[Congressional Record Volume 151, Number 168 (Thursday, December 22, 2005)]
[House]
[Pages H13181-H13183]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       CORRECTING ENROLLMENT OF H.R. 2863, DEPARTMENT OF DEFENSE 
                        APPROPRIATIONS ACT, 2006

  Mr. WOLF. Mr. Speaker, I ask unanimous consent to take from the 
Speaker's table the Senate concurrent resolution (S. Con. Res. 74) 
making appropriation for the Department of Defense for the fiscal year 
ending September 30, 2006, and for other purposes, and ask for its 
immediate consideration in the House.
  The Clerk read the title of the Senate concurrent resolution.
  The SPEAKER pro tempore (Mr. Pence). Is there objection to the 
request of the gentleman from Virginia?
  Mr. OBEY. Mr. Speaker, reserving the right to object, more than a 
year ago when Mr. Lewis was elected chairman of the Appropriations 
Committee, he came to me and asked if we could have an understanding 
that we would express our substantive differences, but still cooperate 
in moving bills forward in an orderly way once those differences were 
expressed. We did that.
  Time and time again, the minority was denied the opportunity to offer 
different sets of priorities, priorities that did not offer huge tax 
cuts for those who have the most in society, paid for with cuts in 
education, health care, and worker protection for those who have the 
least. Despite the fact that the rules of the House were used to block 
our efforts to obtain on-the-record votes on a number of our 
alternatives, Democrats continued to cooperate procedurally even as we 
made clear our differences on policy.
  The Republican majority wanted to finish all of these bills by the 
end of the fiscal year, and we did not procedurally obstruct them, 
because while we differed strongly with the values that lie behind 
their budget priorities, we respected the fact that they are in the 
majority, and we respect and revere this institution. But because of 
internal divisions between the majority party, divisions within the 
House GOP caucus, and divisions between House and Senate Republicans, 
the fiscal year ended with the Labor-HHS bill and the Defense 
appropriations bill that represents 67 percent of the discretionary 
spending in our budget bill still being hung up in the legislative 
process.
  Now in the closing days of this Congress, the Republican leadership 
has decided to use the must-pass Defense appropriations bill to force 
down the throats of the American people a number of wholly unrelated 
gifts to special interests. They decided to hold funds for our troops 
hostage in order to force Congress into removing protections against 
oil drilling in ANWR.
  To make room for their tax giveaways, they even imposed a second 
round of cuts on education, health, worker protection, and even imposed 
a $4 billion additional cut in military spending. Senate action 
yesterday has corrected one provision inserted in the bill by the abuse 
of power, the strong-arm attempts at drilling in ANWR, and for that I 
applaud the Senate. I led the opposition to ANWR's inclusion in the 
conference, and I am happy that the Congress was not blackmailed into 
accepting it.
  But, frankly, Mr. Speaker, continuing under my reservation, ANWR was 
not the biggest problem with the conference report. The biggest problem 
is that it shortchanges our economic future by refusing to make 
adequate investments in education. And it cruelly neglects to 
strengthen support for programs that help provide critical health care 
services to people who desperately need them.
  But we have lost that fight. This Congress has made the decision to 
cut critical health, education, worker protection, and social service 
funding by $3 billion below last year's level. What I find so gutless 
about Congress' performance on this bill is that those cuts could not 
pass the Senate on a rollcall vote, so the majority party had to 
arrange for their Senators to duck this vote, thereby hiding from 
accountability by arranging for the bill to be passed through the 
Senate without a rollcall vote. That means the majority party has 
denied critical help to families most in need of help, but has not had 
the courage to forthrightly defend their votes to the people affected 
in the public arena.
  This bill makes that problem $1.4 billion worse for those programs 
and because of the across-the-board cut, it makes other ill-advised 
cuts in critical funding for the FBI and local law enforcement, and it 
even cuts an additional $4 billion out of the Defense bill. If I could 
do anything to change that, I would; but it is clear the die is cast.
  Continuing under my reservation, Mr. Speaker, there is a second 
outrageous problem with this bill. The majority has turned the proposal 
to prepare for a flu pandemic into a giveaway to the pharmaceutical 
industry. When the President requested $7 billion to begin a much-
belated crash program to develop a new generation of vaccines and 
antiviral drugs to combat a potential flu pandemic, the Republican 
majority responded by cutting it in half. When I asked Senator Stevens 
in conference why we shouldn't fund the rest of the administration's 
request so that it was clear that the government had a long-term 
commitment to the development of needed vaccines and antivirals, he 
responded that because liability protection language for manufacturers 
was not being adopted, long-range funding should be withheld.
  The conference committee ended its work with the understanding, both 
verbal and in writing, that there would be no legislative liability 
protection language inserted in this bill. And because the majority 
told us it did not want any compensation program for victims to be 
applied against the discretionary portion of the budget, no funding was 
provided for that, either.
  But after the conference was finished at 6 p.m., Senator Frist 
marched over to the House side of the Capitol about 4 hours later and 
insisted that over 40 pages of legislation, which I have in my hand, 40 
pages of legislation that had never been seen by conferees, be attached 
to the bill. The Speaker joined him in that assistance so that, without 
a vote of the conferees, that legislation was unilaterally and 
arrogantly inserted into the bill after the conference was over in a 
blatantly abusive power play by two of the most powerful men in 
Congress.
  We then discovered that this language provided all sorts of 
insulation for pharmaceutical companies and that this insulation 
applied not just to drugs developed to deal with the flu but in fact 
applied to a far broader range of products. In essence, the provisions 
allowed the Secretary of HHS to issue a declaration that has the effect 
of almost completely prohibiting lawsuits in State or Federal courts by 
persons whose health was injured against manufacturers and various 
others for compensation for injuries caused by the use of covered 
countermeasures.
  That determination would bar lawsuits against a wide range of covered 
persons involved with the countermeasures including manufacturers and

[[Page H13182]]

their suppliers, their distributors, State and local governments and 
their employees involved with the use of those countermeasures, medical 
personnel prescribing and administering the countermeasures, and so 
forth.
  That is very broad power, indeed, to ban lawsuits. Unlike the 
language requested by the administration, the division E language is 
not limited to products to combat a flu pandemic. Rather, it applies to 
any drug, vaccine, medical device, or other products useful in dealing 
with anything the Secretary considers to constitute a health emergency 
or that could constitute an emergency in the future.
  Although a rationale often offered for lawsuit protection is that it 
is needed to encourage manufacturers to develop and produce new 
treatments, the protections of division E are not limited to new or 
experimental products. Rather, nothing in the language would prevent 
the Secretary from providing protection against lawsuits to drugs that 
have been on the market for decades. Further, the language explicitly 
prohibits any judicial review in either Federal or State court of the 
Secretary's decisions to grant immunity from lawsuits.

  If anyone believes that the power is being exercised too broadly, or 
even in violation of the law, they apparently would have no remedy 
other than asking the Secretary to change his mind or asking Congress 
to amend the law.
  Although proponents point to provisions of this language that make an 
exception and allow lawsuits in cases of willful misconduct, that 
exception is so narrowly drawn as to be almost meaningless. First, the 
provision defines ``willful misconduct'' as acts taken intentionally to 
achieve a wrongful purpose, knowing there is no legal or factual 
justification, and in disregard of known or obvious great risk. 
Basically, Mr. Speaker, the only conduct that would permit a lawsuit 
under this definition is probably conduct so egregious as to be 
criminal in nature.
  However, even this highly restrictive definition of ``willful 
misconduct'' doesn't seem to have been enough restriction on lawsuits 
to satisfy the authors of division E. They added yet another provision 
that allows the Secretary of HHS to promulgate regulations further 
narrowing the scope of actions that could give rise to a right to sue. 
Then there is yet another provision that says that if the conduct in 
question is regulated under the Food and Drug Act or Public Health 
Service Act, a lawsuit for willful misconduct can be brought only if 
the Federal Government has taken enforcement action against that 
conduct.
  Finally, the language makes various changes to the normal rules of 
civil procedure to add further obstacles and difficulties in front of a 
potential plaintiff. In short, as a practical matter, there is 
virtually no right for anyone to sue about anything covered by a 
secretarial determination under this language.
  In summary, the administration asked for some very broad liability 
protections for manufacturers and others involved with countermeasures 
against pandemic flu, and the administration's proposal was widely 
criticized as going too far. With division E of the Defense 
appropriations conference report, Congress would be providing even 
broader protection, potentially covering a wide range of drugs, 
vaccines, and devices far beyond what is needed to deal with flu. 
Further, this denial of the right to sue is more sweeping than provided 
in the case of childhood vaccines or in the case of smallpox vaccine. 
In the smallpox case, manufacturers were protected by basically 
substituting the Federal Government as defendant, with the scope of 
potential lawsuits against the Federal Government narrowed, but not 
eliminated.
  Now, Mr. Speaker, I recognize that some sort of liability protection 
or indemnification is necessary and appropriate to encourage 
development and manufacture of some measures to deal with pandemic flu; 
and I would support such reasonable language, language that has been 
reviewed by a committee that knows what it is doing in a process that 
allows for public comments. But there are real doubts about whether it 
needs to be this broad. It is worth noting that Sanofi Pasteur, our 
only domestic flu vaccine manufacturer, has already signed contracts 
with the Federal Government to make avian flu vaccine and has already 
delivered some lots, rather than refusing to proceed until legislation 
like this is enacted. Similarly, Roche has been supplying Tamiflu for 
the national stockpile and actively seeking contracts to supply more.
  The result of this legislative action was a provision in the pending 
bill that prevents anyone who is a victim of a faulty vaccine from 
being able to obtain compensation in the courts. It says, in effect, 
that if you become seriously ill because of mistakes in manufacturing 
that you lose your right to sue for compensation, but you can as an 
alternative seek compensation from the government. The problem is that 
no funds were provided, or no money was provided, for that fund. So 
anyone who gets sick would have to lobby Congress to put money in the 
fund before they can collect. Thus, people injured lose their right to 
sue, but are not guaranteed any alternative means of covering their 
medical bills, lost earnings, and other costs.
  Mr. Speaker, the committee system was created years ago to ensure 
that, to protect the public interest, legislation would be carefully 
reviewed before it was placed before the body for consideration. But 
that protection was arbitrarily bypassed by the leadership in both 
Houses.
  This is the second time that this Congress has supinely done the 
bidding of the pharmaceutical industry in the dead of night. The first 
time a vote was held open for 3 hours while the Republican majority 
twisted arms to create the complex and ridiculously confusing 
prescription drug bill that our seniors are now so desperately trying 
to understand, a bill that was ushered through this institution by over 
600 lobbyists and that protected companies by preventing the government 
from even attempting to negotiate lower drug prices.
  If I thought that denying unanimous consent on this bill would force 
the majority to eliminate that language, I would object. But, Mr. 
Speaker, it has also been made quite clear to me that the majority will 
not relent on the language that insulates drug companies. So, Mr. 
Speaker, I want it to be clear that the action to insert this special 
interest language in the bill is, in my view, a corruption of the 
legislative practices of the House.
  When Congress returns in January, I intend to raise a question about 
the privileges of the House that are highlighted by this action because 
it has brought discredit to the House and should disturb every Member 
who serves here. No Member of Congress, no matter how powerful, should 
be able to unilaterally insist that provisions that were never 
discussed and never debated in the conference should wind up being 
slipped into that conference report without a vote of that same 
conference.
  This is what happens when there are no checks and balances and when 
one party controls the White House, the Senate, and the House and 
respects no limits on its own use of power. We have been placed in this 
position because the House Republican leadership has sent Members home 
for the Christmas holidays with the message to the Senate that we would 
not be here even if the Senate changed the legislation the House sent. 
That was irresponsible, and the country will pay the price. This 
institution, unfortunately, will also pay a price in terms of 
diminished respect from the people we were elected to represent.
  This is a shameful and shabby way to end the worst session of 
Congress I have experienced in my 36 years in this House. So, Mr. 
Speaker, I most reluctantly withdraw my reservation, because lodging an 
objection at this point would simply delay the shameful inevitable.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Virginia?
  Mr. FITZPATRICK of Pennsylvania. Mr. Speaker, further reserving the 
right to object, last week as American soldiers continued to bravely 
wage the war on terror in Iraq and Afghanistan, the House of 
Representatives passed a Defense appropriations bill containing a 
nongermane provision, language that would open up the Arctic National 
Wildlife Refuge to exploration. The agreement to include ANWR in the 
Defense appropriation turned what was essentially a bipartisan bill 
into a fight on the floor of both legislative bodies,

[[Page H13183]]

placing at risk the timely funding of our troops. Defense 
appropriations bills are historically the most protected type of 
legislation considered by the United States Congress. The Defense bill 
is usually the first piece of appropriations legislation passed by the 
House and Senate, and its language is kept clean from unnecessary and 
nongermane add-ons and amendments. That is why the addition of ANWR was 
so surprising to so many Members.
  Prior to the vote earlier this week, I wrote a letter to the Rules 
Committee chairman expressing in the strongest terms possible my 
opposition and disappointment at the decision to place ANWR in the bill 
before the House. Mr. Speaker, I was not alone in my concern. Prior to 
Senate debate on the House-approved Defense bill, a group of high-
ranking officers, including General Anthony Zinni, United States Marine 
Corps, sent a letter stating their concern over ANWR's inclusion in the 
legislation.
  They wrote, and I quote: ``With 160,000 troops fighting in Iraq, 
another 18,000 in Afghanistan and tens of thousands more around the 
world defending this country, Congress must finish its work and provide 
them the resources they need to do their job. We believe that any 
effort to attach controversial legislative language authorizing 
drilling in the Arctic National Wildlife Refuge to the Defense 
appropriations conference report will jeopardize Congress's ability to 
provide our troops and their families the resources they need in a 
timely fashion.''
  They continued, saying that ``the passion and energy of the debate 
about drilling in ANWR is well known, and a testament to vibrant debate 
in our democracy. But it is not helpful to attach such a controversial 
nondefense legislative issue to a Defense appropriations bill. It only 
invites delay for our troops as Congress debates an important, but 
controversial, nondefense issue on a vital bill providing critical 
funding for our Nation's security.''
  As I speak, our brave men and women in the Armed Forces are serving 
in every corner of the globe. The work our servicemen and -women do 
each day will create a safer world, a world where liberty and democracy 
will take root in regions of the world untouched by freedom and choice. 
Our military deserves our support and the best equipment, training, 
armament, and reward our government can offer them. That is why I am 
here today, to lend my strong support to the legislation. The Senate 
made the right choice yesterday to strip this bill of unnecessary 
ornaments. ANWR does not belong in the Defense bill, and I am proud to 
support the Senate version without it.
  The Defense appropriation bill being considered by the House today is 
a good bill. It will enable our troops to stand down as Iraqi security 
forces stand up. This legislation provides $403.5 billion for our 
troops during this transition, equipping them with $8 billion to 
replace damaged equipment, $1.2 billion for force protection, and $500 
million to train new security forces in Iraq and in Afghanistan. Also, 
this legislation provides an essential 3.1 percent military pay 
increase for our soldiers effective January 1, 2006. This legislation 
honors our military and is deserving of all of our support.
  As good as this legislation is, Congress must remain vigilant in our 
responsibility to support our troops. The Associated Press recently ran 
an article questioning the amount of money needed to address emergency 
combat operations in Iraq and Afghanistan. The article reported that 
the military informally indicated to the House Armed Services Committee 
that they would need an additional 80 to $100 billion to fund 
operations in Iraq and Afghanistan. This request is made in addition to 
the $50 billion appropriated through the Defense bill. This request is 
still being drafted by the Department of Defense and will most likely 
come to the floor as an additional spending package after we return 
next year.
  I call on my colleagues to support this additional funding when it 
arrives in the House. We cannot afford to leave our military 
unprotected and underfunded, especially at this important time in our 
Nation's history.
  Next week, Mr. Speaker, I will travel to Iraq to see the progress the 
Iraqi security forces are making to take the fight to the insurgents 
and to take their nation's future into their own hands. I will also 
visit our troops to give them our thanks from a grateful Nation for the 
work that they are doing to fight the terrorists, to secure the nation 
and pave the way for a new and vibrant democracy in Iraq. Our troops 
must have a clear understanding that our support for them is 
unwavering. The American people must know that our support for our 
Armed Forces is strong. That is why this legislation must pass clean, 
devoid of any needless add-ons. I call on my colleagues to support the 
legislation and pass the Defense appropriation bill.
  With that, Mr. Speaker, I withdraw my reservation of objection.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Virginia?
  There was no objection.
  The Clerk read the Senate concurrent resolution, as follows:

                            S. Con. Res. 74

       Resolved by the Senate (the House of Representatives 
     concurring), That, in the enrollment of the bill (H.R. 2863) 
     making appropriations for the Department of Defense for the 
     fiscal year ending September 30, 2006, and for other 
     purposes, the Clerk of the House of Representatives shall 
     make the following corrections:
       Strike Division C, the American Energy Independence and 
     Security Act of 2005 and Division D, the Distribution of 
     Revenues and Disaster Assistance.

  The Senate concurrent resolution was concurred in.
  A motion to reconsider was laid on the table.

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