[Congressional Record Volume 150, Number 102 (Wednesday, July 21, 2004)]
[Senate]
[Pages S8528-S8532]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Omnibus Spending Bill
Mr. BYRD. Madam President, there are only 22 legislative days left in
this fiscal year. The Senate seems to be frittering away those precious
days. To date, the Senate has only passed one appropriations bill, the
Defense bill. Only four bills have been reported from the Senate
Appropriations Committee.
The House has passed nine appropriations bills, but apparently the
Senate would rather work on political messagemaking than to take care
of the Nation's vital business. So I fear, once again, that the Senate
Republican leadership is setting a course for a massive omnibus
spending bill. That is what it looks like. That is what we are going to
do, have a massive omnibus spending bill, in all likelihood.
This year, with the failure of the Senate Republican leadership to
even bring the Homeland Security bill before the Senate, the Omnibus
appropriations bill may include as many as 12 of the 13 annual
appropriations bills. That is very conceivable to ponder.
On July 8, Homeland Security Secretary Tom Ridge and FBI Director
Robert Mueller announced that another terrorist attack is likely before
the November elections, yet the Homeland Security appropriations bill,
which the committee reported 4 weeks ago, has not even been presented
to the full Senate for its consideration. What is wrong? What is wrong
with this picture? Talk about fiddling while Rome burns. The flames are
all around us.
The Senate Republican leadership is setting the stage for another one
of these massive spending bills that may be brought up in the Senate in
an unamendable form. And one shudders to think what will go on behind
closed doors. Who among the 100 Senators will be in the meetings that
produce a massive bill that appropriates over $400 billion for
veterans, education, homeland security, highways, agriculture, and the
environment? Who among the 100 Senators will be in the meetings when
decisions are made about including provisions on drug importation, gun
liability, farm bill issues, nuclear waste storage at Yucca Mountain,
overtime rules, or on the outsourcing of government services? Does
anybody know?
And, who knows what surprises, that were never debated or even
contemplated in the Senate, will find their way into such an omnibus?
What kind of interesting bugs will crawl into this big bad apple of a
bill? I cannot tell you how many Senators will be in the room, but I
can assure you of one thing. The White House will be there. You can bet
on that. They will be there with their pet projects and their pet
peeves and their opportunities to move certain items into their
favorite States--doing their bidding, legislating right along with the
Senators. They will be there. White House bureaucrats and soothsayers
will suddenly become legislators for a day, or perhaps several days.
That is not the way our Constitution contemplated the writing of
appropriations bills. The Framers believed that Congress ought to have
the power of the purse. This White House would like to have it. They
would like very much to have it. But all of those constitutional
niceties get blurred and blended when it comes time to deal on Omnibus
appropriations bills. The checks and balances gets thrown out the
window when it comes time to deal with Omnibus appropriations bills.
One could conclude that the only thing the President wants from the
fiscal year 2005 appropriations bill is the Defense appropriations
bill. That is the only thing the President would want from the 2005
appropriations process--the Defense appropriations bill.
On June 24, 2004, in its Statement of Administration Policy, the
White House urged the Congress to pass the Defense bill before the
start of the August recess. Why?
In February, the President did not ask for one thin dime, not one
thin dime did he ask for as far as the costs
[[Page S8529]]
of the war in Iraq--nothing. Administration officials had the temerity
to insist that the costs of the war were not knowable. Then suddenly,
on May 12, 2004, the President saw the light and realized that he
needed more money for the war in Iraq. It must have come to him in a
sudden vision. So, like a teenage driver, he put the foot on the gas
and insisted that the Congress give him a $25 billion blank check for
the escalating costs of his war in Iraq.
With the help of Senator Stevens of Alaska, the blank check got
canceled, but the defense conference report will include the $25
billion in additional funds. The President will get the one thing he
wanted out of this year's appropriations process; he will get the
Defense appropriations bill.
So I must ask the American people, why is it the President has not
sent messages to the Congress urging prompt action on the bill that
funds the veterans health care system? I am sure the veterans are
concerned about what is going to happen with respect to their needs.
Moreover, does the President not know that the bill that funds our
Nation's schools is stuck in subcommittee? What about the
appropriations bill that funds our highway system that has not yet been
considered by the House or the Senate? In February, the President
proposed to put a man on Mars, but the bill that funds the space
program has not been marked up by either the House or Senate
appropriations committees.
According to President Bush, Congress must urgently send him the
Defense appropriations bill; but for all of the other appropriations
bills, the attitude is ho hum; so what.
According to the administration, we are facing another terrorist
attack. Are we not even going to debate whether a 5-percent increase
for the Department of Homeland Security is enough?
Last year, we fell prey to a 7-bill omnibus, but at least the Senate
debated as freestanding bills 12 of the 13 bills. Now we are down to
only one debate this year on the Defense bill. That is one bill, and
only one debate this year, on the Defense bill.
Where do we go from here on funding the needs of the people? One of
the options that has been discussed by the Republican leadership is to
pass the full-year continuing resolution and leave town, get out of
town, catch the next train, all aboard. That is right. The exalted
servants of the people may just decide to enjoy a summer vacation if
some in the Republican leadership have their druthers. What does it
matter if all of the Federal Government, except the Pentagon, operates
on automatic pilot for a full year? Who needs guidance from the
Congress on the priorities? Who needs careful scrutiny of Federal
programs? What about the new initiatives? Shouldn't they be under
careful scrutiny? Shouldn't questions be asked and questions answered?
Let me give you, my colleagues, a few examples of what would happen
under a full-year continuing resolution. If that is what you want, I
tell you what you are going to get.
If the Senate Republican leadership refuses to allow the Senate to
debate the Homeland Security appropriations bill, important funding in
new programs would not be available to the Department.
As we all know, on March 11, 2004, nearly 200 people were killed by a
series of bombs detonated on the transit system in Madrid, Spain. The
Department of Homeland Security responded by sending out a list of
security recommendations for mass transit and rail systems in the
United States. These recommendations included moving garbage cans and
asking commuters to be more alert to suspicious people and packages,
like unattended backpacks. However, despite my efforts, no moneys were
approved for fiscal year 2004 for mass transit or rail security. Are we
comatose in the Senate? Perhaps we better reach back in our desks
somewhere and get our living wills.
On an average workday, 32 million people travel on mass transit. Get
that, 32 million people travel on mass transit on an average workday.
However, under a continuing resolution, there would be no funding to
help secure our mass transit and rail systems. There would be no funds
for additional law enforcement presence, no funds for additional K-9
teams, no funds for additional surveillance, no funds for additional
public education about the threat. Is that OK with the Senate?
Following the tragic events of September 11, the administration
established a firm goal for the number of Federal air marshals so that
a high percentage of critical flights could be protected. The exact
number of air marshals is classified, but the fact is, the Federal air
marshals program has never reached the staffing level called for in the
wake of the September 11 attacks.
Instead, the White House has allowed the number of air marshals to
fall by 9 percent, falling far below the goal. As air marshals leave
the program, budget constraints prohibit the hiring of replacements.
The number of air marshals continues to dwindle and the number of
critical flights they are able to cover remains on a steady downward
spiral. If forced to operate under a continuing resolution, the number
of air marshals protecting domestic and international flights could
fall by another 6 percent, putting Americans in greater danger. How can
we contemplate such irresponsibility? Doesn't public safety count?
How about funding for our Nation's schools? Two and a half years ago
the President promised to leave no child behind. The No Child Left
Behind Act authorized $20.5 billion in fiscal year 2005 for title I,
the Federal program designed to help disadvantaged students in
kindergarten through high school, those students who are most at risk
of being left behind. A continuing resolution would freeze title I
funding at just $12.3 billion. That would leave behind 2.7 million
students who would not receive the title I services that were promised
to them in the No Child Left Behind Act.
A continuing resolution would also freeze funding for special
education. Two months ago, the Senate voted overwhelmingly by a vote of
96 to 1 to authorize a $2.3 billion increase for the Individuals With
Disabilities Education Act--better known, perhaps, as IDEA--in fiscal
year 2005, and fully fund the law within 7 years. A CR would put the
lie to that pledge.
As candidate for President in 2000, President Bush said:
College is every parent's dream for their children. It's
the path to achievement. We should make this path open to
all.
But, my dear friends, under the Bush administration, the cost of
tuition has gone up by 26 percent, making it harder and harder for low-
and middle-income students to pursue that dream.
The Pell grant: A maximum Pell grant now covers only 34 percent of
the average annual cost of college compared to 72 percent in 1976.
Under a continuing resolution, there would be no increase in the
maximum Pell grant now set at $4,050. There would be no increases for
the College Work-Study Program or for other campus-based aid programs.
So much for dreams, so much for promises, so much for empty talk.
For the construction and restoration of our Nation's highways and
bridges, a long-term continuing resolution would stifle the flow of
billions of new dollars going to our States to improve safety
conditions, minimize congestion, and create badly needed jobs.
Just this past February, more than three-quarters of the Senate, 76
Senators, approved a surface transportation bill that called for an
overall commitment of highway funds for fiscal year 2005 of $37.9
billion. Under a long-term continuing resolution, highway funding would
be $4.25 billion less than that amount, a $4.25 billion shortfall. That
difference represents more than 200,000 jobs across America, jobs that
are desperately needed all across our States. But the Senate is in
gridlock, much like the gridlock on our Nation's highways.
Our Nation's military is serving gallantly in Iraq and Afghanistan,
but under a continuing resolution the Veterans Health Administration,
unbelievably, would get drastically reduced health care services for
our fighting men and women. Approximately 237,000 veterans would not be
able to receive care, and veterans outpatient clinics would schedule
2.6 million fewer appointments. The waiting list for veterans seeking
medical care would grow to over 230,000. What a way to treat our brave
men and women. Shabby and shameful are the two words that come to mind.
Al-Qaida operatives are in the United States preparing for another
terrorist
[[Page S8530]]
attack. The FBI must mobilize to find those terrorists before they
attack us. But a full-year continuing resolution would force the FBI to
freeze all hiring in fiscal year 2005. That would result in the FBI
losing 500 special agents and negating the proposed increase of 428
special agents. Nor would the FBI be able to fund any of the new
initiatives proposed in the fiscal year 2005 budget request, including
resources for the new office of intelligence counterterrorism
investigations, counterintelligence, and fighting cyber crime.
Another casualty of a full-year continuing resolution would be
programs to combat HIV/AIDS, particularly in eastern Europe and Asia
where the epidemic is spreading out of control. Only one in five people
worldwide have access to HIV/AIDS prevention programs. Yet a continuing
resolution would reduce funding for those programs by almost half a
billion. That means there would be hundreds of thousands of new
infections of the deadly virus--infections that could have been
prevented, lives that could have been saved.
The list goes on and on and, like Tennyson's book, goes on. Members
of this Congress have a duty and a responsibility to the American
people. They do not want us to approve massive omnibus spending bills
that no one has bothered to read. They do not want us to pass mindless
continuing resolutions that put the Government on automatic pilot and
their safety on the line. They do not want us to cash our own paychecks
without doing the work we were sent here to do.
We are paid to debate legislation. We are paid to make careful
choices on behalf of the people. The elections are coming, and if we
are not going to do our work, then we should not claim the title of
Senator. Just like Donald Trump, come November, the American people
might decide to send us a very straightforward message: You're fired.
Last week, the Republican leadership jammed into the defense
conference report a provision ``deeming'' the level of spending for
fiscal year 2005 at the level in the budget resolution conference
report. It seems now we are ``deeming'' our way through budget debates.
``Deeming''--this provision was not contained in the Senate or House
version of the Defense bill. It was not debated here on the Senate
floor. Yet this innocuous-sounding ``deeming'' provision will have far-
reaching consequences. That provision will result in appropriations
bills that inadequately fund homeland security, education, veterans,
transportation, and other programs to meet domestic needs. And the
consequences are not just on paper. The American public is being
cheated year after year by the steady erosion of money available to
fund the public's priorities. They are being ``deemed'' down the river.
This year, even while the directors of Homeland Security, the FBI,
and the CIA are warning us of al-Qaida in our midst, we still are
unaccountably and stubbornly sitting on the Homeland Security
appropriations bill as if in total defiance of the dangers to our
country and to the people's safety.
None of this is the fault of our able Appropriations Committee
chairman, Senator Ted Stevens. Early on, I encouraged Chairman Stevens
to move 13 freestanding, fiscally responsible appropriations bills
through the committee and on to the Senate floor. Senator Stevens
instructed his 13 subcommittee chairmen to produce balanced and
bipartisan bills; however, the Senate Republican leadership has refused
to free up floor time for the appropriations bills.
I will not be a party to such chicanery, and I implore the leadership
of this body to stop the games and stop the politics. And I ask the
majority leadership to set aside the pending business and proceed to
the consideration of Calendar Order No. 588, H.R. 4567, the fiscal year
2005 Homeland Security appropriations bill.
Madam President, I yield the floor.
Mrs. FEINSTEIN. Madam President, I echo the comments of Senator Byrd,
the ranking member of the Appropriations Committee. While I do not have
the perspective of his years of service in the Senate and on the
Appropriations Committee, I share his concern about the breakdown we
are seeing in this year's appropriations process.
There are only 2 days left before the Senate leaves for an extended
August recess. Yet the Appropriations Committee has reported out only 4
of the 13 appropriations bills we must pass this year. The Senate has
passed only one Appropriations bill--the Defense Appropriations bill.
This is a dereliction of our primary duty in the Senate, funding the
functions of Government.
The blame for this situation does not go, in my view, to the
Appropriations Committee. In the limited work the committee has done
this year, it has operated in an efficient, bipartisan manner. But we
all know that the committee has been hampered by the failure to enact a
budget resolution.
A budget is a clear articulation of priorities. We are having these
problems because of a failure to prioritize, or because of skewed
priorities. As we all know, the Congressional Budget Office is
projecting a $477 billion deficit in fiscal year 2004.
But some in the Congress continue to believe that more tax cuts
should be the priority in this Congress. And they refuse to subject
these tax cuts to the discipline of pay-as-you-go rules, which would
require offsetting revenue increases, or spending cuts.
They insist that we can balance the books by ``controlling''
nondefense, nonhomeland security, discretionary spending. Yet, no one
has shown any inclination to significantly cut discretionary spending.
Just the opposite. As Bill Young, the chairman of the House
Appropriations Committee notes:
No one should expect significant deficit reduction as a
result of austere non-defense discretionary spending limits.
The numbers simply do not add up.
The notion of balancing the budget, while further reducing revenue,
is simply wrong-headed. Or, as Chairman Young succinctly puts it, ``the
numbers simply do not add up.''
The Senate is scheduled for 19 legislative days after August. It does
not appear that there is much hope for completing our appropriations
work in that time. Indications in the media from the chairman and from
the Republican leadership are that we will be faced with moving an
omnibus appropriations bill when we return, possibly with some bills
held over for a lameduck session of Congress. That is a terrible way to
do business, and I sincerely hope it does not come to that.
In the remaining 2 days before we recess, I am hopeful that we can at
least take up my subcommittee's bill, the military construction bill.
The subcommittee chairman, Senator Hutchison, and I have worked well
together to craft a good bill with the support of Senators Stevens and
Byrd. I believe that it deserves the support of the full Senate.
And when the Senate reconvenes, in September, I hope that we on the
Appropriations Committee will work efficiently, and on a bipartisan
basis, to report freestanding bills to the Senate.
Mr. BYRD. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mrs. Dole). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. CORNYN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Cornyn pertaining to the submission of S. Res.
413 are printed in today's Record under ``Submitted Resolutions.'')
The PRESIDING OFFICER. The Senator from Michigan.
(Mr. CORNYN assumed the Chair.)
Ms. STABENOW. Mr. President, I rise today to express deep
disappointment about what is taking place on the Senate floor in the
cloture vote scheduled for tomorrow. For the past 3\1/2\ years, Senator
Levin and I have been urging the Bush administration to work with us to
develop a bipartisan solution regarding the Michigan nominees to the
Sixth Circuit Court. We have met on several occasions with Judge
Gonzales, the current White House counsel, and other White House staff,
but the White House has rejected all of our efforts at a compromise. We
also had numerous meetings with Chairman Hatch and testified before the
Senate Judiciary Committee several times on the need for a bipartisan
solution.
Chairman Hatch had expressed a willingness to work with us and to
work with Senator Leahy on a bipartisan solution to this impasse, but
it seems these efforts have been abandoned by Republican leadership in
[[Page S8531]]
favor of scoring political points before the party conventions.
I still believe the best way to end this impasse is to forge a
compromise. I hope the Bush administration and the Republican
leadership will not continue down this road of what appears to be
politically motivated and partisan cloture votes instead of working
with us to develop a fair solution. A ``nay'' vote on cloture will
preserve potential negotiations toward the bipartisan compromise we
have been seeking. A ``yea'' vote will destroy these efforts and,
unfortunately, be a vote for preconvention politics.
Let me start by saying a few words about Judge Saad's nomination.
Judge Saad is before us now. After listening to people in Michigan who
have shared serious concerns with both Senator Levin and I, and having
had an opportunity to review the FBI background materials, I have to
say that I have serious concerns about Judge Saad's temperament and
appropriateness for serving on this important bench. While I cannot go
into specifics, I urge my colleagues to review the Judiciary
Committee's FBI background materials for themselves.
Judge Saad's lack of fitness for this appointment is also evidenced
in the record he has put together as it relates to his work on the
Michigan Court of Appeals. Most troubling, perhaps, are his decisions
and reversals in cases involving the application of the law in civil
rights cases--particularly in sexual harassment cases.
His decisions also demonstrate hostility to the rights of
whistleblowers. We know in this day and age, as we have learned through
those who were courageous and came forward in the Enron and Halliburton
cases, and others where employees have come forward, how important it
is to be able to protect the rights of employees who see that something
is wrong and they step forward. They are what we call whistleblowers.
His decisions also have been hostile to the rights of people who are
injured. For example, in Coleman v. State, Judge Saad joined in
deciding against the plaintiff in a sexual harassment case, which was
later reversed by the Michigan Supreme Court. Coleman, a State prison
employee, was subjected to comments by her supervisor about her
allegedly provocative dress and to daily inspections of her clothing,
after she was the victim of an attempted assault and rape by an armed
prison inmate. She was the one who was questioned, as too often we hear
as it relates to women who are told it was their fault, because of the
way they dress, and that is why they were assaulted. The Michigan
Supreme Court reversed the decision, holding that there was sufficient
evidence for the victim to go to trial.
In Haberl v. Rose, Judge Saad dissented from the court of appeals'
reinstatement of a jury verdict for the plaintiff who was injured by a
Government worker who was doing Government work but driving her own
automobile.
In the complicated case, the majority found that Michigan's sovereign
immunity statute was not applicable, since a more specific civil
liability statute said that car owners are not immune from liability.
Car owners have liability in these kinds of cases.
The dissenting Judge Saad stated that the sovereign immunity statute
applied but the civil liability statute did not and, thus, the injured
plaintiff could not recover.
Judge Saad was harshly criticized for his dissent by the majority of
the judges, who essentially called him a judicial activist:
Indeed, it is the dissent that urges ``rewriting'' the
statutes in question and advocates overstepping the bounds of
proper judicial authority.
Based on these concerns, I do not believe Judge Saad has the
necessary judicial temperament to serve a lifetime appointment--a
lifetime appointment--on the Sixth Circuit Court of Appeals.
Mr. President, I wish to speak more broadly now about the process of
bringing the Sixth Circuit nominees to the floor of the Senate. Senator
Levin has spoken eloquently about the history of the Sixth Circuit
nominees prior to my serving in the Senate. He has explained how two
extremely well-qualified women--Judge Helene White and Kathleen McCree
Lewis--failed to get a hearing before the Judiciary Committee for more
than 4 years and 1\1/2\ years, respectively, during the previous
administration.
In fact, if she had been confirmed, Kathleen McCree Lewis would have
been the first African-American woman on the Sixth Circuit Court of
Appeals.
Senator Levin and I are not alone in the view we hold that what
occurred with respect to these nominees was fundamentally unfair.
On more than one occasion, Judge Gonzales, the current White House
counsel, has acknowledged that it was wrong for the Republican-led
Senate to delay action on judicial nominees for partisan reasons, at
one point even calling the treatment of some nominees during the
Clinton administration ``inexcusable.''
Senator Levin and I have repeatedly proposed to settle this
longstanding conflict by appointing a bipartisan commission to make
recommendations to the White House on judicial nominations.
Our proposal would be based on the commission that is set up and
working just across Lake Michigan in Wisconsin. The State of Wisconsin
commission has produced bipartisan nominees for both district and
circuit courts since its inception under the Carter administration.
In fact, just recently, the Senate confirmed Judge Diane Sykes for a
vacancy on the Seventh Circuit Court of Appeals. Judge Sykes, a Bush
administration nominee, was recommended by the bipartisan Wisconsin
commission and had the support of both of her Democratic home State
Senators.
This process works. The Wisconsin commission includes representatives
from the Wisconsin Bar Association, the deans of the State's law
schools, as well as members appointed by both Republicans and
Democrats. They only recommend qualified candidates who have the
support of the majority of the commission. The President then looks to
the recommendations of the commission when making his nominations.
The Wisconsin commission's recommendations have always been followed
by the President, regardless of political party. Again, this system has
worked.
This type of commission preserves the constitutional prerogatives of
both the President and the Senate. It allows the President to pick one
of the recommended nominees and protects the Senate's advise and
consent role.
Wisconsin is not the only State where this type of bipartisan
commission works. In a similar form, it has worked in several other
States, including Washington, California, and Vermont.
Unfortunately, the White House continues to reject this proposal from
Michigan, despite having agreed to similar commissions in other States
with other Democratic Senators.
Senator Levin and I are interested in finding a real bipartisan
solution to this problem. We have stated on numerous occasions that we
are willing to accept the commission's recommended nominees, even if
they do not include Helene White and Kathleen Lewis, or any other
person we would choose if it were up to us.
Instead of divisive cloture votes, let's look to the future and
restore civility to this process. It is time to do that with the Sixth
Circuit.
I hope we can still accomplish this and that the Bush administration
and Chairman Hatch will work with us to develop a fair compromise to
this longstanding problem.
Let me take a moment to reiterate this is not about being unwilling
to fill vacancies. As other colleagues have indicated, we have, in
fact, confirmed 198 judicial nominees of this President, and I have
voted for the overwhelming majority of those nominees. This is more
judicial nominees than were confirmed for President Reagan in all 4
years of his first term, more nominees than were confirmed for first
President Bush during his 4-year Presidency, and for President Clinton
in all 4 years of his second term. Mr. President, 100 judges were
confirmed in the 17 months of the Democratic Senate majority.
So under Democratic control, we confirmed 100 judges, and we were
only in the majority for 17 months of the last almost 4 years. Now, 98
more judges have been confirmed in the 25 months of Republican
leadership. In other words, the Democrats were in the majority less
time and confirmed more
[[Page S8532]]
judges for this President during the last 3\1/2\ years. So this is not
about being unwilling to support filling judgeships, but it is about a
very specific concern about what has been happening in Michigan and the
lack of willingness of the administration to work with both Senators to
fulfill our equal responsibilities of being able to pick the best
people to serve our great State for a lifetime appointment.
These are not Cabinet appointments of this President. They are
lifetime appointments. The reason the Framers of the Constitution
divided the responsibility--half with the President and half with the
Senate, as we know--is because this is a third branch of Government
with lifetime appointments, and it is very important there be the
maximum amount of input, balance, and thoughtfulness brought to this
process.
Unfortunately, regarding the Sixth Circuit, until we have a fair
solution, I believe I have no other option than to oppose this cloture
vote and to urge my colleagues to do the same.
I thank the Chair. I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Parliamentary inquiry, Mr. President. What is the
business before the Senate?
The PRESIDING OFFICER. The nomination of Henry Saad to the Sixth
Circuit Court of Appeals is the pending business.
Mr. HARKIN. I thank the Chair.