[Congressional Record Volume 148, Number 148 (Friday, November 15, 2002)]
[Senate]
[Pages S11166-S11169]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           HOMELAND SECURITY

  Mr. GRAMM. Mr. President, we have drifted into a debate which I think 
we should be engaged in now, and that is a debate on whether we should 
vote for cloture on the pending amendment and, therefore, cloture to 
proceed with homeland security.
  At this late hour, I do not think anybody is going to be convinced in 
terms of whether this is a good thing or a bad thing as it is written. 
I think people have pretty well reached that decision. I simply would 
like to make a couple of points that I think are important in making 
the decision.
  I begin by saying I do not think anybody set out with a goal of 
homeland security becoming an issue that sort of divided us along party 
lines. I do not think anybody had that intention, but the net result is 
it happened. We now are at a point where we have one last opportunity 
to do this bill.
  I make two arguments for doing it that I think are strong, and I make 
them not to the people who are for it--they are already convinced and I 
hope they will not listen because I do not want to change their mind. I 
want to make my argument to the people who are on the other side of the 
issue.
  The first argument is that we have had an election. It is very easy 
in elections to read into them what you want

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to read into them. Elections are sort of like the Bible in the sense 
that everybody finds something in them that they want to find and they 
neglect the things they do not want to see. I do think one of the 
themes of the election was a desperate desire of the American people to 
see a homeland security bill passed.
  Mr. BYRD. Will the Senator yield?
  Mr. GRAMM. Whether it was this one or another one, I think that is 
open to interpretation, but I think they wanted to see it passed.
  I certainly will yield.
  Mr. BYRD. Just one quick observation. I hope the Senator will delete 
from his remarks which will appear in the Record any reference to the 
Holy Bible in the context that he was speaking. I do not think that has 
any place in this argument. I say that lovingly and fondly.
  Mr. GRAMM. Well, I appreciate that. Let me remove ``the Bible'' and 
put ``teaching'' or ``holy script.''
  What we tend to do with revered documents--whether it is the 
Constitution, the Koran, or some other holy teaching--is we take from 
it what we like and we tend to leave out what we do not like, and that 
was the point I was making. I thank my colleague for making the point.
  The point I want to make beyond that is, I do believe an objective 
reading of the election shows a desire, an almost desperation of the 
American people, to see action taken on a homeland security bill, 
though I am not claiming necessarily this bill.
  The second argument I hope opponents of the bill will listen to is, 
this bill does represent a compromise. The President would have not 
been subject to much criticism if, after the election, he had said: 
Look, I have already compromised too much on this issue. Given the 
results of the election and the mandate, I am going to get exactly what 
I want, and so as a result I am going to stop negotiating. We are going 
to go home, come back in January, and do it exactly my way.
  He could have done that, and I do not think people could have been 
critical of him. But the President did not do that. Even though he 
perceived, and many others perceived, that he got a mandate in the 
election on this issue, he came back and compromised again. He 
compromised again by not giving public employee labor unions the 
ability to veto a homeland security reorganization, but by 
strengthening their ability to have input into it. That represented an 
additional compromise.
  The bill before us is not a bill that all of our colleagues support. 
I know our dear colleague from West Virginia is very sincere in his 
opposition, but I say this: The first major issue that the 
distinguished Senator from West Virginia raised, in opposition to the 
original bill, was that it interfered with Congress's power of the 
purse by giving the President power--and the Senator and others argued 
arbitrary power--to rewrite appropriation bills.

  I argue to our colleagues that whether they support or oppose this 
bill, that concern was responded to, and the bill before us sets an 
amount that the President has flexibility in, but it gives him no 
power, without reprogramming--which means the approval of the chairman 
and the ranking member--to move money around.
  I simply say to my colleagues this is a compromise, even though it 
may not be one that the Senator finds supportable. But I ask the 
following question: Does the Senator believe the bill that will be 
adopted in the new Congress will be closer to what he wants than this 
bill is? Does he have a guarantee that in the new Congress the concerns 
that were dealt with here will be dealt with?
  I guess really what I am saying--and not doing a very effective job 
in saying it--is the following: I ask my colleagues who oppose the bill 
to look at it in its totality, to look at the compromises that are in 
it, protecting our right to the purse, giving public employees an 
opportunity to have an input but not a veto. We all know the bill is 
going to pass now or it is going to pass later, and so will the bill 
passed in the new Congress be more to the liking of my colleagues who 
would vote no today than this bill? The answer is probably no.
  Finally, the one thing we all agree on is, in creating this new 
department - whether it is a good idea or a bad one--if we do not do it 
now and do it 3 months later, we have lost the 3 months. So the bill we 
would do in 3 months might very well be less to the liking of the 
people who oppose it and we will be doing it 3 months later.
  I think if I were on the other side, what I would probably conclude 
is I am not for the bill and I am going to vote against it, but doing 
it in the new Congress with the makeup of the new Congress will 
probably produce a bill that I like less and that the victories that 
have been won in it--and there have been some; this is a compromise--
would be lost, could be changed, and waiting 3 months to get a bill 
that might be worse from my point of view is not a good decision.
  Mr. BYRD. Mr. President, will the Senator yield?
  Mr. GRAMM. I am happy to yield.
  Mr. BYRD. The Senator is absolutely right in what he says with 
reference to the appropriations process. That was a major weakness of 
the original bill, and the Senator from Texas knows that. He had a lot 
to do with a compromise that developed with respect to the 
appropriations process--he and Senator Stevens, above all, on that side 
of the aisle. That part has been vastly improved. So I have not had 
much to say in my expressions of opposition to the way we are 
proceeding. I have had little to say except to compliment Senator 
Stevens, and I will compliment the distinguished Senator from Texas 
because he has privately told me upon occasion that that was almost an 
unassailable position I was taking with reference to that 
appropriations process within the constitutional system.
  This measure has gone a long way. It has not gone all the way, but it 
has gone a long way. I have had very little to say about that.
  Finally, let me say, would we have a better bill 3 months later?
  Mr. GRAMM. Mr. President, I ask for an additional 4 minutes if the 
Senator is going to speak. I want to conclude with one remark.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. Mr. President, with reference to the question, will the 
bill be better 3 months from now? I say there is an excellent chance 
the bill would be better, that the failings of this compromise as 
brought to light by the press and by Members, through the help of their 
staffs, the things that they are complaining about in this bill, yes, 
we would have time to remove those after debate and we would come out 
with a better bill. I think always that more debate results in a better 
end product.
  As far as I am concerned, the answer is, yes, 3 months from now we 
could have a better bill. We would have more time. Our staff would have 
more time. The press would have more time. I am just pleading for us 
not to invoke cloture today so we can have at least the weekend to look 
at this bill.
  I thank the distinguished Senator.
  Mr. SARBANES. Will the Senator yield?
  Mr. GRAMM. I would be happy to yield, but I do want to make sure I 
have 3 minutes at the end to sum up and we are 5 minutes from the vote.
  I am happy to yield.
  Mr. SARBANES. One of the things we could do if we had more time is 
get the special interest provisions out of this bill. As I understand 
it, and with appropriate respect to the Senator from Texas, those 
provisions were never in the alternatives being offered in the Senate 
as we considered homeland security.
  In fact, I may or may not agree with your provisions on homeland 
security and think it should be done differently, but at least it was 
homeland security. Now we discover and are discovering every moment 
there are other special interest provisions that are in this 
legislation. I argue we should not invoke cloture, if for no other 
reason than in order to address those special interest provisions.
  Mr. GRAMM. Mr. President, let me address that and get back to the 
Senator's point, which is the relevant point.
  First of all, this bill results from three things: One is the old 
Gramm-Miller substitute with which we are all familiar and we debated 
for 6 weeks. It also includes compromises that were reached with three 
Democrat Members to try to increase input that public employees have in 
the process. I am first

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to say it does not give them veto power, but it gives them a greater 
degree to be heard. The third thing it entails is a compromise with the 
House. We had to meet with Members of the House to try to bring the two 
bills together, given we are at the end of the session, so they could 
pass the bill in the House and we could pass it in the Senate.
  Are there special interest provisions in the bill? There are. But 
does anyone believe we would go to conference in February or March and 
not have special interest provisions in the bill? I am proud that my 
colleague has noted I didn't have any in the substitute we offered.
  I say the following in addressing the important point of the Senator 
from West Virginia, and then I will conclude. I believe this is a good 
amendment. I believe it is a result of 6 weeks of work. It is a 
compromise that has been made, and then an additional compromise has 
been made on top of that. I believe from my point of view we might get 
a better bill in February, but I don't believe from the point of view 
of the opponents of this bill they would get a better bill. And to the 
extent we got greater support, we would get a bill that is not as good.
  Secondly, I remind my dear colleague from West Virginia that when 
Benjamin Franklin read the Constitution, he asked himself: Is this the 
best product that we are going to get? As he knows, better than I, 
there were things in it he was doubtful of. I am not comparing this 484 
pages to what, in a secular sense, is a document that is pretty holy to 
me and the Senator from West Virginia, and that is the Constitution.
  But the point is relevant. This is a compromise. Even the Senator 
said his biggest concern has been dealt with. I say to critics, the 
fact that is the case says something about the fact that there was a 
genuine effort to compromise. I am not asking my colleagues that have 
taken a hard position to vote yes. I know that will not happen. I know 
I will not convince the Senator from West Virginia, but I hope I will 
convince him of two things.
  The first is the most important one, and that is this bill is not all 
bad and there are some good things in the bill and there has been some 
legitimate effort to compromise. Second, when we do get cloture, we are 
at a point where we need to go ahead and act and adopt the bill.
  I thank my colleague for the debate. Probably the Senator from West 
Virginia has had more impact in changing this bill than anyone else 
because of the strength of his arguments. I simply say, it is a long 
way from what he would like. I have voted on many bills here in my 18 
years in the Senate, and they were a long way from what I liked. But 
you ultimately come down to, especially in these circumstances, the 
following questions: Is it going to get any better? Might it get worse? 
Is it worth waiting 3 months to find out?

  My conclusion, and it is one I feel very strongly about, is that I 
believe it is a good bill. I don't believe it would get better with 
time, especially from the point of view of people who are concerned 
about workers' rights. And finally, waiting 3 months does not serve 
anybody's interests.
  Thomas Jefferson said good men with the same opinion are prone to 
disagree.
  Mr. BYRD. I yield the floor.
  How much time does the Senator have remaining?
  The PRESIDING OFFICER. Two minutes and nineteen seconds.
  Mr. BYRD. I hope he has 3 additional minutes.
  Mr. McCAIN. I object.
  Mr. GRAMM. I give the 2 minutes to Senator Byrd.
  Mr. BYRD. Mr. President, with reference to Benjamin Franklin, when 
the Constitutional Convention ended we are told a lady approached 
Benjamin Franklin with the question: Dr. Franklin, what have you given 
us?
  His response: A republic, Madam, if you can keep it.
  That is what is wrong with this bill. That is the problem. The third 
leg of the trilogy of reasons we have this compromise, which was 
related to us by the distinguished Senator from Texas, is that third 
leg, that compromise that he spoke of, which was entered into with the 
House so that the House could pass this measure over there virtually 
without debate, that is the leg I think we could improve with an 
additional 3 months. That is the leg which has the major flaw. That is 
the leg which has the dagger pointed to the heart of the Republic, 
which we all love. It is that leg which I think another month or 2 
months or 3 months would vastly improve, I say with all due respect.
  Mr. SARBANES. Will the Senator yield?
  Mr. GRAMM. I have the time.
  Mr. SARBANES. I say to the Senator, I think it is clear, I understand 
his point on the homeland security provisions about now or next year. 
But it seems to me clear that next year you will not have these special 
interest provisions that are in this legislation. They were not in your 
legislation. They have been put in here by the House. Some of them are 
absolutely outrageous.
  Mr. GRAMM. Let me say when Senator Miller and I wrote the substitute, 
it is true we did not have any special interest provisions in it. It is 
true that there are a few special interest provisions in this bill. But 
I would have to say--without getting into an argument with anybody on 
what may be my last words in the Senate--that more often than not when 
you are negotiating between the two bodies, you end up with some 
provisions, (a) you don't like, and (b) that have are promoted by some 
special interest. I would have to say--and I am sure my colleagues will 
remember me going through bills at midnight looking at proposed 
amendments that were going to be accepted--seldom have I seen a bill 
that had none of those. I am not going to be here in future years, so I 
guess I will read about it in the paper. But if we do not invoke 
cloture, I would be willing to bet good money, and I hope to have it to 
bet at that time, that there will be more special interest provisions 
in it 4 months from now than there are right now.
  Mr. REID. Mr. President, all time is expired on this; is that right?
  The PRESIDING OFFICER. That is right.
  Mr. REID. I advise all Senators, we heard a lot of debate this 
morning. There will be immediately an up-or-down vote on cloture on the 
Gramm-Miller substitute amendment to the Homeland Security Act. On our 
side this is opposed by Senator Byrd. It is my understanding that 
Senator Lieberman will vote in favor of the cloture motion.
  Mr. DORGAN. Mr. President, I wish to inquire of the Senator from 
Texas where this negotiation took place?
  Mr. ROBERTS. Regular order.
  The PRESIDING OFFICER. Under the previous order, the clerk will 
report.
  Mr. BYRD. Mr. President, I ask unanimous consent that the Senator 
from----
  Mr. ROBERTS. I object.
  Mr. BYRD. I know the Senator objects.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the call of the 
quorum be terminated.
  The PRESIDING OFFICER. Is there objection?
  Mr. BYRD. No, reserving the--I can't reserve the right to object. I 
object until we get a clear understanding that the Senator from North 
Dakota can have 1 minute.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. I ask that the Senator from North Dakota be recognized for 
1 minute and the Senator from Texas, Mr. Gramm, be recognized for 1 
minute.
  Mr. GRAMM. And the vote occur immediately thereafter.
  Mr. REID. The vote to occur immediately thereafter.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from North Dakota.
  Mr. DORGAN. I merely wish to inquire of the Senator from Texas: He 
indicated in the process of completing legislation, sometimes at 
midnight there is a negotiation that goes on and things happen. I am 
wondering if the Senator from Texas can tell us where the negotiation 
occurred that put in the homeland security bill the special piece for 
the pharmaceutical industry

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that shows up now, today, that says there will be special liability 
protections for the pharmaceutical industry. And the majority leader of 
the House, Mr. Armey, says: Well, I put it in, but it wasn't my idea; 
it was the White House.
  I am asking, was there a negotiation someplace, sometime, between 
some people, of which I am unaware? Because I have heard of no such 
negotiation by which that provision should have ended up in this bill.
  I inquire of the Senator from Texas where this negotiation occurred. 
Who was involved in it? Who made the decision that a special protection 
for the pharmaceutical industry that just spent $16 million in the last 
election ought to be stuck in this bill? Who was involved in it?
  The PRESIDING OFFICER. The time has expired. The Senator from Texas 
has 1 minute.
  Mr. GRAMM. I am glad the Senator picked one with which I am totally 
familiar.
  In the Senate bill, we had a provision where the Federal Government 
indemnified those manufacturers that produced items to be used in the 
war on terrorism whereby the taxpayer would pay liability that arose 
from it.
  I was never much for that provision, but I was desperately trying to 
get the votes to prevail, and so I took that provision.
  The House had a provision that limited liability, similar to what we 
did in World War II and what we have done in most major conflicts. When 
you produce an item for defense purposes, there is a limited liability. 
It seemed to me that, rather than the taxpayer bearing the burden, 
forcing these cases into Federal court and limiting liability was a 
preferable choice.
  That is where the negotiation came from. This was not a provision out 
of the clear blue sky. We had a provision, they had a provision, and we 
took less liability protection than they had. This is a good provision 
of the bill.
  Mrs. LINCOLN. Mr. President, I rise in support of cloture on the 
Homeland Security bill because our country needs a unified effort to 
defend our shores. But I want my colleagues on the other side of the 
aisle to know that I am ashamed of the tactics that you have used. And 
this Senator will not forget what you and your patrons in the 
pharmaceutical industry have done to this bill and to the American 
people in the dark of the night. It appears that the $12 million PhRMA 
donated during the last election cycle can buy more than a handful of 
House and Senate seats. It can also buy a sneak attack on people--
autistic children--who have been harmed by vaccines.
  I say to my friends across the aisle and to my friends in the 
pharmaceutical industry: sneaking this unrelated provision into 
critical legislation like Homeland Security is not the way to make good 
public policy. It is unAmerican, and something to be ashamed of.
  Why should the parents of autistic children--children who were 
injured by thimerosal in vaccines--lose some of their legal options in 
the name of Homeland Security? They too care about the security of our 
nation, but you cannot doubt their love and concern for their precious 
vulnerable children. The homeland security bill is not an appropriate 
vehicle to make this change to the vaccine injury compensation program 
on behalf of one interest group.

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