection area 
from being renovated by the Customs Service. He claims that the 
renovation had to be negotiated with the union as part of a collective 
bargaining agreement.
  This is just one example of the many distortions being offered on the 
other side by those who want to deny dedicated Federal workers their 
fundamental rights. In fact, the collective bargaining agreement of 
those dedicated Customs workers did not prevent the Customs Service 
from renovating the terminal. The union did not have the right to 
bargain over whether any renovation could take place. The agreement 
between these workers and the Customs service simply provided that the 
workers should be notified of the change and be able to discuss the 
impact of the particular implementation of the change. Since the 
workers were not notified, the new construction was poorly done. It 
left the Customs inspectors with an obstructed view, making it much 
harder for them to do their job well. The result was that the rate of 
Customs seizures subsequently went down at the airport.
  This case is a perfect example of how ignoring the front-line workers 
who protect America day in and day out will not make us safer. These 
workers want to do the best job possible each and every day. For that 
reason, they challenged the Customs service for failing to properly 
notify and consult the

[[Page S9675]]

workers and won the case before the Federal Labor Relations Authority.
  The real test of our core values come not during easy times but 
during times of crisis. We must stand up for the right of free 
association and the basic protections for these dedicated Federal 
workers. This is the real test of who we are as a nation. By being true 
to the values that make America great, we honor the sacrifices of 
America's veterans even as we protect the security of our homeland.
  Mr. LIEBERMAN. Madam President, we have now entered the sixth week in 
which the Senate has been considering legislation to create a 
Department of Homeland Security which all of us, most all of us, agree 
is urgently necessary because the current disorganization in the 
Federal homeland security apparatus is dangerous. This is the sixth 
week, not all day every day, but parts of 6 weeks, beginning today.
  Second, we are about to have the fifth opportunity to invoke cloture 
on this bill, to stop the debate in deference to the urgent national 
security interests in adopting this legislation.
  I fear the majority of my colleagues are on automatic pilot in which 
they are, once again, for reasons I consider to be peripheral, 
marginal, and unknowing, insensitive to the fact that the Senator from 
Texas, Mr. Gramm, and I and everybody else have acknowledged that on 
more than 90 percent of this bill, we all agree. So we are prohibiting 
action on a matter of urgent national security importance because of a 
small disagreement.
  There is a lot of interest in it. It means a lot to Members on both 
sides. Why not follow the leadership and independence of the Senator 
from Pennsylvania who has just said: My Republican colleague, this is 
too urgent a matter to delay any longer. I will vote for cloture.
  There is nothing like cloture and the imminence of a vote on the 
underlying bill to force the kind of compromise that we need to have in 
the interest of national security and that we are so close to having.
  Up until this time, largely through the good work of Senators Ben 
Nelson, John Breaux, Lincoln Chafee, encouraged by a lot of us, there 
has been a show of flexibility with regard to the protections for 
homeland security workers and the President's desire for executive 
authority, particularly in cases of national emergency, that Federal 
employees and those who are concerned about their rights in the Chamber 
have moved.
  In fact, the Nelson-Chafee-Breaux compromise moves back from the 
protections for homeland security workers our bipartisan committee bill 
provided.
  I supported those compromises, and the Federal employee associations, 
workers groups, unions also supported them because they know how urgent 
it is to adopt a homeland security bill.
  The White House regrettably has moved hardly at all. The Senator from 
Texas who led the debate on the other side has moved hardly at all. 
That is why we are at this impasse.
  Mr. DURBIN. If the Senator will yield, I want to point out how hard 
the Senator has worked on this, even before the President announced his 
commitment to a Department of Homeland Security. The Senator worked 
through the Governmental Affairs Committee on a bill. There were long 
hearings and markups, and they brought it to the floor, and now for 6 
weeks we have been on it. This is the fifth time we are going to try to 
bring debate to a close and a final vote.
  I say to my colleague from Connecticut, if the Senate Republicans 
reject this effort to end the debate, I frankly think we ought to 
harken back to the Cub fans back in Chicago, who said: It is time to 
wait until next year.
  Mr. LIEBERMAN. I thank my friend from Illinois for his kind comments. 
I hate to say it because, by nature, I am an optimistic and trusting 
person. As we all know, the clock is ticking and the Senate is going to 
move to debate on a resolution concerning possible military action in 
Iraq. That means this will go back to the calendar. Will it ever 
emerge? I don't know. I would hate to think that will happen on a 
matter of such critical national security interest. This is the 
protection of the lives and safety of the American people we are 
discussing.
  The evidence grows that the disorganization of the Federal 
bureaucracy contributed to the vulnerability that the terrorists took 
advantage of on September 11. As I say, I am a trusting person. So I 
keep asking myself, why won't the White House negotiate on these 
matters? I have been reading and listening with alarm to some of the 
things being said, and they trouble me because I worry now that we are 
being stopped from achieving an agreement on a matter that we agree 95 
percent on, for reasons that have something to do with the election.
  Last week on this floor, Senator Harry Reid of Nevada introduced into 
the Record an e-mail sent apparently to almost 2 million people on the 
Republican National Committee mailing list that said the Senate is more 
interested in special interests in Washington and not in the security 
of the American people, and we will not accept a Homeland Security 
Department that doesn't allow this President and--et cetera, et cetera, 
and then quoting President Bush. It also says the bipartisan approach 
is stalled in the Senate because some Democrats chose to put special 
interests and Federal Government employees ahead of the American 
people. That is untrue.
  President Bush altered his rhetoric at the end of last week after the 
eruption over that language and toned it down a bit--but still kept it 
in a political context. In Flagstaff, AZ, last week, reading from the 
Washington Post of September 28, the day before, the reporter Edward 
Walsh says:

       The President today portrayed his differences with the 
     Senate over the creation of a Department of Homeland Security 
     as a struggle between common sense and business as usual, and 
     he urged the election of Republicans to help him implement 
     his idea.

  Mort Kondracke reports yesterday Roll Call a conversation with our 
colleague, the other Senator from Tennessee, Mr. Frist, chair of the 
National Republican Senate Committee:

       In an interview, Bill Frist, chairman of the NRSC told me 
     he has no intention of turning Iraq into a campaign issue, 
     but every intention of doing so with homeland security.

  Of course, it is the right of the Republican Party and the President 
to make an election issue out of anything they want to make an election 
issue out of, but this is a matter on which we should not be engaged in 
politics. This is a matter on which we should be reasoning together to 
get over the small differences that remain on this question, to reach 
common ground and get this done. The Gramm-Miller substitute leaves out 
some very critical parts that our committee put in. Senator Durbin has 
a part on information technology. Of course we should support it. 
Senators Carnahan and Collins put in an amendment to create a COPS-like 
program for firefighters. There should be broad, bipartisan agreement 
on that. I could go on. Senator Carper has a provision relating to the 
safety and security of Amtrak facilities. None of those are in Gramm-
Miller. If we can reach agreement on this question of protection for 
Federal Homeland Security workers and protecting also the President's 
prerogatives regarding national security, I would guess that the Gramm-
Miller substitute, as amended by Nelson-Chafee-Breaux, would have a 
real head of steam behind it and would probably find its way rapidly to 
the conference committee.

  Let me make this appeal to my colleagues on the other side. We are 
not a unicameral legislature. The White House seems to be insisting 
that we negotiate to the final point here in the Senate bill, and with 
that stubborn intransigence they are blocking us from achieving all the 
rest that we want to achieve in terms of homeland security. We can pass 
the bill here. It then goes to conference. The process continues.
  So let's not have it reach a dead end here, which it is rapidly 
approaching, as we move on to the Iraq resolution and the probability 
of adjourning--or at least recessing--quite soon thereafter. I appeal 
to my colleagues--mostly Republicans, but some of those Democrats who 
voted against cloture the first time on Gramm-Miller--to listen to the 
words of the Senator from Pennsylvania. The best way to get this moving 
is to invoke cloture, force the compromises we need. Let's have the 
meetings that Senator Thompson, Senator Specter and I have talked about 
with Senators Nelson, Breaux, Chafee, and anybody else who wants to 
come. This is an eminently solvable

[[Page S9676]]

dispute, if we have the will to do it. Then we can go on to protect the 
security of our people and dispatch our responsibility under the 
Constitution.
  How much time do I have remaining?
  The PRESIDING OFFICER. Two minutes.
  Mr. LIEBERMAN. I yield that time to the Senator from Louisiana, 
unless the Senator from Tennessee wishes to go forward.
  Mr. THOMPSON. No.
  The PRESIDING OFFICER. The Senator from Louisiana is recognized.
  Mr. BREAUX. Mr. President, I think the Senator is right on target. We 
have two differences of opinion about how to approach this matter, and 
there is not a dime's worth of difference between the two. The easiest 
way to figure out how to reach a legitimate compromise is to vote 
cloture, and then we can negotiate what is the proper approach to this 
legislation. If you read both offerings in this particular area, we 
will give the President essentially the authority to take away 
collective bargaining rights of American workers if they are related to 
national security or threats of national security. We also basically 
give him the authority to make management changes. I will address this 
quickly.
  If you are going to make management changes, do you want the people 
whose jobs are being changed to be involved in that decision or do you 
want to take away their collective bargaining rights, one, and tell 
them arbitrarily what they are going to have to do? What type of a 
worker are you going to have if you take that away and then not even 
let them talk about what their duties are going to be. You are going to 
have a very reluctant workforce, which is not in the interest of this 
country from a homeland security standpoint. We have suggested models 
after the IRS, which say let them come in and negotiate, talk, and find 
out what their duties are going to be. If you cannot agree, we 
suggested turning it over to a Federal board that the President 
appoints to resolve the conflict and let them make the decision. At 
least the workers will have an opportunity to be heard. I don't think 
that is asking too much when you have taken away all of their 
collective bargaining rights.
  This thing can be resolved. We are going to continue our meetings 
this afternoon. We have taken 3, 4 weeks already and have not made a 
lot of headway. Perhaps we ought to appoint a Federal negotiating board 
to handle the Senate, and maybe we can resolve it that way because, 
obviously, right now we are not making progress. But we are going to 
continue our efforts.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee is recognized.
  Mr. THOMPSON. Madam President, the issue here with regard to this 
cloture motion is whether or not the President of the United States is 
entitled to an up-or-down vote on his proposal to make this country 
more safe. I repeat. The issue--and the only issue--on this cloture 
vote is whether or not the President of the United States, at this time 
in our history, is entitled to an up-or-down vote on his proposal to 
make this country safer. I think the answer to that is yes and the 
answer to cloture should therefore be no.
  If there is not a dime's worth of difference between these proposals, 
I would like to think the President in this time in our history would 
be given the benefit of the doubt on these issues, which our friends on 
the other side say are really insignificant.
  The Senator from Connecticut says the evidence mounts as to 
shortcomings of the Federal bureaucracy and that it contributed to the 
problem we had on September 11. I could not agree more. My only 
question is: Then why are we not allowed to make some changes that 
might improve the situation?
  Gramm-Miller does provide for consultation. The implication has just 
been made that Gramm-Miller does not provide for consultation. Why 
shouldn't employees be brought in and enter into a dialog? It provides 
for that.
  However, the Nelson-Chafee-Breaux so-called compromise still puts 
additional hurdles in the path of this President that other Presidents 
have not had. For some reason, at this time, with regard to this 
Department of Homeland Security, we are putting forward additional 
hurdles and additional determinations this President must make that 
other Presidents have not had to make.
  The Nelson-Chafee-Breaux compromise takes the issue of labor-
management and the issue of appeals off the table altogether and says: 
You shall make no changes, regardless of the myriad indications we have 
had where we have deficiencies in our system with regard to these 
issues.
  There is no reason why these issues should take years and years to 
resolve. There is no reason why we should fiddle while Rome is burning. 
Surely we can do better, but this so-called compromise takes those 
issues off the table and out of the power to make any kind of 
adjustments. I suggest that is not a reasonable compromise. I suggest 
the President is entitled to an up-or-down vote.
  I agree with my good friend from Connecticut; we are in the last 
stages of this discussion. If we do not resolve this matter within the 
next day or so, there will be no homeland security bill this year. That 
is a tragedy for this country. We apparently divided sides and decided 
who benefits. That is the fact, and, therefore, I urge no on the 
cloture vote.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, pursuant to rule 
XXII, the Chair lays before the Senate the pending cloture motion, 
which the clerk will state.
  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:
         Joseph Lieberman, Max Baucus, Ben Nelson of Nebraska, 
           Dianne Feinstein, Tim Johnson, Patrick Leahy, Jeff 
           Bingaman, Jack Reed, Hillary Rodham Clinton, Jim 
           Jeffords, Debbie Stabenow, Daniel K. Akaka, Harry Reid, 
           Maria Cantwell, Byron L. Dorgan, Herb Kohl.

  By unanimous consent, the mandatory quorum call under the rule is 
waived.
  The question is, Is it the sense of the Senate that debate on the 
Gramm-Miller amendment No. 4738 to H.R. 5005, an act to establish the 
Department of Homeland Security, and for other purposes, shall be 
brought to a close? The yeas and nays are required under the rule. The 
clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from New Jersey (Mr. Corzine) 
and the Senator from New Jersey (Mr. Torricelli) are necessarily 
absent.
  I further announce that, if present and voting, the Senator from New 
Jersey (Mr. Corzine) would vote ``aye''.
  Mr. NICKLES. I announce that the Senator from Colorado (Mr. Allard) 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 45, nays 52, as follows:

                      [Rollcall Vote No. 228 Leg.]

                                YEAS--45

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Breaux
     Cantwell
     Carnahan
     Carper
     Chafee
     Cleland
     Clinton
     Conrad
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feinstein
     Graham
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kerry
     Kohl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Reed
     Reid
     Rockefeller
     Schumer
     Specter
     Stabenow
     Wellstone
     Wyden

                                NAYS--52

     Allen
     Bennett
     Bond
     Boxer
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cochran
     Collins
     Craig
     Crapo
     DeWine
     Domenici
     Ensign
     Enzi
     Feingold
     Fitzgerald
     Frist
     Gramm
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Kennedy
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nickles
     Roberts
     Santorum
     Sarbanes
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                             NOT VOTING--3

     Allard
     Corzine
     Torricelli
  The PRESIDING OFFICER. On this vote, the yeas are 45, the nays are 
52.

[[Page S9677]]

Three-fifths of the Senators duly chosen and sworn not having voted in 
the affirmative, the motion is rejected.

                          ____________________