[Congressional Record (Bound Edition), Volume 148 (2002), Part 17] [Senate] [Pages 22816-22818] [From the U.S. 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. 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 [[Page 22817]] 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. 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 [[Page 22818]] 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. ____________________