[Congressional Record Volume 148, Number 149 (Monday, November 18, 2002)]
[Senate]
[Pages S11240-S11242]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           HOMELAND SECURITY

  Mr. GRAMM. Mr. President, I wish to talk for just a moment about 
where we are on the homeland security bill. I wish to talk about the 
amendment on which we will be voting tomorrow morning because I think 
it is important for people to look at the issue, in terms of 
understanding the full picture, at least given each of our abilities to 
see the full picture.

[[Page S11241]]

  We now have debated homeland security, I think, for seven or even 
eight weeks. It is obviously an important issue. When you are creating 
a new Department that will have 170,000 members--the largest 
reorganization of Government since the creation of the Defense 
Department--I think having a pretty extended debate is justified.
  I say to people who are opposed to the bill that I hope they will 
recognize that the debate has had an effect. The distinguished Senator 
from West Virginia, who has been perhaps the most outspoken opponent of 
the bill, I think would agree that a major problem with the bill has 
been changed--that being, it would have transferred to the President a 
substantial ability to change the appropriation levels set by Congress, 
and as such would have redistributed power from the legislative branch 
to the executive branch.
  Mr. BYRD. Mr. President, will the Senator yield? I ask that 2 minutes 
of my inquiry not be charged against his 10.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. Mr. President, may I say right at that point that the 
Senator is correct. That was the major constitutional flaw. That was a 
major constitutional flaw. It dealt with the power over the purse which 
under the Constitution is vested here in Congress. Senator Stevens, I 
would have to say, was himself the foremost proponent of a change, 
backed by some degree of constitutionality. He is the major proponent 
on that side of the aisle of our veering away from that precipice and 
bringing us back to leaving control in the hands of the appropriations 
committees, and in the hands of Congress in large part.
  Second, I would say one of the foremost proponents of recognizing 
that constitutional flaw was the distinguished Senator from Texas, Mr. 
Gramm. I am convinced in my own mind--although I was not a little fly 
on the wall down at the White House listening in--that the Senator from 
Texas was a major, major proponent of bringing us back to our senses--
or at least the administration back to its senses--with respect to that 
constitutional flaw. I have to believe in my own mind that he argued 
with them to that effect.
  Listen, that is at least the one--that is the one in the Senator's 
mind, I would guess--unassailable point that the Senators from West 
Virginia and the Senator from Alaska make; that is, with respect to the 
power of the purse. You had better back off.
  Those are my own words. But I have reason to believe the Senator from 
Texas is responsible in great measure for what occurred down at the 
White House with respect to its backing off on that point.
  I thank the Senator.
  If I am correct, or if I have failed and my guesswork is incorrect, 
please say so.
  I thank the Senator for yielding.
  Mr. GRAMM. Mr. President, the point I want to make--and I think it is 
a specific lesson of how government works--is that those who have 
followed this long debate, who have listened to the Senator from West 
Virginia, and know he has been on the losing side of vote after vote 
may say: What effect does he have?
  He has had a profound effect. Even though he is not a supporter of 
the bill today and won't be at the end of the day--and I have been in a 
similar position on many issues, as the distinguished Senator from West 
Virginia knows--his major concern about the bill has been resolved. The 
debate and the clarity of the argument we have had on the issue of the 
power of the purse has had a profound effect on the bill. So you can be 
on the losing side of the votes and yet have a profound effect on the 
end product.
  That is the point I wanted to make. The Senator is right. I thought 
it was a change that should be made, and it is a change that has been 
made. I think it represents an improvement.
  I want to talk very briefly about the bill. I think I have a copy of 
it right here. Let me remind people what happened. I think everybody 
will understand the dilemma we were in.
  We adjourned for the election with this issue unfinished. The 
President came back from the election with what I believe and what I 
think the public perceives to be a strong mandate that this is the 
important issue that should be dealt with.
  The President could have said: Well, I will wait until the new 
Congress when my party will be in control, and I will write this bill 
exactly like I want to write it. He could have done that. He did not do 
that. And I believe that is wise. Instead, he sat down with three 
members of the opposition party and negotiated out additional 
clarifications in the bill. These clarifications are not profound, but 
they are important.
  As this reorganization process goes forward, and as 170,000 people 
are moved into one agency, these changes the President agreed to will 
assure that these workers and their representatives will have an 
opportunity to give input. They will have a due process procedure, but 
in the end the reorganization will go forward. The President will have 
the right to exercise the same national security waiver that every 
President--first through executive order, and from the Carter 
administration forward under law--since John Kennedy has been able to 
exercise.
  The next thing we had to do to get into a position to pass this bill 
is make clear what the final version of the bill would look like. We 
didn't want to end up with a week or two weeks of a conference with the 
House during this session where Congress is meeting after the 
election--sometimes referred to as a lame duck session. Many Democrats 
who are supportive of the bill wanted to be sure in negotiating with 
the President and in negotiating with the authors of the bill that they 
wouldn't end up having to negotiate again with Republican leaders in 
the House. Over the weekend--not this weekend, but the weekend before--
we sat down with the House leaders on this issue, and we negotiated out 
a final product.
  I would say of this 484 page bill, 98 percent of it is the Gramm-
Miller substitute which we debated for weeks. There were several 
changes made that have been much discussed. I believe there is a more 
efficient way of characterizing those changes than the way they have 
been characterized. I want to try to explain them.
  Let me just first start by saying when the House writes a bill and 
the Senate writes a bill, there are often differences in the bill, and 
there is always give and take. Some have talked about extraneous 
material in the bill. I would have to say that in my 24 years in 
Congress, there are almost always issues dealt with in a bill that some 
people view as extraneous. I would say there are relatively few in this 
bill. But let me talk about the issues that are subject to the 
amendment Senator Lieberman has offered. This amendment strikes 
provisions in the compromise--I think there are seven of them. I don't 
have my notes with me, but I remember them well enough to talk about 
them.
  Three of these provisions have to do with liability. Let me remind my 
colleagues that since the Civil War, we have had provisions of law that 
have dealt with liability for people who were producing new products 
for war efforts. One of the ways of encouraging people to be innovative 
and one of the ways to get products from the drawing board to the 
battlefield quickly is to protect people from liability.
  There was a provision in the original Senate amendment, the Gramm-
Miller amendment, that the Senators from Virginia were responsible for. 
That was a provision whereby the Federal Government would indemnify 
manufacturers of products that would be used in the war on terrorism, 
so that if a liability issue arose, the Federal Government would step 
in and basically cover the liability. I would have to say that was not 
my preferred option, but in putting the amendment together we accepted 
it.
  The House had another approach, which was to basically limit 
liability, require that lawsuits occur in Federal court, and set up a 
procedure to deal with liability that arose in these issues.
  In putting together the compromise with the House, we took something 
between the two that did not have the liability limits the House 
adopted but was a movement toward reducing runaway liability and 
removing the taxpayer from the line of fire.
  That accounts for three of the criticisms made. I want to address the 
one that is most discussed, and that is the one that has to do with 
mercury-based injections and smallpox vaccine.

[[Page S11242]]

  Under the bill, as it is now written, we are treating smallpox 
vaccine as an instrument of the war on terrorism. Before, we had dealt 
with it as a response to a disease. We had a liability fund for 
vaccines in the past, but now that we have eradicated smallpox, the 
only fear we have of it is the reintroduction by terrorist elements. So 
we bring smallpox vaccine under this liability limit.
  Those of my age will remember, if you get a smallpox shot, you get a 
skin reaction which produces a permanent scar. I say to my colleagues 
that this is pretty terrorism specific because no one would take a 
smallpox vaccination except for the terrorist threat because there are 
risks involved. Some small percentage of people have very negative 
reactions, some people die, and almost everybody has a scar from 
smallpox.
  This bill would require people who sue to enter into a negotiation 
with the Justice Department before they file suit, and to negotiate the 
possibility of a payment out of an indemnity fund.
  Some of our colleagues have said: Why did you make it retroactive? 
Wasn't that some kind of benefit to some vaccine producer? I remind my 
colleagues that nobody is taking smallpox vaccine now, nor would 
anybody take it unless there was an imminent threat. But we do have 
some of the vaccine stockpiled.
  Why would you make it retroactive to cover that stockpile that has 
already been produced? The reason you do that is, if you give a 
protection against liability for all vaccine produced in the future but 
not for what we have stockpiled, the manufacturers will destroy the 
stockpile and produce more vaccine. And if we had a sudden threat, we 
would not have the stockpile.
  So if this were a vaccine that was routinely taken, then I think the 
criticism would be well founded. But I think it is a total 
mischaracterization to say this is some kind of pharmaceutical bailout 
when it is targeted toward smallpox vaccine and the stockpile now has 
relevance only in terms of terrorism.
  In terms of manufactured products to use in the war on terrorism, I 
simply say, in every major conflict in modern history, we have had some 
liability limits for the people producing things for wartime use.
  The fourth provision that would be stricken has to do with the 
Wellstone amendment. Senator Wellstone offered an amendment to the bill 
that said, if you had a company that had ever been domiciled in the 
United States, and it was now domiciled anywhere else in the world, 
that company could not participate in contracts for the war on 
terrorism. In the bill that is before us, a couple of provisions were 
added to the Wellstone amendment that allows the President some 
flexibility in cases where the application of the Wellstone amendment 
would actually cost American jobs, where it might leave only a sole 
bidder, or where the absence of competition could drive up costs.

  You might say, how could it cost America jobs? Well, let's say you 
have a company that was once based in America and still has very heavy 
presence in America but has its headquarters in France. Many companies 
are now international companies and where their home office is has 
ceased to have a lot of relevance, in my mind. In any case, the product 
made by the French-headquartered company might actually be produced in 
America. We could not buy it because the company is now domiciled in 
France but once was domiciled in America--maybe in 1812--but yet we 
could buy a product that was produced in another country by a company 
that never had an American presence.
  There might be national security reasons or job reasons to have a 
waiver. The amendment before us would strike that waiver. I think it is 
a good waiver. I think it is a good government provision. And I think 
it is one we should have.
  Another amendment has to do with advisory committees. I couldn't care 
less about advisory committees. I think sometimes they serve a 
productive purpose. I think in most cases they do not. But I think we 
are foolish to be striking advisory committees when the House has 
adjourned and may not come back to agree to the change if we make it. I 
do not think we ought to jeopardize this bill.
  Finally, there is a provision that establishes a broad authorization 
outline. No funds are appropriated for participating in the management 
of research. There is a definition that is written into the law that, 
as I understand it, would cover roughly 12 major research universities.
  I just ask my colleagues to look at these overall seven provisions, 
and to ask themselves a question: Would the bill be better off without 
all seven, because they are all stricken in one amendment? I think the 
answer is no. I think there is a logical justification for the 
amendments in general. And I urge my colleagues to get the whole story 
before they cast their vote.
  Finally--and I think this is of equal importance--this is an 
important bill. We are getting toward the end. This has been progress 
that has been hard coming. And I think we take a risk, one that we 
should not take, by making these changes. I do not think they are good 
changes.
  I think, overall, we are better off with these seven provisions in 
the bill than we are without them. I think, overall, they are 
defensible. Any changes you get in bringing the two Houses together in 
negotiation often are subject to criticism, but I think these are 
defensible.
  I think we would be taking an unnecessary risk by changing the bill. 
I hope we will not do it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.

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