[Congressional Record Volume 154, Number 144 (Thursday, September 11, 2008)]
[Senate]
[Pages S8361-S8364]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2009--Continued

  Mr. LEVIN. Mr. President, I think Senator Warner is just about to 
enter the Chamber. I would ask the indulgence of my friend from Vermont 
for one more moment.
  Even though there is not too much evidence, the fact is, we have made 
some significant progress today in some significant areas on the 
Defense authorization bill. Now that Senator Warner is here, I always 
welcome his good wisdom. This is where we are now, as I was saying. We 
made some significant progress on the bill, even though it has not been 
that obvious and apparent.
  Today we have been able to make some important progress. We will be 
here tomorrow. Senator Warner and I will be here tomorrow. We urge 
Senators to come over to see if we can debate their amendments, to 
discuss their amendments. We are going to work with them to get these 
amendments offered tomorrow so they would be in line when voting time 
comes.
  We will be here, that is true, even though there are no votes 
tomorrow, we understand. We will be here tomorrow. The Senate is in 
session. Senator Warner and I will be here. It is very important that 
Senators who have amendments they intend to offer come here, work with 
us to try to get them in line for a vote, to see if we can get them 
offered tomorrow. That will take unanimous consent, but we will make an 
effort.
  But we need Senators to come Monday afternoon. We will be here Monday 
afternoon. We will be here Tuesday. There are no votes Monday, but we 
will be here for the purpose of debating and discussing amendments, 
trying to again have them offered.
  So it is also, I am authorized to say, that there will be no further 
votes today. Cloture will be filed tomorrow. I thank Senators who are 
working with us. We have lots of amendments we can clear if we can get 
unanimous consent to clear a managers' package. The managers' package, 
we are ready to go with that at any time. We are going to continue to 
add amendments to that package. We will be working with Senators during 
these next few days so we can, hopefully, get this bill passed and 
voted on on Tuesday.
  That is the situation we are currently in.
  The PRESIDING OFFICER (Mr. Nelson of Florida). The Senator from 
Virginia.
  Mr. WARNER. Mr. President, the chairman has quite accurately stated 
the work that has been done thus far, our willingness as the two 
managers to continue working with Senators. We will both be present 
tomorrow as well as Monday. It is hoped that other Senators can be in a 
position to come forward with their amendments.
  I might inquire, can the Presiding Officer advise us on the number of 
amendments on file? An approximation is satisfactory.
  The PRESIDING OFFICER. There are over 220 amendments.
  Mr. WARNER. I thank the Presiding Officer.
  That presents clear evidence to colleagues of the magnitude of the 
task before us. I guess we have said this many times, but this would be 
the 43rd consecutive authorization bill for the men and women of the 
Armed Forces passed by the Senate. It is my hope that we can add No. 
43.
  I commend the chairman for his efforts. I have worked with him 
through this day. I believe we have had some helpful discussions with 
staff and colleagues on the means by which to make progress. We are 
here. It is imperative that this bill pass.
  I remind colleagues of the military construction section of our bill 
which is so vital for the current and future needs of the U.S. 
military. This bill is the sole bill that can carry that important 
piece of annual legislation through and get it into a conference.
  Mr. DeMINT. Will the Senator yield?
  Mr. WARNER. Of course.
  Mr. DeMINT. I appreciate having the opportunity to discuss our 
amendments. I ask unanimous consent that the pending amendment be set 
aside and that I be permitted to call up amendment No. 5405.
  Mr. LEVIN. Mr. President, I will object. We are more than willing to 
discuss this amendment tomorrow. We realize this is one of the 
amendments that will have to be addressed if we are going to get to 
this bill. So it is not as though we are expecting to complete action 
on this bill without addressing the amendment of the Senator. However, 
this is not something I can agree to at this time but would be happy to 
tomorrow or Monday.
  Mr. WARNER. Will the chairman yield for a question?

[[Page S8362]]

  Mr. LEVIN. I am happy to.
  Mr. WARNER. Would it not be to the benefit of the two of us as 
managers, as we have had a great deal of discussion together today on 
it, to hear from our colleague so we have clearly in mind his goals?
  Mr. LEVIN. The reason I am reluctant to agree to that is because the 
Senator from Vermont was dissuaded from addressing the Senate until we 
had a few minutes to talk about plans for the future. I held up the 
Senator from Vermont for, now, 10 minutes when he was here and had a 
right to debate.
  Mr. WARNER. Is there any way we could accommodate both Senators?
  Mr. DeMINT. Mr. President, I don't think I am able to tonight. But 
for clarification, this amendment is two words and a number: Strike 
section 1002. I hope we haven't come to the point in the Senate when a 
Senator would not be allowed one amendment on such an important bill 
that is to strike a section. I can talk more about it later. I know we 
are being encouraged to bring up our amendments. This amendment has 
been filed for a few days. I think at least the staff is well aware of 
what it is. I will certainly not hold up the other Senator. I 
appreciate the chairman's commitment to giving me an opportunity for a 
vote on this amendment before it is all over.
  I yield the floor and thank the ranking member.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I wonder if the Senator from South Carolina 
will be here tomorrow or on Monday? We may be able to discuss his 
amendment. It may be three words, but they are mighty important words 
and have a huge impact, way beyond any description of a three-word 
amendment. Nonetheless, in order to let the Senator from Vermont 
proceed, I am wondering whether it would be possible for the Senator to 
be here tomorrow or Monday so we could discuss his amendment? I would 
be happy to discuss it.
  Mr. DeMINT. I will not be here tomorrow. Since we had understood that 
Monday was a no-vote day, I made other plans. But I can assure my 
colleague I can deputize my staff to work out any agreement that would 
be workable for the chairman and Senator Warner. It is not our intent 
to hold up this bill. There is a managers' package that we will not 
agree to until we have a commitment for this one vote. I want to 
expedite this, as Senator Warner does, and the chairman. But if the 
Senator would like to work with us, I am sure we can work this out 
tomorrow or Monday without my being present.
  Mr. WARNER. The Senator has the floor, so if I could ask him to yield 
for a question?
  Mr. DeMINT. Yes.
  Mr. WARNER. This is of such vital importance to the bill. While it is 
just a few words, it does have very significant ramifications. It deals 
with the relationship of the legislative body; that is, the Congress, 
the executive branch, and the fulfillment of our constitutional 
responsibilities versus the ability of the executive branch to exercise 
certain powers.
  In the Armed Services Committee, this matter was brought up. I put 
forward an amendment in committee not unlike what the Senator from 
South Carolina has pending before the Senate. It was not accepted. It 
was a 12-to-12 vote; therefore, a tie. It did not carry.
  I understand the goals the Senator is seeking. But I point out, if we 
could have a few minutes so colleagues have some idea of the 
significance of this and they can reflect on it. If the Senator is not 
going to be here tomorrow--he has heavy commitments, as do others--nor 
Monday, it would be only Tuesday morning before we could really begin 
to get other Members of the Senate more fully acquainted with the 
complexity of this issue.
  Mr. DeMINT. If I may offer one clarification, this is not the same 
amendment that was offered in committee.
  Mr. WARNER. I understand that.
  Mr. DeMINT. What my amendment does is restore basically the format of 
the Defense authorization bill to the same format it has always had. 
The way it is set up now, the language that references the report 
language and makes it, in effect, law is an unprecedented way to deal 
with report language. What we would do with this amendment is make it 
like every other Defense authorization bill that has ever been passed.
  Mr. WARNER. Mr. President, that is correct. But in the intervening 
period, there has been the issue of Executive order. Therefore, we 
cannot, as a legislative body, be unmindful of what the executive 
branch has enunciated through Executive order. That Executive order 
will carry forward after this administration concludes and be a part 
of the next administration. That clearly states that the President is 
not going to observe the means by which the Congress, specifically the 
Armed Services Committee in the many years' pattern of doing much of 
its work, both in the report language as well as bill language.

  Mr. DeMINT. If the intent is to get around the Executive order, then 
obviously that is a matter for debate. It also gets around the many 
statements made on this floor about the transparency of earmarks and to 
disclose what we are doing.
  Again, this is a very simple amendment. All I am asking for is an up-
or-down vote. I am not asking for passage.
  Mr. LEVIN. Mr. President, let me just quickly say again, if the 
Senator from Virginia is also willing, could we let the Senator from 
Vermont proceed? We could come back. I am happy to debate this 
amendment tonight, if is the only time we can debate it. It has 
ramifications way beyond what the Senator from South Carolina says. We 
made a commitment to the Senator from Vermont that he would be 
recognized next to speak. I was waiting for Senator Warner to come 
over. The Senator from Vermont was generous enough to hold off. I 
thought this would only be a few minutes laying out the path ahead. It 
is much more than that. I could come back and will be here tonight, if 
the Senator from South Carolina will stay here. I would be happy to 
give the position which is so terrifically different, very different.
  Mr. DeMINT. I thank the chairman. We will not abuse the time. I have 
the floor, and I would like to yield for one question to Mr. Coburn. 
Then I will yield the floor.
  Mr. COBURN. Let me say how much I appreciate the hard work done on 
this bill. It is a hard bill. It is important. My question would be to 
both the chairman and ranking member: How are we to be afforded an 
opportunity to amend earmarks if none of them are in the bill, yet they 
carry the force of law as if being in the bill?
  Mr. LEVIN. That can be done by amendment, like any other amendment. 
But what this amendment does is to say that not just the earmark, the 
entire budget, including the President's budget, which is currently in 
that committee report, which is incorporated by reference, that that no 
longer carries the force of law. So the DeMint amendment goes exactly 
in the opposite direction of what Senator McCain and others were trying 
to do, which was to incorporate into law all of the earmarks and the 
President's budget. We want them in law. We want them to be in law. We 
got a letter, however, from Senate legal counsel saying it cannot be 
done technologically.
  I am not able to argue with him. I would be perfectly happy, and I 
hope they can be made part of law. But the DeMint amendment goes in the 
opposite direction. Instead of making them part of law, it wipes out 
their legal status by saying they will only be part of a committee 
report which is not incorporated by reference, and, because of the 
Executive order, the agencies of the Government are directed to ignore 
the committee report. Previously, the executive departments would 
comply with committee reports. That is no longer true under the 
Executive order.
  So what this amounts to, the DeMint amendment, is an abdication of 
the power of the purse totally, not just over earmarks but over the 
President's own budget which has been adopted by the Congress. This is 
the opposite of what Senator McCain and others have urged, which is 
that earmarks and other appropriations be incorporated into law. This 
goes the other direction and says they have no force of law whatsoever.
  We have to debate the DeMint amendment. I am more than willing to 
debate the DeMint amendment. I would come back tonight to do it. But I 
don't think, in fairness to the Senator from

[[Page S8363]]

Vermont, that we should not allow him to proceed for his 10 or 15 
minutes, whatever he wanted. I would be happy to come back.
  Mr. COBURN. If I might through the Chair ask another question?
  The PRESIDING OFFICER. The time is held by the Senator from South 
Carolina.
  Mr. COBURN. And he yielded to me.
  The PRESIDING OFFICER. Senator Coburn is now recognized.
  Mr. COBURN. I say to Senator Sanders, I will finish this very 
quickly.
  My concern is, I have talked to the McCain folks. They are very 
unhappy with this provision. The reason they are unhappy is there is no 
way the Parliamentarian will allow me to amend report language on the 
floor because it is not part of the bill we are discussing. I would be 
happy to work in the background with both the chairman and ranking 
member to move all of this to the bill so it is not a question.
  That is what I would ask that you, please, try to accommodate us on 
because having the debate and amending things--and I will raise that 
out of the $5.9 billion worth of earmarks in this bill, the vast 
majority are noncompetitive bid. In other words, there is no 
competition for value for the American taxpayers' dollar. They are 
direct mandates that certain money will be spent with certain companies 
with no estimation, no competitive bidding.
  So I will not delay this any longer. I would ask that the chairman 
and ranking member--I think the Senators have done a great job on the 
bill. I do not think it is significantly different in terms of earmarks 
than what it has been in the past. But if, in fact, we could figure out 
a way to make them where we could have them at least discussed and have 
an opportunity to amend them, I would appreciate that deference.
  Mr. WARNER. Mr. President, will the Senator yield?
  Mr. COBURN. Mr. President, I will be happy to yield.
  Mr. WARNER. Can the Senator visit with the two of us off the floor 
such that our colleague can proceed?
  Mr. COBURN. Absolutely.
  Mr. WARNER. Mr. President, I ask unanimous consent that the 
Presidential document to which I referred, dated February 1, 2008, be 
printed in the Record as a part of the colloquy.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Federal Register, Feb. 1, 2008]

                         Presidential Documents


                         Title 3--The President

    Executive Order 13457 of January 29, 2008: Protecting American 
        Taxpayers From Government Spending on Wasteful Earmarks

       By the authority vested in me as President by the 
     Constitution and the laws of the United States of America, it 
     is hereby ordered as follows:
       Section 1. Policy. It is the policy of the Federal 
     Government to be judicious in the expenditure of taxpayer 
     dollars. To ensure the proper use of taxpayer funds that are 
     appropriated for Government programs and purposes, it is 
     necessary that the number and cost of earmarks be reduced, 
     that their origin and purposes be transparent, and that they 
     be included in the text of the bills voted upon by the 
     Congress and presented to the President. For appropriations 
     laws and other legislation enacted after the date of this 
     order, executive agencies should not commit, obligate, or 
     expend funds on the basis of earmarks included in any non-
     statutory source, including requests in reports of committees 
     of the Congress or other congressional documents, or 
     communications from or on behalf of Members of Congress, or 
     any other non-statutory source, except when required by law 
     or when an agency has itself determined a project, program, 
     activity, grant, or other transaction to have merit under 
     statutory criteria or other merit-based decisionmaking.
       Sec. 2. Duties of Agency Heads. (a) With respect to all 
     appropriations laws and other legislation enacted after the 
     date of this order, the head of each agency shall take all 
     necessary steps to ensure that:
       (i) agency decisions to commit, obligate, or expend funds 
     for any earmark are based on the text of laws, and in 
     particular, are not based on language in any report of a 
     committee of Congress, joint explanatory statement of a 
     committee of conference of the Congress, statement of 
     managers concerning a bill in the Congress, or any other non-
     statutory statement or indication of views of the Congress, 
     or a House, committee, Member, officer, or staff thereof;
       (ii) agency decisions to commit, obligate, or expend funds 
     for any earmark are based on authorized, transparent, 
     statutory criteria and merit-based decision making, in the 
     manner set forth in section II of OMB Memorandum M-07-10, 
     dated February 15, 2007, to the extent consistent with 
     applicable law; and
       (iii) no oral or written communications concerning earmarks 
     shall supersede statutory criteria, competitive awards, or 
     merit-based decisionmaking.
       (b) An agency shall not consider the views of a House, 
     committee, Member, officer, or staff of the Congress with 
     respect to commitments, obligations, or expenditures to carry 
     out any earmark unless such views are in writing, to 
     facilitate consideration in accordance with section 2(a)(ii) 
     above. All written communications from the Congress, or a 
     House, committee, Member, officer, or staff thereof, 
     recommending that funds be committed, obligated, or expended 
     on any earmark shall be made publicly available on the 
     Internet by the receiving agency, not later than 30 days 
     after receipt of such communication, unless otherwise 
     specifically directed by the head of the agency, without 
     delegation, after consultation with the Director of the 
     Office of Management and Budget, to preserve appropriate 
     confidentiality between the executive and legislative 
     branches.
       (c) Heads of agencies shall otherwise implement within 
     their respective agencies the policy set forth in section 1 
     of this order, consistent with such instructions as the 
     Director of the Office of Management and Budget may 
     prescribe.
       (d) The head of each agency shall upon request provide to 
     the Director of the Office of Management and Budget 
     information about earmarks and compliance with this order.
       Sec. 3. Definitions. For purposes of this order:
       (a) The term ``agency'' means an executive agency as 
     defined in section 105 of title 5, United States Code, and 
     the United States Postal Service and the Postal Regulatory 
     Commission, but shall exclude the Government Accountability 
     Office; and
       (b) the term ``earmark'' means funds provided by the 
     Congress for projects, programs, or grants where the 
     purported congressional direction (whether in statutory text, 
     report language, or other communication) circumvents 
     otherwise applicable merit-based or competitive allocation 
     processes, or specifies the location or recipient, or 
     otherwise curtails the ability of the executive branch to 
     manage its statutory and constitutional responsibilities 
     pertaining to the funds allocation process.
       Sec. 4. General Provisions. (a) Nothing in this order shall 
     be construed to impair or otherwise affect:
       (i) authority granted by law to an agency or the head 
     thereof; or
       (ii) functions of the Director of the Office of Management 
     and Budget relating to budget, administrative, or legislative 
     proposals.
       (b) This order shall be implemented in a manner consistent 
     with applicable law and subject to the availability of 
     appropriations.
       (c) This order is not intended to, and does not, create any 
     right or benefit, substantive or procedural, enforceable at 
     law or in equity, by any party against the United States, its 
     agencies, instrumentalities, or entities, its officers, 
     employees, or agents, or any other person.
                                                 George W. Bush.  
                                The White House, January 29, 2008.

  Mr. COBURN. Mr. President, I appreciate the indulgence of the Senator 
from Vermont, and I yield back.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I ask unanimous consent that also as a part 
of this colloquy be printed in the Record the letter from the U.S. 
Senate Office of the Legislative Counsel explaining why it is 
technologically impossible for him to incorporate at this time, with 
current software, all the items into the law. That is the problem; 
otherwise, I would be totally agreeable to having every single one of 
these items--the President's items and the add-ons by Congress--made 
part of the law. That is not a problem for me. However, technologically 
it cannot be done at this time. We ought to try to make sure it can be 
done promptly. I ask unanimous consent that the June 4, 2008, letter be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,


                            Office of the Legislative Counsel,

                                     Washington, DC, June 4, 2008.
     Hon. Carl Levin,
     Chairman, Committee on Armed Services, Washington, DC.
       Dear Senator Levin: I am writing in response to your letter 
     of May 22, 2008, inquiring as to whether the Office of the 
     Legislative Counsel has the ability to incorporate the 
     funding tables currently included in the committee report of 
     the defense authorization bill directly into the text of the 
     bill. In short, the Office at this time has neither the 
     technical capability nor the resources to convert the funding 
     tables into the necessary electronic format for direct 
     inclusion in the text of the defense authorization bill.
       The Office of the Legislative Counsel uses highly 
     specialized and customized software to prepare legislation. 
     This software was developed by the staff of the Secretary of 
     the Senate, in cooperation with the staff of this

[[Page S8364]]

     Office and the Government Printing Office. The use of this 
     software serves 2 major purposes: First, it allows the Senate 
     Enrolling Clerk and the Government Printing Office to print 
     legislation directly from our electronic files, eliminating 
     the need to retype and proofread each file; and secondly, it 
     allows the Secretary of the Senate, the Library of Congress, 
     and the Government Printing Office to post legislation on the 
     Internet in an easily searchable format.
       The current version of the software contains a table tool 
     that allows us to include tables in legislation if the tables 
     fit into one of the templates provided in the table tool. I 
     met this past week with the staffs of the Secretary of the 
     Senate and the Government Printing Office and they have 
     concluded that the table tool does not have templates that 
     can be used to prepare all of the funding tables contained in 
     the committee report. In fact, the Government Printing Office 
     currently scans the funding tables as camera copy in order to 
     print the committee report and does not convert the tables 
     into the electronic format that would be necessary to include 
     the tables in legislation. As a result, this Office is unable 
     to prepare or print legislation which includes those tables.
       In addition, even if templates are developed for the table 
     tool, we will not be able to prepare the tables for inclusion 
     in legislation unless the data in the tables can be 
     electronically imported directly into the legislation we 
     prepare. The committee report for the next fiscal year 
     contains at least 180 pages of tables. Since the Office is 
     currently unable to directly import the data in the tables, 
     it would require our staff to spend hundreds of hours to 
     input the data from these tables, proofread the tables for 
     accuracy, and then make any necessary edits. We do not have 
     sufficient staff to do this while continuing to meet our 
     other responsibilities.
       In my opinion, this is really more of an information 
     technology issue than a legislative drafting issue. If the 
     Senate decides to require the text of the funding tables to 
     be included in legislation, the Government Printing Office 
     would need to develop the necessary templates for the table 
     tool and the Committee staff or others preparing the tables 
     would have to conform to uniform standards for electronic 
     formatting of the tables to ensure that the data could be 
     imported directly into legislation,
       Please let me know if I can provide you with any additional 
     information or if you have any further questions regarding 
     this matter.
           Sincerely,
                                                 James W. Fransen,
                                              Legislative Counsel.

  Mr. LEVIN. Now, Mr. President, I ask the Senator from Vermont the 
following question: whether the Senator would be willing to proceed in 
morning business.
  Mr. SANDERS. Yes.
  Mr. LEVIN. I thank the Senator.

                          ____________________