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[Congressional Record: November 19, 2002 (Senate)]
[Page S11358-S11374]
From the Congressional Record Online via GPO Access []

                 HOMELAND SECURITY ACT OF 2002--Resumed

  The ACTING PRESIDENT pro tempore. The clerk will report the bill by 
  The legislative clerk read as follows:

       A bill (H.R. 5005) to establish the Department of Homeland 
     Security, and for other purposes.


       Thompson (for Gramm) Amendment No. 4901, in the nature of a 
       Daschle (for Lieberman) Amendment No. 4911 (to Amendment 
     No. 4901), to provide that certain provisions of the Act 
     shall not take effect.
       Daschle (for Lieberman) Amendment No. 4953 (to Amendment 
     No. 4911), of a perfecting nature.

  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 10:30 a.m. shall be divided, with 30 minutes under the control of 
the two leaders or their designees, and 30 minutes under the control of 
the Senator from West Virginia, Mr. Byrd.
  The ACTING PRESIDENT pro tempore. The Senator from West Virginia is 
  Mr. BYRD. Mr. President, how much time do I have under the order?
  The ACTING PRESIDENT pro tempore. The Senator has 28 minutes.
  Mr. BYRD. I thought I had 30 minutes.
  The ACTING PRESIDENT pro tempore. The Senator from Nevada asked that 
the time in the beginning be charged to both sides.
  Mr. BYRD. OK. That is fair enough.
  Mr. President, many Senators feel that they are under great pressure 
from the administration to pass this bill that is before us--a bill 
that contains 484 pages. Here it is. This is the 484-page bill that was 
passed by the House of Representatives--a new bill, passed by the House 
quickly, without adequate debate, dumped into the laps of Senators, and 
we contributed to our own problem by invoking cloture on the amendment 
last Friday. We are coming around the final lap of our 30-hour journey 
now. We have been unable to call up any amendments, other than the 
pending amendment by Mr. Daschle and Mr. Lieberman.
  As I say, many of our colleagues feel they are under great pressure 
from the administration to support this bill, and the White House is 
attempting to say that by adopting the amendment offered by Mr. Daschle 
on behalf of Mr. Lieberman--the White House would have us believe and 
the Republican-controlled House would have Members believe that if this 
amendment by Mr. Daschle is adopted, this would mean the death of the 
bill. Well, I would hope that were true because I think this is a 
terrible bill. It has some good provisions in it, but it is a bad bill. 
So personally, I would hope that were true. But it is not true.
  The House has a duty to return. The House has dumped this bill into 
the laps of the Senate and then walked away, gone home for 
Thanksgiving, gone home for Christmas, gone home for the year--if it 
can get by with it. But the House has a duty to come back and finish 
its work. So I hope Senators will not be moved, will not be pressured 
into believing that the adoption of this amendment will kill the bill. 
That is untrue.
  Congress has not adjourned sine die yet. So we all have a duty to 
stay here and do our work.
  I think we are going to get a pay raise very soon--perhaps early next 
year--and so we can stay around and do our work. It is our duty to the 
people. We ought to try to improve this bill, and the amendment by Mr. 
Daschle will do that.
  Do those who believe that the President--whatever party he is, 
Democrat or Republican--do those who believe that he is king under our 
Constitution--apparently some Senators here vote as though they think 
the President is king, although they know better than that. But still 
they believe they have to follow the President's direction.
  The President did not bring any of us here. The President did not 
elect any of the Members of this body. This is an independent body. 
This is an independent branch of Government. This is a separate branch 
of Government. No President elects any Member of this body. The 
President is just the Chief Executive of the land. I say ``just.'' It 
is a tremendous office, of course, with great power, but he is no king. 
And we are not sent here by our people to let the President or the 
White House or any party control us or dictate to us.
  As a reminder of what a true Senator should be, I call attention to 
that ancient Roman Emperor whose name was Vespasia. He was Emperor of 
the Roman Empire from the years 69 to 79 A.D. A great Senator, one of 
the truly great Senators, was Helvidius Priscus.
  For some reason, this Senator and the Emperor Vespasia got at cross-
purposes, and the Emperor stopped Helvidius Priscus one day outside the 
Roman Senate and told him not to come in. ``You can forbid me to be a 
Senator,'' said Helvidius Priscus, ``but as long as I am a Senator, I 
must come in.''
  ``Come in then and be silent,'' said the Emperor Vespasia.
  ``Question me not, and I will be silent,'' responded the Senator.
  ``But I am bound to question you,'' said the Emperor Vespasia.
  ``And I am bound to say what seems right to me,'' responded the 
  ``But if you say it, I will kill you,'' the Emperor warned.
  ``When did I tell you that I was immortal? You will do your part, and 
I will do mine,'' responded the Senator. ``It is yours to kill and mine 
to die without quailing.''
  So both did their parts. Helvidius Priscus spoke his mind. The 
Emperor Vespasia killed him.
  In this effeminate age, it is instructive to read of courage. There 
are Members of the Senate and House who are terrified, apparently, if 
the President of the United States tells them, urges them to vote a 
certain way, which may be against their belief.
  So in this day of few men with great courage--relatively few--let us 
take a leaf out of Roman history and remember Helvidius Priscus.
  The Senate has rolled over with regard to the homeland security bill. 
The administration has sold a bill of goods to the American people that 
there is an

[[Page S11359]]

urgency for the Senate to pass this bill before another terrorist 
attack. There is no such urgency. The real danger is not when the 
reorganization will take effect but whether the reorganization will 
distract our homeland security agencies from their primary mission of 
protecting the homeland.
  The Senate shares in the complicity in pushing this sense of urgency 
on the American people. The people who will be protecting the public, 
those who will be protecting us, Members of the House and Senate, once 
this reorganization is completed a year from now--a year from the date 
of passage of this legislation--are the same people who are out there 
on the northern border right now, right today. They were there last 
night. The same people are already on the southern border. They are 
already at the ports of entry. They are guarding the Atlantic coast. 
They are guarding the Pacific coast. They are guarding the gulf coast. 
They are the same people then who are out on those posts of duty now. 
So whether or not we pass this bill does not mean a great deal insofar 
as the safety of the American people is concerned.
  The Appropriations Committee of the Senate and the Senate itself have 
provided funds for the protection of this country, billions of dollars, 
which have been turned down by the President of the United States. He 
has rejected these funds. He did so earlier this year when Congress 
passed an appropriations bill, making $5.1 billion available for use, 
with only the flourish of a pen necessary on the part of the President.
  These were designated as emergency funds by the Congress, but the 
President refused to likewise designate these items as emergency funds. 
So those funds have gone begging. Do not let anybody tell you we have 
to pass this bill in order to have the security of this country 
tomorrow or next week or the next month. The moneys have been there to 
provide homeland security for the American people. Those funds have 
been passed by this Congress months ago. This President--this President 
who is urging the Congress to act quickly on this bill--has not acted 
quickly on those funds. As a matter of fact, he has turned the back of 
his hand to those funds.
  The Senate shares complicity in pushing this sense of urgency on the 
American people. Senators have pushed it so often and so hard that they 
now believe it. Last Friday, the Senate invoked cloture on the bill 
that is before the Senate, a bill that it had hardly read.
  Most Senators, I believe, had not read that bill at that time. I had 
not been able to read the whole bill at that time.

  This cloture limits the ability of the Senate to debate and offer 
amendments. We had 30 hours. What happened? One amendment is offered. 
Mr. Daschle offered one amendment on behalf of Mr. Lieberman. That was 
it. The whole 30 hours have been spent on that one amendment. Our 
Republican friends deemed it so, to have one amendment. You are going 
to spend the whole 30 hours on it. That is the only amendment you are 
going to have.
  So Senators can now read it and weep. They voted to invoke cloture on 
themselves and they denied themselves the possible opportunity to offer 
other amendments. Senators no longer cared what bill passed as long as 
they voted for something that would create a new Homeland Security 
Department. In the process of trying to build a Homeland Security 
Department, this Senate has come dangerously close to building a 
massive chamber of secrets. This past weekend, Homeland Security 
Director Tom Ridge appeared on several of the Sunday morning talk shows 
to assuage concerns that the administration is planning to create a new 
domestic spy agency in the United States. When asked about his trip to 
London to study the British model domestic spy agency, Governor Ridge 
said his trip was very revealing, but that the administration was not 
likely to create such a domestic spy agency in the United States.
  I must give Homeland Security Director Tom Ridge an A+ for invoking 
the Constitution. He mentioned the Constitution more than once. I 
compliment him on that. That is the first administration official that 
I have heard say anything about the Constitution in all of these 
debates with respect to the war on Iraq, the Iraq resolution, and with 
respect to homeland security. I am sure something could have been said 
that escaped my attention. I cannot hear every administration official. 
But for once the U.S. Constitution was mentioned--more than once--by 
Mr. Ridge. I almost stood in my family room and applauded him for doing 
  A number of Senators appeared on the Sunday morning talk shows and 
assured the show's viewers that, if such a domestic agency were 
created, the Congress would exercise appropriate oversight to ensure 
that abuses of power did not occur within it.
  I remember hearing these same kinds of comments with regard to the 
creation of a new Homeland Security Department. ``A new Department 
won't solve anything,'' said the White House spokesman. That was not 
too long ago. The White House spokesman said a new Department would not 
solve anything. Then to everyone's surprise, the President suddenly 
made the creation of a new Homeland Security Department his top 
  The President sought broad authority in the plan he presented to the 
Congress. He wanted the authority to reorganize and run this new 
Department with limited congressional interference. He wanted to hide 
decisionmaking within the new Department from the American public and 
the press. He wanted what he called ``managerial flexibility'' to waive 
statutory protections, for example, for Federal employees within the 
new Department. He wanted to free himself from as much congressional 
oversight as possible.
  Members of Congress said they would exercise appropriate oversight to 
ensure this new bureaucracy could be reigned in, but what has the 
Senate actually done? What can it point out in all of these months and 
weeks of consideration? This homeland security bill authorizes this new 
Department to cloak its actions in secrecy. The President's plan, for 
example, for reorganization of this Department, has not been sent to 
the Congress. The President probably doesn't even know himself yet what 
he plans. He has several months in which to do that. Even then, the 
plan will not require congressional approval. The Congress will be 
informed by the President what the plan is under this bill. That is it. 
Just inform us, Mr. President. Let us know what you will do. No 
approval is required of Congress. So we are going to be a pig in a poke 
here. We are going to approve the President's plan in advance. Even 
before he knows what is in his plan, before he sends it to the 
Congress, we are going to approve it when this bill before the Senate 
is passed.

  It provides broad new authorities to the President without any real 
mechanism to ensure that those powers are not abused. I sought to offer 
an amendment earlier when Mr. Lieberman brought his bill from his 
committee when he and Mr. Thompson had worked in the committee to bring 
out a bill and did bring out a bill. I sought to amend it so as to keep 
Congress in the loop with respect to the President's organizational 
plan. I sought to have Congress continue to stay in the mix. But that 
amendment was rejected. It would have been well to have had such an 
amendment because it would have provided for an orderly process in the 
filling in of the Department by the various agencies. I understand 
there are about 28 agencies and offices that will go into the 
Department. Even Mr. Lieberman, the author of that, one of the authors 
of the bill, and he is here in the Chamber, even he voted against my 
  Today I think that amendment would help. If that amendment had been 
adopted, I think it would have assured the American people that their 
elected Representatives in Congress were going to stay in the mix, and 
it was not going to relegate itself to the sideline. But that is water 
over the dam.
  This legislation allows the President to rewrite the civil service 
code for Federal workers within the new Departments so that most new 
rules go into effect without any congressional approval. Congress has 
rolled over on almost every issue that would have provided the Congress 
with some oversight mechanism and the public with some transparency.
  So here we are, on this day, we are going to vote in all likelihood 
on final passage, and the Congress has done precious little to make 
sure that appropriate safeguards are included in the

[[Page S11360]]

legislation to protect the privacy rights and civil liberties of the 
American public. What is more, we have endangered the constitutional 
doctrines of the separation of powers and checks and balances between 
the President and the Congress.
  What do we hear from supporters of the bill? The American people 
should trust the President, they should trust their elected leaders to 
ensure the mass of new bureaucracy will not intrude upon their private 
lives. How can Senators make such arguments? The administration has 
told us it is not planning to create a new domestic spy agency in the 
United States. Yet within this bill, this language would fund the total 
information or authorize funding of this total information awareness 
program that is being developed by the Pentagon, apparently for one 
purpose: to peer into the daily transactions and private lives of every 
  I urge Senators to vote for this amendment. I hope they will vote for 
it, and I hope they will not be cajoled by disingenuous arguments that 
a vote for the amendment is a vote against the homeland security bill. 
I don't buy that argument. If we amend this bill, it is beyond our 
control in the Senate, but it is the Senate's last chance to show the 
American people that we are serious about placing some controls over 
this massive new bureaucracy.

  I hope the Senate will support the amendment, and I urge its 
  How much time remains?
  The PRESIDING OFFICER. The Senator has 5 minutes.
  Mr. BYRD. I thank the Chair. I reserve my 5 minutes.
  The PRESIDING OFFICER. The Senator from Connecticut
  Mr. LIEBERMAN. May I inquire how much time the majority leader or his 
designee has?
  The PRESIDING OFFICER. Twenty-eight minutes.
  Mr. LIEBERMAN. I ask the Chair notify me when I have consumed 15 
minutes so I can preserve the rest for the majority leader.
  The PRESIDING OFFICER. The Chair will do so.
  Mr. LIEBERMAN. Mr. President, I rise to voice my support for the 
motion to strike which Senator Daschle and I and others have 
  I do so, as my colleagues know, believing deeply in the urgent need 
for a Department of Homeland Security and believing deeply that the 
vast majority of the underlying bill rises to the difficult and 
critical challenge of organizing and equipping our Government to 
protect the American people from terrorism. Of course, there are parts 
of the bill that I wish had been somewhat different, but in the nature 
of the legislative process one never achieves everything one wants, and 
that goes particularly to the long-debated sections on the rights of 
Federal workers whom we will now ask to carry out the work of the 
Homeland Security Department.
  But on balance, the core of this bill is not only urgently necessary, 
it is good. The core of the bill is smart, and the core of the bill is 
vital. But I must register my strong opposition to a number of 
provisions in the bill that now appears before us that have been 
inserted at the last moment and that threaten to do serious damage to 
this otherwise urgently necessary piece of legislation. I fear that 
some of our colleagues have seized upon the likely passage of this bill 
as an opportunity to load it up with unwise, inappropriate, and hastily 
considered provisions, many of which protect special interests. That is 
a shame, and it is an embarrassment.
  A common cause as urgent and weighty as homeland security post 
September 11, 2001, should not be tainted by a bevy of last-minute 
favors, surprises, and slapdash attempts to address controversial 
problems, some of which are totally unrelated to homeland security. 
That should not be the way business is done in the Congress of the 
United States, especially not with so profound an underlying 
responsibility as protecting the American people from terrorism.
  Let me dispense with two myths that have reared their heads on the 
floor of the Senate during this debate on the motion to strike. First, 
some opponents of the amendment have suggested that to alter the 
underlying bill in any way would be to kill homeland security 
legislation in this 107th session of Congress. That is just not right. 
The House passed a new homeland security bill, numbered H.R. 5710, 
which means they will have to return to act on the version of the bill 
sent to them by the Senate whether or not we make any changes. So we 
are certainly not killing this bill for this session. We are simply 
trying to clean it up.
  Second, some of my colleagues are saying that a vote for this motion 
to strike is a vote against the President. That, unfortunately, reminds 
me of what became a familiar refrain in some States during the recently 
concluded elections, in which some seemed to suggest that any 
opposition to anything the President wanted was unpatriotic. Here is 
where I borrow from Senator Byrd in saying that the President is the 
President, not the king. And to question the President's judgment on 
one or another matter should not be described as a lack of patriotism. 
It is through free discussion and exchange of ideas that our Nation 
grows and that we have always believed we would achieve the truth. Was 
it Voltaire who said: I disagree with everything you said but will 
fight to the death to protect your right to say it? So, too, here.
  I believe deeply that the seven extraneous provisions our amendment 
targets have hurt this bill, and that is why we are striking them. Six 
would be struck, and a seventh would be amended. None of these 
provisions goes to the heart of the Department that I believe so 
urgently should be created. I certainly would not want to do that, 
since Senator Specter and I and so many others of both parties have 
spent, now, more than a year in trying to achieve the creation of such 
a Department.

  Let me speak about a few of the seven serious shortcomings in this 
current version of the homeland security legislation that our amendment 
would strike. First, the one that has received the most attention, is 
the one that attacks the childhood vaccine liability. This bill 
includes a surprise provision, one that was not in any version of 
homeland security legislation, and we have gone through, by my count, 
at least six versions: The original bill I cosponsored with Senator 
Specter in October 2001; the Governmental Affairs Committee reported-
out bill in May; the President's proposal in June; the revised 
Governmental Affairs bill in July; the original House bill; and the 
original Gramm-Miller substitute. None of these contains this 
legislation which would dramatically alter the way certain vaccine 
preservatives are treated for liability purposes under the law.
  As my colleagues have said, the bill would take complaints about 
vaccine additives out of the courts and require them to be made through 
what is called the Federal Vaccine Injury Compensation Program, which 
handles other vaccine-related claims. Incidentally, these provisions of 
the bill are retroactive, which would mean that a host of existing 
lawsuits would be interrupted, probably terminated, including claims 
involving the mercury-based preservative Thimerosal, which some have 
charged is related to autism in children.
  This is just plain unfair. In the past, I have supported various tort 
reform or liability protections for companies--certainly the ones that 
design and manufacture lifesaving products. In 1998, for instance, 
Senator McCain and I sponsored, and the Senate passed, the Biomaterials 
Access Assurance Act. In this Congress, I introduced a bill that would 
offer a comprehensive package of incentives to biotech and 
pharmaceutical companies that develop vaccines, antidotes, and other 
countermeasures for biological and chemical weapons, a package that 
included liability protections. But this amendment would strike a 
provision in this bill that goes well beyond that and ought to be 
pulled out of the underlying bill.
  The fact is that committees of the House and Senate have been 
struggling to reach a consensus on this question of the childhood 
vaccines and liability for some period of time now. They have been 
trying to craft a broad and balanced bill on childhood vaccines. This 
provision in this bill, which we would strike, would pull the rug right 
out from under the committee deliberations, offering a quick but unfair 
answer that is sure to do more harm than good.

[[Page S11361]]

  I received late last night--and we are going to try to distribute it 
to our colleagues this morning--a Dear Colleague letter from our friend 
and colleague in the other body, Dan Burton, chairman of the House 
Committee on Government Reform, really crying out to us to strike from 
the underlying bill this provision on childhood vaccines. Congressman 
Burton, to whom I have spoken, believes passionately that this is a 
terrible mistake and very unfair. I am far from expert on this question 
and cannot vouch for all that Congressman Burton asserts, but his 
passion cries out from this letter and I wish to cite several excerpts 
to illustrate the depth and complexity of this debate. For instance, 
Congressman Burton says:

       During the past 24 hours, a number of incorrect statements 
     have been made about the vaccine provisions in the Homeland 
     Security Act. The facts are simple. These provisions severely 
     restrict the legal rights of parents who believe their 
     children have suffered neurological damage due to vaccines. 
     The scientific debate remains unresolved. These provisions do 
     not belong in the Homeland Security Act. I hope the following 
     points will help separate fact from fiction.

  Again, from Dan Burton:

       In 2001, the respected Institute of Medicine concluded that 
     a connection between thimerosal and autism, while unproven, 
     is ``biologically plausible.'' The IOM called for further 
     research, stating, ``the evidence is inadequate to accept or 
     reject a causal relationship between exposure to thimerosal 
     from vaccines and neurological developmental disorders of 
     autism, ADHD, and speech and language delays.''

  Another fiction, according to Congressman Burton, is that the 
sections that we intend to strike with our motion from this underlying 
bill do not eliminate the rights of vaccine-injured individuals to sue 
manufacturers of vaccines and their components. Congressman Burton says 
proponents of these provisions have stated that once individuals have 
gone through the Vaccine Injury Compensation Program, they can still 
choose to file a civil lawsuit. And Congressman Burton feels very 
strongly that is wrong. As he says as a fact, ``for many families who 
believe their children were injured by mercury-based Thimerosal, these 
provisions do eliminate their right to file suits. The Vaccine Injury 
Compensation Program has a narrow 3-year statute of limitations. 
Because many families were unaware of the program, they were unable to 
file a petition on time. Sections 1714-1717, which we would strike, 
take away their only remaining legal recourse.''
  I would add that I have received today a statement of opinion from 
the staff of the Senate Finance Committee which points out another 
problem. It states, ``the Joint Committee on Taxation has advised the 
Committee on Finance that absent changes to the Internal Revenue Code, 
these changes would not be effective to change the approved 
disbursement purposes from the Fund.''
  In other words, by keeping this childhood vaccine provision in this 
homeland security legislation, we would not only remove the families' 
rights to sue, we would force them to go to the compensation fund. But 
barring additional changes in the law, they couldn't receive any funds 
from that fund.
  This is not only wrong but shows how quickly and hastily and 
incompletely this provision was put together.
  Congressman Burton's words speak loudly to us of how critical it is 
to strike this provision from the law.
  Some of our colleagues have tried to make the case that the 
provisions are necessary to maintain a plentiful vaccine supply in case 
of a bioterror attack, including a smallpox attack. Wrong. This has 
nothing to do with those bioterrorism provisions of the law, including 
one that provides liability protections for the makers of smallpox 
  Our motion to strike doesn't touch those provisions. It only goes to 
the childhood vaccine rights of families of children who are suffering 
from autism.
  I also want to strongly refute the suggestion about this part of our 
motion to strike by the senior Senator from Texas that we will suddenly 
have to throw away all of our smallpox vaccine doses if we strike this 
narrow provision. With all respect, that bears no relationship to the 
amendment. The Vaccine Injury Compensation Program doesn't cover claims 
against smallpox vaccine or any other vaccine used in the fight against 
terrorism--bioterrorism in this case. Moreover, Thimerosal has not been 
used at all since 1999, and the NIH confirms that none of the stores of 
smallpox vaccine nationwide contain it.
  Excuse the pun on a serious matter, but this provision is an 
additive, and it is a harmful additive that ought to be removed from 
the bill by this motion to strike.
  We in the Senate owe the parents, the children, and frankly, the 
companies on all sides of this issue a serious solution--not some last-
minute patchwork change in the law which deprives people of their 
  Second, another extremely problematic provision our amendment and 
motion to strike would remove is the one involving companies that shift 
their headquarters offshore to avoid paying American taxes and then 
turn around and seek to do business with the Federal Government.
  The ACTING PRESIDENT pro tempore. The Senator has used 15 minutes.
  Mr. LIEBERMAN. Mr. President, I ask you to let me know when I have 
consumed an additional 3 minutes, and then I will yield the floor.
  Mr. President, this is the amendment to our committee bill that was 
offered by our esteemed colleague, our dear friend, the late Senator 
Paul Wellstone, and accepted by the Senate, which would have barred 
companies that set up offshore tax havens from getting Federal homeland 
security contracts with the Secretary of the Department retaining the 
singular important right to waive the prohibition for national security 
reasons. Now the underlying bill, at the last minute, would essentially 
nullify Senator Wellstone's provision by expanding the list of criteria 
the Secretary can use in granting a waiver beyond national security 
reasons to include a host of other provisions that gut the Wellstone 
  It is just wrong that companies that are going out of the way to 
circumvent the tax laws of the United States should be allowed to do 
business and basically to get the money that the taxpayers who pay 
their taxes have put into the Treasury of the United States, unless 
there is a national security reason that would be so. Our amendment 
would strike that provision as well.
  Our amendment would also move to strike from the bill a measure that 
would require the Transportation Security Oversight Board to ratify 
within 90 days emergency security regulations issued by the 
Transportation Security Agency. If the oversight board does not ratify 
the regulations, under this bill, they would automatically lapse. 
Despite the TSA having decided that they are necessary, 90 days later, 
lacking the Board's approval, they'd disappear.
  This doesn't make any sense. In the current climate, shouldn't we be 
trying to find new ways to expedite and implement TSA rules, not ways 
to disrupt and derail them? This bill is contrary to new procedures 
that the Senate passed just a year ago in the aviation security bill. 
Under that law, regulations go into effect and remain in effect unless 
they are affirmatively disapproved by the Board. I think that's a 
better system.
  My esteemed colleague from Texas, Senator Gramm, has claimed that our 
amendment would strike from the underlying bill the one-year extension 
of the deadline by which all airlines must install new security 
scanning equipment. I don't know whether he got that idea based on this 
provision or not; regardless, he is mistaken. We keep that extension in 
tact, and striking the new cumbersome approval process, as our 
amendment seeks to do, would have no effect whatsoever on it.
  I urge my colleagues to strike this provision.
  Another provision would extend liability protection to companies that 
provided passenger and baggage screening in airports on September 11.
  But we in the Senate already decided against extending such liability 
protection--in at least three different contexts. First, the airline 
bailout bill limited the liability of the airlines--but not of the 
security screeners, due to ongoing concerns about their role leading up 
to September 11. Then, the conference report on the Transportation 
Security bill extended the liability limitations to others who might 
have been the target of lawsuits, such as aircraft manufacturers and 
airport operators, but again not to the baggage and passenger 

[[Page S11362]]

  The earlier Gramm-Miller substitute and the bipartisan Governmental 
Affairs Committee-approved legislation also left this provision out for 
the very same reasons.
  Now, somehow, this provision is back again. Like that little mole you 
hit with the mallet in a whack-a-mole game, somehow this provision has 
reappeared. At this late hour, in this context, it is just 
inappropriate to reverse the Senate's carefully considered judgment 
without clear justification.
  We must strike this provision.
  Another unnecessary and overreaching provision our amendment seeks to 
strike would give the Secretary of the new Department broad authority 
to designate certain technologies as so-called ``qualified anti-
terrorism technologies.'' His granting of this designation--which 
appears to be unilateral, and probably not subject to review by 
anyone--would entitle companies selling that technology to broad 
liability protection from any claim arising out of, relating to, or 
resulting from an act of terrorism, no matter how negligently--or even 
wantonly and willfully--the company acted.
  The bill goes well beyond what Republicans were advocating just last 
month in the Gramm-Miller substitute, which would have provided sellers 
with indemnification, but wouldn't have left many victims without any 
compensation at all, as this bill does. This bill seems to say that in 
many cases, the plaintiff can't recover anything from the seller unless 
an injured plaintiff can prove that the seller of the product that 
injured him or her acted fraudulently or with willful misconduct in 
submitting information to the Secretary when the Secretary was deciding 
whether to certify the product.
  Even in cases where a seller isn't entitled to the benefit of that 
protection, the company still isn't fully--or in many cases even 
partially--responsible for its actions, even if it knew there was 
something terribly wrong with its product . Let me say that again. This 
bill gives protection even to those sellers who knowingly put anti-
terrorism products on the market that they know won't work to keep 
people safe against an attack. Perhaps worst of all, this measure would 
cap the seller's liability at the limits of its insurance policy. In 
other words, if injured people were lucky enough to get through the 
first hurdle and even hold a faulty seller liable, they still could go 
completely uncompensated even if a liable seller has more than enough 
money to compensate them.

  Again, I ask, is this really the kind of provision we want to fold up 
and cram into this vital legislation? I urge my colleagues on both 
sides of the aisle to stop, carefully consider the consequences, and 
then vote for our amendment, which would strike this provision.
  The substitute bill also unwisely and unnecessarily allows the 
Secretary to exempt the new Department's advisory committees from the 
open meetings requirements and other requirements of the Federal 
Advisory Committee Act (FACA). I am well aware that this isn't a 
provision that will get big headlines but it ought to raise some 
  Agencies throughout government make use of advisory committees that 
function under these open meetings requirements. Existing law is 
careful to protect discussions and documents that involve sensitive 
information in fact, the FACA law currently applies successfully to the 
Department of Defense, the Department of Justice, the State Department 
even the secretive National Security Agency.
  So why should the Department of Homeland Security alone be allowed to 
exempt its advisory committees from its requirements? Why should its 
advisory committees be allowed to meet in total secret with no public 
  Again, if those rules work for the Department of Defense and the 
National Security Agency, I think they can work for the Department of 
Homeland Security.
  What is the harm? Conceivably, this could allow the Secretary to 
create forums that operate in secret in which lobbyists for various 
special interests could advance their agendas and get back channel 
access with this and future Administrations, without concern that the 
public would ever find out--and that's regardless of whether their 
discussions were about security, business, or anything else. I am not 
suggesting that this is what the Administration intends, or what the 
authors of the bill intend, but the danger is real and must be 
  We all say, and say often, that we're for ``good government''--for 
openness, integrity, and accountability. But if we pass this bill 
unamended, few of us will be able to say with confidence that the new 
Department's advisory committees are designed to be as independent, 
balanced, and transparent as possible. I know full well that the 
Homeland Security Department will deal with sensitive information 
involving life and death, but so does the National Security Agency. So 
does the FBI. So does the Department of Defense. Their advisory 
committees aren't allowed to hide themselves away from the public.
  I hope my colleagues join with me to reject this unfortunate and 
short-sighted provision.
  Finally, our amendment would alter a provision in the substitute bill 
creating a university-based homeland security research center. Now, I 
have nothing against creating a university research center focused on 
homeland security.
  There are currently many effective university center programs--
centers for expertise and excellence--established through competitive 
processes by the National Science Foundation and other science 
agencies. And the science and technology division in this homeland 
security bill closely tracks what we proposed in the legislation that 
came out of the Governmental Affairs Committee--which would give the 
Department many exciting new tools to harness talent in our 
universities and companies and focus it on meeting the unprecedented 
challenge we face to out-think and out-innovate our enemies.
  But there is a problem with this particular proposal as it is 
written. Based on the fifteen criteria outlined in the bill, the 
research center that it would create is described so narrowly, through 
fifteen specific criteria, that it appears Texas A&M University has the 
inside track, to say the least, to get the funding and house the 
center. House aides have admitted as much to The Washington Post.

  Texas A&M is a fine school that may be perfectly suited to run such a 
federal research center--but there are many other fine schools that may 
also be well suited to run a homeland security research center, and 
Congress should not predetermine the best site.
  Science in this country has thrived over the years because, by and 
large, Congress has refused to intervene in science decisions. Science 
has thrived through peer review and competition over the best 
proposals--which are fundamentals of federal science policy. We are 
violating them here. This is nothing short of ``science pork.''
  This provision was strongly opposed by the Chairman of the House 
Science Committee. And it has been roundly criticized by the university 
community as an inappropriate Congressional intervention in science 
program selection.
  My friend, the Senator from Texas, has suggested that a few other 
institutions conceivably could assemble the qualifications to meet the 
15 criteria that Texas A&M has specified. But I urge him to look at the 
list, which is breathtaking in the particularity of its detail. And 
even if a handful of schools might meet in theory these requirements, 
that does not solve our problem. We face grave dangers here, lives are 
at risk. We should all agree that we need to apply the most competitive 
possible process, the one that brings our best scientific brainpower 
brought to bear on this problem.
  Suppose for the sake of argument that a few other schools technically 
do qualify. Then think about the agency employee, sitting at his desk 
at the new department, who receives the application from Texas A&M. A&M 
meets all the criteria specified in the statue, and meets them to a 
tee. The employee knows that Representative DeLay wants this done. 
Realistically, how do we think this decision will turn out? We know how 
it will turn out.
  When it comes to making these research funding decisions, we need a 
playing field that is truly level--not one that only looks level when 
you tilt your head.
  Perhaps that is why previous versions of this bill were wise enough

[[Page S11363]]

not to include this provision. The bipartisan Senate Governmental 
Affairs Committee bill did not make this mistake. Nor did Senator Gramm 
include them in his earlier Gramm-Miller substitute. I have worked over 
the years on science policy issues and legislation with Senator Gramm, 
and I hasten to point out that this provision certainly did not 
originate with him. He has a strong understanding of the importance of 
strong science to our nation's economic and social well-being, of 
strong federal support for science, and of the need for competitive 
funding decisions that are based on sound peer review. These provisions 
did not originate with him.
  Our amendment keeps the university-based science center program. 
However, it removes the list of highly-specific criteria that appear to 
direct it to a particular university. That is the way we will get the 
best science, not by making Congressional allocations to particular 
  I was under the impression that this homeland security bill would be 
clean. What does that mean? That it wouldn't be, for lack of a better 
word, mucked up with lots of extraneous provisions that are marginally 
relevant or irrelevant to the central mission of this department, which 
of course is protecting the American people from Twenty- first Century 
terrorism with every ounce of talent, every tool, every technology at 
our disposal.
  I understand the legislative process. I know that, as a wise person 
once said, compromise is what makes nations great and marriages happy. 
I did not expect this substitute bill to look exactly like the 
bipartisan bill approved by the Governmental Affairs Committee I am 
privileged to chair.
  But I did expect that this bill would be clean--and clean it is not. 
I believe passionately in the need to create a Homeland Security 
Department. And I recognize and appreciate the many good things in this 
bill. It has moved much closer to our vision of how to combine our 
strengths and minimize our weaknesses on intelligence to protect the 
American people from terrorism. So too has it embraced our creative and 
comprehensive vision of the new Department's science and technology 
division. And when we step back and look at the big picture, it looks 
pretty good. And more important than looking good, it looks and is 
necessary to protect the American people.
  But these flaws are real. They are serious. And they are utterly 
  Luckily, they are easy for us to fix. One amendment, one vote. I once 
again urge my fellow Senators to pass this amendment.
  There are other colleagues who wish to speak. I would, therefore, ask 
for the support of my colleagues for the motion to strike.
  The ACTING PRESIDENT pro tempore. The Senator from Louisiana.
  Mr. BREAUX. Mr. President, what is the time situation?
  The ACTING PRESIDENT pro tempore. There are 10 minutes 20 seconds 
remaining to the majority leader or his designee.
  Mr. BREAUX. Mr. President, I rise to indicate my support for two 
things: No. 1, for the homeland security legislation which I think is 
very important. We fought for weeks about what it was going to look 
like. We made some suggestions about what should be in the bill with 
regard to worker protections in the area of collective bargaining. The 
White House was not willing to accept our recommendation. And I 
understand that is not going to be possible. I thought that the 
bipartisan recommendation we had on collective bargaining was the right 
way to go. That did not work out. What we have in the bill is what the 
President wanted from the very beginning. I accept that. The concept of 
homeland security bringing these agencies together is very important.
  It is clear that after 9/11 we found out that the Federal Government 
was not working very well together, that agencies were not sharing 
information that they should have been sharing with each other, and we 
could have been doing a much better job.
  Under the leadership of the distinguished Senator from Connecticut, 
Mr. Lieberman, a proposal came about for a homeland security agency. 
Quite frankly, at the very beginning the White House didn't think the 
idea was a good one. They were worried about it creating too large a 
bureaucracy, but they came to the realization that I think all of us 
have come to that, yes, this is in fact the right thing to do. That is 
where we are right now.
  What has happened in the course of this process is interesting but 
not unusual. The House loaded up the homeland security bill with a 
whole bunch of things that were concocted in the middle of the night 
and not the subject of any hearings or not brought through the normal 
committee process and not voted on by the House and not voted on by any 
committee in the Senate and not passed by the Senate.
  But, lo and behold, all of these provisions are now attached to the 
bill, and the House announced that they are going out of town, and take 
it or leave it.
  I understand that some of them may be in Paris or London or Japan or 
doing things that are important. But we are not finished yet. This 
bill--no matter what happens--is going to have to go back to the House 
of Representatives for consideration. It is going to have to go back to 
the House for consideration even if this amendment to strike out these 
add-ons is not adopted because the bill still has to be--after we adopt 
the Thompson substitute--approved by the House. What is wrong with the 
House at that time saying we understand that the Senate is not going to 
accept these provisions and, therefore, we will pass homeland security 
such as the President requested it? The President, himself, in the 
White House said don't load this thing up with unnecessary items.
  I would suggest that having a homeland security research center at 
Texas A&M University is a good idea, if you are from Texas. But how 
about the other 49 States that would like to also participate in the 
process? LSU would make a great center for homeland security research. 
They have already been working on it. But this legislation just cuts 
them out, sticks one university in the process, and says: This is it. 
Take it or leave it. We're gone. We're out of town.

  That is not the way things are supposed to work. It is not the way 
they should work. I hope it will not work that way after we vote this 
  There is nothing wrong with taking these items out of the legislation 
and having the House take the bill up without it and have them pass it. 
They can do it by voice vote. We could finish it this afternoon. The 
President can get the homeland security bill as he has requested. I 
will support that effort.
  I think it is very important to do homeland security, but don't let 
it become a vehicle for special interest provisions which the Congress 
has never considered. I think it is wrong.
  Mr. DORGAN. Will the Senator from Louisiana yield for a question?
  Mr. BREAUX. I am happy to yield.
  Mr. DORGAN. I ask the Senator from Louisiana, is one of the 
provisions you are describing a provision that makes it easier for a 
corporation that has renounced its citizenship, and moved to the 
Bahamas in order to save on its tax bill in the United States, to get 
contracts with the U.S. Government? Is that one of the provisions they 
stuck in at the hour of midnight?
  Mr. BREAUX. The Senator makes a good point. In addition to spelling 
out one university that all of a sudden will get all the work in the 
entire country, the other earmark is it takes away the Wellstone 
amendment, which prohibits contracting with corporate expatriates.
  What does that mean, expatriates? People who have left the country. 
People who said: I don't want to be a citizen of the United States any 
longer. I am taking my business overseas. But, oh, by the way, I would 
still like to do business with the Federal Government while I am in 
another country not paying taxes to the United States.
  That really strikes me as being something we should not allow. I 
think the Senator is correct in pointing it out. That is not the way we 
should do business. If you want to provide homeland security, I would 
suggest giving business to companies that have left the United States 
is not in the interest of homeland security. It may be in the interest 
of the Bahamas, but it is certainly not in the interest of the United 
States of America.
  Mr. DORGAN. If the Senator will yield for one additional question, 
isn't it a fact that the provision that would prevent corporations that 

[[Page S11364]]

their U.S. citizenship in order to avoid paying taxes to the U.S. 
Government--the Senate actually passed a provision that said: Well, if 
you don't want to be an American citizen, then maybe you ought not be 
contracting with the Federal Government. We set a date by which that 
would be the case. That was in the legislation that moved out of the 
Senate. My understanding is it is the case that the House of 
Representatives put one of these special provisions in and said: Oh, we 
don't agree with that. We want to weaken that to make it easier for 
these companies that renounced their citizenship to get U.S. Government 
contracts once again. Isn't that the case?
  Mr. BREAUX. The Senator is exactly right. In order to have homeland 
security, we need to protect the citizens of this country. Giving 
financial assistance to companies oversees that have left this country 
because they don't like to be citizens of the United States is the 
wrong way to do this.

  Let's pass this bill clean. The President will get the homeland 
security bill he desires. He will sign it. I will support it. That is 
the right way to do business.
  Mr. DURBIN. Will the Senator yield?
  Mr. BREAUX. I am trying to save time for Senator Daschle.
  Mr. DURBIN. For just 30 seconds?
  Mr. BREAUX. I will yield.
  Mr. DURBIN. The point was made last week that within this bill is a 
provision that benefits the Eli Lilly Pharmaceutical Company that says 
pending lawsuits brought on behalf of parents who believe their 
children are suffering ill effects from a preservative which the 
company made and put in vaccines, causing harm to these children--
physical and mental harm to these children--that pending lawsuits 
against this pharmaceutical company would be wiped away by the language 
of this homeland security bill.
  Does this amendment we are about to vote on eliminate that provision 
and say that these parents and families and children will still have 
their day in court against this major pharmaceutical company?
  Mr. BREAUX. Just briefly, the Senator is correct in his observation. 
It does exactly that. There may be an argument whereby companies that 
make a vaccine should not be subject to liability suits. There is a 
provision for a fund for people who make vaccinations, that if they are 
being sued, they will recover against a fund. That is current law. But 
that should be prospective, not retroactive. It should not wipe out 
legitimate litigation that has already been filed. It is like saying 
here is a legitimate lawsuit, but all of a sudden, by this action, we 
wipe out all court proceedings against that particular company. That is 
not the right way to proceed.
  The company, as I understand it, did not ask for it, did not lobby to 
put it in this bill, but all of a sudden, here it is, in the middle of 
the night. It should not be in the bill, and this amendment would take 
it out.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Nevada.
  Mr. REID. Mr. President, how much time is left for Senator Daschle 
under the order previously entered?
  The ACTING PRESIDENT pro tempore. Two minutes twenty seconds.
  Who yields time?
  If no one yields time, time will be charged equally to both sides.
  The Senator from South Dakota, the majority leader.
  Mr. DASCHLE. Mr. President, I will use leader time to augment the 
time allotted for me to make some remarks with regard to the amendment.
  The ACTING PRESIDENT pro tempore. There is an order for the 
Republican leader to be recognized at 10 o'clock.
  Mr. DASCHLE. Mr. President, I ask unanimous consent that I be allowed 
to speak and to complete my speech prior to the time the Republican 
leader addresses the Senate.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  Mr. DASCHLE. Mr. President, I did not hear my colleagues speak to one 
of the greatest myths that I have heard in the debate about this 
amendment. That myth is, if we pass this amendment, somehow it makes it 
impossible for us to reconcile this amendment with the House of 
Representatives; that somehow it would put some chink in the process.
  But I think, as my colleagues have noted already this morning, 
regardless or whether this amendment is adopted, this bill must go back 
to the House. There will be another vote in the House. So do not let 
anyone persuade any colleague, any Senator, that somehow there a 
procedural impediment is created if we pass this amendment.
  This legislation will go back to the other body. And when it does, if 
the House does the right thing, they will accept this language, and we 
will send the bill to the President as we should.
  I must say, Mr. President, this has been a difficult debate for many 
of us, a very difficult debate. All of us, of course, want to do the 
right thing. Many of us think perhaps supporting some new 
infrastructure with regard to homeland security is right. We have 
worked and worked and worked to reach a consensus.
  Much of what is in this bill reflects a consensus. But I must say, 
this language, these additions to the bill, added at the eleventh hour, 
is arrogance, is an atrocious demeaning the legislative process. They 
ought to be ashamed of themselves. At the eleventh hour, when nobody 
was watching, when most people had gone home, those people with deep 
political pockets, those people with the resources to make a 
difference, had inserted in this bill items that the House itself had 
already voted against.
  In July of this year, the House voted 318 to 110 to cut off those 
corporations that move offshore to avoid paying taxes--318 to 110, 3 
months ago. They said: If you are going to do that, you will not be 
able to contract with the new Department. You ought to be ashamed of 
yourself. How can you be so unpatriotic?
  They did the right thing in July. But what did they do at the 
eleventh hour? Well, at the eleventh hour, when nobody was watching--
when they thought nobody was watching--they quietly said: We didn't 
mean it. Now the elections are over. Now we will make a mockery of the 
tax law. We will make a mockery of the homeland defense bill. We will 
reopen the treasury to corporate expatriates, thinking nobody could 
possibly call attention to it.
  Mr. President, that is just the beginning. Why would we possibly want 
to give liability protection to a company that made a pharmaceutical 
product that may cause autism in children? Why would we do that?
  Why would we possibly slow down the process by which the new 
Transportation Security Agency issues new emergency rules to protect 
travelers? We do it to help out airlines and other transportation 
companies. That is why we are doing it.
  The House inserted the liability protection for vaccine additives to 
help out a company. The House inserted the expatriate corporate 
exemption to help out a lot of companies with deep pockets. Why would 
the House put a university earmark in the homeland defense bill, 
earmarking Texas A&M for special treatment? Why, because some lobbyist 
got the job done at the eleventh hour. That is why it happened.
  These items make a mockery of the legislative process. Everybody who 
has their fingerprints on these issues ought to be ashamed of 
themselves. We have one opportunity to make it right, and that is in 
about a half hour. We will have an opportunity to strike these, to send 
a bill to the President that better reflects the consensus we have 
worked so hard to achieve. We want to do that; some of us want to do 
that. But I must say, it is a sad day for the legislative process. It 
is a sad day for homeland security. It is a sad day for the 
institutions of the House and the Senate when we can insert language 
such as this unabashed.
  I hope each Senator will think very carefully about the consequences 
of this vote. We ought to feel good about passing this bill. We ought 
to feel good about making some new contribution to reorganizing the 
Government, if indeed that will move us to a better sense of confidence 
about our own security.
  But how do you feel good, how do you feel positive, how do you feel 
that you could in any way explain what the House has done?
  I say to my colleagues in a bipartisan way, let's reject these 
provisions. Let's ensure we send the clearest message

[[Page S11365]]

possible that this kind of legislating will not be tolerated. Let's do 
it now before it is too late. Let's not have to explain this weeks or 
months later. We have the opportunity to rectify bad decisions made at 
the last hour, made without any scrutiny, made without any real public 
attention, made for all the wrong reasons. We can do it today. We can 
do it in a half hour. I urge my colleagues to join us in getting this 
  I yield the floor.
  The PRESIDING OFFICER (Mr. Nelson of Nebraska). The Senator from West 
Virginia still has 5 minutes.
  Mr. BYRD. Mr. President, how much time remains before the vote?
  The PRESIDING OFFICER. The Senator has 5 minutes, and the Republican 
leader has 28 minutes.
  Mr. BYRD. And does the time come out of both Senators, if no 
unanimous consent request is made?
  The PRESIDING OFFICER. A quorum call will be charged to the party who 
suggests the absence of a quorum. If no quorum call is in place, both 
sides are charged.
  Mr. BYRD. Does the distinguished majority leader want more time? I 
would like to give him my remaining time. I don't want to see that time 
whittled away simply because somebody is not taking the floor.
  I ask unanimous consent that I may yield my remaining time to the 
majority leader.
  The PRESIDING OFFICER. The Senator has that right.
  Mr. DASCHLE. Mr. President, I am very grateful to the distinguished 
Senator from West Virginia. I ask unanimous consent that I be 
recognized for that time just prior to the vote.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DASCHLE. I thank the President and thank the Senator from West 
  Mr. BYRD. Mr. President, might I have just 30 seconds of my time 
  Mr. DASCHLE. Mr. President, I yield whatever time the Senator from 
West Virginia may require.
  Mr. BYRD. I thank the Chair. I thank my leader.
  I have just heard from the Budget Committee, CBO has scored the 
vaccine amendment as increasing direct spending by $100 million in the 
first year, $2 billion over 10 years. In other words, it is a gift to 
drug companies by this amount that would increase the deficit by this 
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I suggest the absence of a quorum, reserving 
the final time, as has been indicated in the previous order, to Senator 
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. GRAMM. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAMM. Mr. President, we are reaching the moment where we are 
going to vote on homeland security. I rejoice that we have found our 
way here. It has been a long and difficult debate. I commend to my 
colleagues that they vote for the homeland security bill. There will be 
an amendment that will be offered prior to that bill.
  I yield myself 10 minutes.
  The PRESIDING OFFICER. The Senator has that right.
  Mr. GRAMM. I want to take my 10 minutes to talk about the amendment 
that we will have prior to the final vote. I remind my colleagues that 
over the last weekend, as we tried to bring this 7-week debate toward 
cloture, the President reached a compromise with several of our 
Democrat Members to give additional power and input to government 
employees and their representatives, not the power to veto the 
President's decision but the power to have input, the power to have 
review. Also, to get a bill we could vote on and hopefully conclude 
this debate, we had to meet with Members of the House who had a 
separate bill.
  What we have before us is the old Gramm-Miller amendment with the 
amendments that we adopted; 95 percent of the Lieberman bill is in this 
stack of paper. And then we had to reach an agreement with the House.
  A great harangue has come forth against that final agreement. There 
is an amendment pending that would strike seven provisions. In striking 
those seven provisions, we would endanger the bill and, if we were 
fortunate, we would have a conference in December.
  That is a risk that is not worth taking and, further, I believe the 
bill is a better bill with the seven provisions in it. Let me just 
address them.
  The one that has gotten the most discussion is the provision with 
regard to liability on vaccines.
  Let me state it in the simplest possible form. We have always had 
separate treatment for vaccines because some people react differently 
to vaccines.
  In 1986, we set up a comprehensive program to compensate people who 
are harmed by vaccines that are used for general purposes. We have paid 
$1.6 billion out of that fund. Under that fund, you go through a 
process of arbitration and, if you settle, you settle; if you don't, 
then you can go on to court. The vast majority of people settle.
  A loophole has been found in that process. Plaintiff attorneys are 
now arguing that damage is being done by a mercury derivative, which is 
a preservative in these vaccines. The plaintiff attorneys are arguing 
this preservative is not covered under the compensation program. Nobody 
has proved scientifically one way or another where the harm comes from. 
But plaintiff attorneys have now reached around the arbitration process 
and have filed suits that total 10 times the aggregate value of all the 
vaccine sales in the world combined.
  This bill, recognizing that the stockpiling of new and powerful 
vaccines will be important to the war on terrorism, seeks to close that 
loophole by making it clear in law these preservatives that have always 
been part of vaccines are covered by the current arbitration process.
  Now, many people have tried to label this into everything from a 
political payoff to you name it. We have a process that is working. 
People are satisfied with it. Plaintiff attorneys are trying to go 
around this process. Unless some order is brought to it, we are going 
to end vaccine production in the world. We don't want to do that. This 
is a good government provision that brings this process under the 1986 
act, which was written by Senator Kennedy and Congressman Waxman.
  Now, the second provision--and there are two that are criticized--has 
to do with liability limits. Senator Warner and Senator Allen 
introduced an amendment, which we accepted, that puts the taxpayer on 
the hook for paying any liability that occurs from items produced for 
fighting the war on terrorism. It is something we have done since the 
Civil War to try to indemnify manufacturers that are producing cutting-
edge items that are desperately needed on a time-sensitive basis for 
the war effort. The House had similar language, but with liability 
limits included in the Transportation Safety Act. When it came to a 
choice between the taxpayer being at risk or having previously 
established liability limits, we accepted those liability limits from 
the House bill.
  Another provision that has been criticized is a change in the 
Wellstone amendment. The Wellstone amendment originally said any 
company that has ever been domiciled in the U.S. that is domiciled 
somewhere else cannot sell items to be used in the war on terrorism. We 
thought there had to be some moderation on this language, so we added 
three points. One, if the language produced a situation where you 
actually lose American jobs because a product was produced here, even 
though the company's headquarters is in France, you could have a 
waiver. Two, if you have a sole source bidder and no competition, you 
can have a waiver. And three, if the product is cheaper with higher 
quality, a waiver can be given under those circumstances.
  That is a good government provision. It makes eminently good sense. 
If a company in France is producing something in Cleveland and selling 
it for the war on terrorism, why should we put people in Cleveland out 
of work to buy something produced in Japan by a company that has no 
employees in the United States? It makes absolutely no sense. Those 
waivers represent good government.

[[Page S11366]]

  There are two final provisions in the bill. One doesn't matter, and 
that is advisory councils. I don't know if they have any value or not. 
I don't see jeopardizing the bill to strike them.
  The final provision has been referred to as a ``Texas A&M'' 
provision--a provision I did not write and didn't have anything to do 
with, and it doesn't specifically have anything to do with Texas A&M.
  I have a letter from the University of California supporting the 
provision. I ask unanimous consent that it be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                         University of California,

                                      Office of the President,

                                    Washington, DC, July 25, 2002.
     Hon. Nancy Pelosi,
     Ranking Member, House Select Committee on Homeland Security, 
         House of Representatives, Rayburn House Office Building, 
         Washington, DC.
       Dear Representative Pelosi: As you prepare to vote on H.R. 
     5005, the Homeland Security Act of 2002, the University of 
     California encourages your support for provisions in the bill 
     that aim to strengthen the role of science and technology in 
     the new Department and that ensure that the capabilities of 
     the U.S. Department of Energy's National Laboratories are 
     made available to the new Department. UC supports the 
     establishment of an Under Secretary for Science and 
     Technology and provisions to strengthen the important role 
     that academic research institutions play in protecting our 
       As you are aware, UC is actively engaged in activities 
     associated with homeland security and our nation's war on 
     terrorism, including conducting ongoing research and 
     providing scientific expertise. UC faculty and researchers, 
     including those at the UC managed national laboratories, have 
     testified before Congress, developed bio-agent detection 
     devices, aided in the anthrax clean-up effort on Capitol 
     Hill, and analyzed the World Trade Center structure, among 
     many other activities.
       Section 307 of H.R. 5005 calls upon the Secretary to 
     establish university-based centers for homeland security. 
     This section provides the Secretary with a list of merit 
     contingent criteria from which to base the selection of 
     colleges or universities as centers. The criteria range from 
     strong affiliations with animal and plant diagnostic 
     laboratories to expertise in water and wastewater operations. 
     UC would welcome the opportunity to compete for such an 
     important center. As the public research institution serving 
     the state of California, the ten-campus UC System, with its 
     three national laboratories, is uniquely qualified to address 
     all of the selection criteria. To improve the selection 
     process, UC would like to work with you and the conference 
     committee to ensure that the final version of the legislation 
     provide that the Secretary shall make the designation of 
     university centers with the advice of an academic peer review 
       I commend you for your leadership on this landmark 
     legislation and for your continued service to the people and 
     institutions of our state. If you need further information 
     about the issues raised in this letter, please contact me.
                                                 A. Scott Sudduth,
                                         Assistant Vice President.

  Mr. GRAMM. Mr. President, that provision is similar to provisions we 
have at the Department of the Interior and the Department of Energy. It 
basically says the major research universities in the country will be 
eligible to participate in a center or centers. It also says the agency 
and the President have the power to set up centers and do research 
wherever they want to. This is a provision that provides no money. It 
does say major research universities will be part of the process, but 
it doesn't say they will be the only part of it.
  Let me conclude and then keep the balance of my time, because others 
may need it if I have not used it up. The seven amendments that would 
be stricken by the Daschle amendment are amendments that improve the 
bill. A couple of them didn't have to be there. They do no great harm. 
Five of them improve the bill by dealing with problems directly related 
to terrorism, and they all trace back to a provision, in one form or 
another, that was in both the Senate and House bills.
  I know this is going to be a close vote. I urge my colleagues to vote 
against the amendment, A, on substance--the bill will be better if the 
amendment fails--and, B, I think there is a substantial probability 
that we will not get a bill this year, though we will certainly get one 
next year. It simply would mean a 3-month delay.
  So I urge colleagues to vote no on the amendments and to vote for the 
underlying bill. I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator's time has expired. The Senator 
from Tennessee is recognized.
  Mr. THOMPSON. Mr. President, how much time do the opponents have?
  The PRESIDING OFFICER. Fifteen and a half minutes.
  Mr. THOMPSON. Mr. President, I ask the Chair to notify me at the end 
of the consumption of 7 minutes.
  The PRESIDING OFFICER. The Chair will do so.
  Mr. THOMPSON. First of all, Mr. President, with regard to the 
comments that have been made concerning the inversions, a couple of 
colleagues on the other side said our amendment takes out the Wellstone 
amendment to bar companies who leave the U.S. to evade taxes.
  This doesn't eliminate the Wellstone amendment. That amendment to bar 
the Department of Homeland Security from contracting with inverted 
companies is included in our amendment. What our amendment does, 
though, is give the Secretary of Homeland Security the ability to waive 
the bar if U.S. jobs would be lost, or if it would cost the Government 
more taxpayer dollars because there would be less competition.
  On this issue, I know this is extremely important politically for 
many of our colleagues. When you examine it from the standpoint of 
social policy, or policy as it affects the U.S., it does not bear 
scrutiny. We in the Governmental Affairs Committee, I think on a 
bipartisan basis, over the years have tried our best not to interject 
social policy in our procurement process.
  Our Government needs to be able to get the best and cheapest goods 
for the taxpayers. One can think of many different things companies 
might do that are totally legal, totally proper, that we might 
disapprove of. We wish they were different kinds of companies, had 
different kinds of social policies. But if we say, with regard to all 
of them, that if there would be a new batch every year under 
consideration, we are not going to do business with them, we are going 
to cut off our nose to spite our face, even though their products are 
better, they are cheaper, and we are trying to protect homeland 
security, we are not going to do business with them because we do not 
approve of your policies, even though they are perfectly legal, that 
would hurt this country.

  It is more important to have a viable Homeland Security Department to 
protect this country than it is to make a political point or punish 
some company. We are punishing, in some cases, companies that have 
thousands of domestic employees working in the United States. What we 
would be doing is depriving them of contracting with the Department of 
Homeland Security and allowing a French company or a German company 
that has always been a foreign company, always with foreign employees, 
getting the contract.
  That makes absolutely no sense. However, it apparently is an idea 
whose time is come and is included in the amendment Senator Gramm, 
Senator Miller, and myself offered a while back.
  What we do is this: We do not necessarily agree with the underlying 
policy, but we are going to include it in the amendment. But at least 
let's have some exceptions if it really benefits our country in terms 
of homeland security, our jobs, our costs. Let's give the Secretary the 
discretion to make some exception with regard thereto. It is just 
common sense and it focuses where we need to get, not for short term 
political gain but to punish some company.
  Bermuda, for example, is the home of Intelsat from whom our 
Department of Defense gets satellite services. Do we want to cut 
ourselves off from that? There are not that many companies like that 
around the world. Intelsat is an inversion. Why limit it to homeland 
  Let's get away from the idea of punishing somebody or punishing some 
company when it hurts our country to do so. It does not say you have to 
do business with them. It says let them compete. We are not giving them 
anything if it is not the best thing for our country. That is the 
philosophy behind our approach, and it is incorporated in this 
amendment. No one should have to make any apologies for this provision

[[Page S11367]]

being in the Thompson amendment the way it is.
  With regard to the other point Senator Gramm made concerning 
vaccines--and Senator Frist spoke eloquently about this. This is an 
incorporation. What the Lieberman amendment seeks to remove is the 
incorporation of a portion of a bill that was submitted by Senator 
  If one looks back at the history of vaccines, it is obvious vaccines 
have been special cases in this country for years. We have treated them 
in a special way because the profit margin on vaccines is lower than 
most drugs, and the risk is higher, and we need vaccines. As a part of 
our governmental policies, as part of our national policies, it has 
always been that way.
  We addressed that when the swine flu epidemic came about, and we made 
some changes to the Federal Tort Claims Act. Back in the 1950s, an 
Executive order was put forward that would provide some indemnification 
for companies to produce vaccines. We have a long history of that 
  Finally, in 1986, Congress created the National Vaccine Injury 
Compensation Program which said basically this to plaintiffs: Look, 
plaintiffs, you are not getting anywhere the way it is in the court 
system. Nobody ever gets any recovery off this because you cannot prove 
causation. You cannot prove your injuries were actually caused by this 
vaccine. So we are going to set up a separate system so you do not have 
to prove causation; basically a no-fault situation.
  If plaintiffs do not have to prove causation, on the other hand, 
there is some limitation to the amount of damages they can get. Instead 
of a special court, you go to a special master. If you do not like the 
results, then you can go to court. We think that is a pretty sound 
deal. Congress thought it was in 1986 when it passed that legislation 
and it was signed into law.
  Lawyers look at this and say: OK, we are cut out from suing in court 
if it has to do with a vaccine. So we will take this particular 
additive and say it is not really a vaccine. It is an adulterant, a 
pollutant in this vaccine; therefore, it is not covered by this 
compensation process. That is the way they got to court.
  We have scads and scads of lawsuits as a result of it, and it 
resulted in two U.S. companies left producing vaccines in this country. 
What Senator Frist was trying to do and what we are trying to do in our 
amendment is to effectuate the intent of the 1986 law which was to roll 
all this in to the compensation program.
  Mr. President, I ask for an additional 2 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THOMPSON. The intent was to roll these new lawsuits of the future 
into this compensation program, so that in the future, not only with 
regard to vaccines, but components of vaccines, have a new definition, 
a more comprehensive definition of vaccine and make that a part of the 
  It is not cutting plaintiffs off, it is putting them in the same 
position we thought we were putting plaintiffs in in 1986, anyway, and 
that is go through a special master and prove your case. You do not 
have to prove your injury was actually caused by a vaccine, as one 
would in a court of law; on the other hand, there is some limitation on 
recovery. Then if you are not satisfied, you can sue in court.
  A benefit to a company? When are we going to stop looking at who gets 
some little benefit, who is able to survive, and start looking at what 
is in the interest of our national security? Sometimes I believe we had 
rather make some small point and put some company or group of companies 
out of business who are not in favor at the moment, even if it hurts us 
as a nation. And vaccines are a classic case. We have to have more.
  We are trying to figure out what to do with smallpox. It is not going 
to be in our country's interest to drive these companies out of 
business, and it does nothing to harm qualified plaintiffs to require 
them to go through the compensation program we set up in 1986 and which 
most people thought these plaintiffs would be a part of, anyway.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, how much time remains on this side?
  The PRESIDING OFFICER. Six minutes 41 seconds.
  Mr. HATCH. Will the Chair interrupt me after 4 minutes?
  The PRESIDING OFFICER. The Chair will do so.
  Mr. HATCH. Mr. President, today I rise to speak in opposition to the 
Daschle Lieberman amendment. There are some provisions that I consider 
very important to the Department of Homeland Security and which 
Senators Daschle and Lieberman seek to strip from the House-passed 
language--thus, in my opinion, making their amendment more about 
abusive litigation security rather than homeland defense security.
  In order to provide for our homeland defense, we must take necessary 
steps to promote research and development of important technologies and 
vaccines, and ensure their accessibility. We will have failed the 
American people if the development and deployment of needed 
technologies and vaccines is prevented by the threat of unreasonable 
exposure to overwhelming lawsuits.
  To foster quality research, the House established criteria to ensure 
that when selecting universities as centers for the development of 
homeland security technologies, we partner with the highest quality 
programs. Many of these criteria mirror similar provisions routinely 
found in current Federal laws funding research and development. 
Proponents of the Lieberman-Daschle amendment claim the criteria are 
too selective and should be eliminated. Shouldn't we be concerned that 
the Department of Homeland Security works with the best and the 
brightest when developing technologies intended to protect the American 
people? If the Lieberman amendment passes, I caution you that the 
university-based centers could become more about pork and which 
legislator can deliver the most in government funds to his or her 
district, rather than protecting the American people with cutting edge 
technologies and programs.
  To facilitate the development and deployment of needed technologies, 
the House included its SAFETY Act provision, recognizing that we cannot 
saddle manufacturers with unreasonable exposure to unlimited lawsuits. 
The House-passed SAFETY Act language imposes reasonable provisions to 
manage potential legal exposure of those companies that we have 
asked to step up to the plate in homeland security. Otherwise we will 
be faced with a crisis in homeland security when companies are 
unwilling or unable to become involved. Let me be clear, contrary to 
assertions by some, the House-passed language does not give blanket 
immunity to corporations. What it does is permit companies that 
manufacture and deploy designated antiterrorism technologies, approved 
by the Federal Government for use in homeland security, to be afforded 
the ``government contractor defense,'' but only if certain criteria and 
precise government specifications are met.

  It is important to note that if these criteria are not met, if the 
equipment deployed does not meet Government specifications or if the 
manufacturer conceals any information regarding the dangers posed by 
the equipment--the government contractor defense will not be 
successful. Moreover, if a company engages in fraud or willful 
misconduct, that are not protected. And if a State imposes additional 
requirements which do not conflict with the Federal criteria, the State 
law is not preempted. The defense is not a blanket immunity from suit.
  If the government contractor defense fails, and the plaintiff 
prevails at trial, the subsequent award would be subject to reasonable 
limitations which include:
  Proportionate liability for non-economic damages--Companies would 
only be liable for noneconomic damages according to their portion of 
culpability. Under current joint and several liability laws in place in 
many States, a defendant that is only 1 percent at fault could be 
forced to pay an entire award if payment cannot be obtained from those 
responsible for the other 99 percent. It is unconscionable that we 
would subject manufacturers that have stepped forward to protect the 
American people to unlimited litigation exposure that could result in 
their paying damages for which they are not responsible. A crafty 
plaintiff's attorney

[[Page S11368]]

could conceivably add one of the terrorists as a defendant in a case to 
inflame the jury. Consequently, even if the jury finds the terrorist 99 
percent liable because he perpetrated the act, the manufacturer of a 
device that may have failed one time in 1,000 might be forced to pay a 
huge, often crippling award. Often these types of lawsuits become less 
about culpability and more about the trial bar extorting huge 
settlements based on emotions that run high in the aftermath of a 
tragedy. Nonetheless, the House-passed language only remedies this 
injustice with regard to non-economic damages. Economic damages would 
not be subject to proportionate liability and State laws forcing those 
less culpable to pay for the damages inflicted by those who are really 
responsible, would still apply.

  A Ban on Punitive Damages--It is appropriate to ban punitive damages 
in lawsuits which we can anticipate could very well be based more on 
emotion than legal culpability and are less in line with the real 
purpose of punitive damages--to punish bad behavior--and more about 
making a statement about a tragedy. Uncontrolled and inflated punitive 
damage awards run the risk of drying up defendant resources and 
reducing awards to subsequent plaintiffs to pennies on the dollar.
  We must provide some stability to the legal process, especially in 
the context of terrorist attacks to ensure that private-sector 
resources are available for our homeland defense and that plaintiffs 
are compensated for their actual damages.
  In order to facilitate the development and deployment of essential 
vaccines, the House-passed language recognized the importance of this 
aspect of our homeland security and included language that would treat 
doctors and hospitals who administer certain vaccines and manufacturers 
of certain vaccines as Federal employees. This means that the 
government will step in under the Federal Tort Claims Act, FTCA, and 
defend the lawsuit and pay any damages awarded, subject to the 
parameters of the FTCA. Claimants will still be compensated, but those 
who partner with us to protect our people will not be overwhelmed by an 
unrestrained trial bar. Nobody is arguing with that particular 
provision--but we must recognize that it works in tandem with the other 
provisions that I have addressed.
  If we suffer another attack, do my colleagues want to be faced with a 
shortage of important vaccines, or the inability to get those 
vaccinations to the public in a rapid and orderly manner? As Senator 
Frist noted, our vaccine capability is in crisis. Potential exposure to 
unlimited lawsuits has made it impossible for most companies to 
participate in a vaccine program. We have seen the number of vaccine 
manufacturers fall from 12 to 4, only 2 of which are U.S. companies. 
Doctors and hospitals are legitimately concerned about their potential 
legal exposure should they attempt to partner with the government in 
the dissemination of a vaccine. Let me stress that the government 
cannot do this alone; we must partner with the private sector or else 
we will leave significant portions of our constituents unprotected.

  I must note that the last-minute inclusion of sections 1714-1717 in 
the House-passed bill dealing specifically with liability for vaccines 
that are covered under the current National Vaccine Injury Compensation 
Program, NVICP, has raised many concerns. I have heard from many 
parents that feel the process by which this bill was brought to the 
floor will deny them a meaningful opportunity to influence legislation 
that is important to children and their families. Simply, the process 
leaves much to be desired. A piecemeal, unvetted approach to addressing 
these specific, very complex vaccine injury compensation and supply 
issues is not the best way to protect our children and families. 
Without broad debate and consideration of all the issues surrounding 
vaccine compensation, the narrow inclusion of certain provisions 
regarding NCVIP, such as ``clarification of definition of a 
manufacturer,'' removal as ``an adulterant or contaminant any component 
or ingredient listed in a vaccine's product license application or 
product label,'' and application of these definitions to pending 
litigation, without addressing other criticisms of NVICP may not be the 
best course of action. What is most troubling is the fact that we have 
not been given the opportunity to fully understand the implications of 
sections 1714-1717 and develop comprehensive solutions due to a poor 
legislative process.
  Maintaining a safe, adequate vaccine supply while fairly compensating 
vaccine injury is an important issue and deserves far more deliberation 
and debate than it was afforded. Americans are rightfully concerned 
about the manner in which this important issue has been handled in the 
eleventh hour. Clearly, on the one hand, the vast majority of our 
children and families have benefited from vaccines. On the other hand, 
unfortunately, there are rare adverse events that are caused by 
vaccines. Balancing these issues to ensure the health and well-being of 
our children requires careful consideration. Legislation introduced by 
Senator Frist, S. 2053, the Vaccine Affordability and Availability Act, 
which contained the original provisions now included in the Homeland 
Security bill, had never been subjected to any legislative scrutiny 
such as hearings or markups. Our citizens expect to be heard and their 
concerns taken into account when forming legislation, especially when 
modifying a current program. I am disappointed that this did not occur. 
Ensuring affordable, life saving vaccines while protecting our children 
from vaccine injury and fairly and expeditiously compensating the 
unfortunate families who suffer harm is not a simple matter, and at the 
very least, should be the subject of an open, thoughtful legislative 
process. This issue was clearly not afforded the deliberation the 
American public deserves.
  Though I may not agree with every provision in the House-passed bill, 
and I must emphasize my disappointment in the hurried manner with which 
some provisions were included, I recognize that if we allow this 
amendment to strip the provisions which I feel are vital, we will 
threaten overall passage of the bill.
  Failure to enact this legislation would be a serious disservice to 
the furtherance of our homeland security and the interests of the 
American people because it would leave us in danger of being unable to 
develop the technologies or vaccines necessary for the defense of our 
country in the 21st century. We are in a new type of war, and 
litigation that could follow terrorist attacks will not be garden 
variety lawsuits. Leo Boyle, president of the Association of Trial 
Lawyers conceded as much in a January 9, 2002, Washington Post article, 
``Legal Eagles, Beating Back the Vultures,'' where he stated that 
lawsuits seeking to blame the effects of the September 11 attacks on 
anyone but the terrorists ``deny the essential nature of the attacks'' 
and should be subject to special rules limiting the liability of 
Americans. If that is true, the trial bar should not oppose these 
  Fred Baron, a leading member of the trial bar, was recently quoted as 
referring to an article in the Wall Street Journal that stated the 
trial bar ``all but controls the Senate.'' Mr. Baron took issue with 
the ``all but.'' I took issue with his assertion during a recent 
hearing in which he was a witness before the Judiciary Committee on 
asbestos litigation, because as I think it is clear to all of us--the 
trial bar has so far been successful in preventing us from enacting 
essential reforms in the area of asbestos litigation and class actions 
which are spiraling out of control and crippling American businesses. 
Often these abusive lawsuits have little correlation to any actual 
culpability of these companies, and often end up being to the detriment 
of claimants deserving of appropriate compensation.
  I challenge my colleagues to show the American people that we are 
serious about providing them with the technologies and medicines 
necessary to protect them in the event of another terrorist attack by 
opposing this amendment, and thereby proving that the Senate will not 
cow tow to the special interests of the trial bar or their campaign 
  I thank the Chair. I yield the floor.
  Mr. REID. Mr. President, I wish to speak in support of the Daschle-
Lieberman amendment to the homeland security bill. Many people have 
pointed out many of the problems this amendment attempts to address.

[[Page S11369]]

  I share the concerns of my colleagues that the homeland security bill 
should not include provisions protecting Eli Lilly from lawsuits over a 
vaccine that may be responsible for causing autism in children. The 
homeland security bill is no place for these special interest, last 
minute provisions.
  There are many other such provisions that I am concerned about which 
this amendment will address.
  In particular, I am extremely disappointed with the provision in the 
bill that essentially establishes Texas A&M as a homeland security 
research center. This provisions was drafted in such a way that many 
other universities, such as the University of Las Vegas-Nevada and 
University of Nevada-Reno, will not be able to compete fairly for this 
important designation.
  The war on terrorism will only be won when we utilize all the best 
and brightest academic minds all over the country. I am proud of the 
universities, colleges, and community colleges in the State of Nevada. 
We have some of the best counterterrorism training and research 
facilities affiliated with the Nevada universities and colleges. I am 
disappointed that the administration and the House decided to support 
one facility without taking the time to learn what these other 
facilities have to offer.
  If this amendment is not successful, I will still work to ensure that 
UNLV and UNR will be able to compete for this important distinction. By 
doing so, these universities will continue the proud Nevada tradition 
of offering up our skills to serve the nation in times of crisis.
  Ms. SNOWE. Mr. President, it is only after long and careful 
consideration, as well as assurances from leadership I and several of 
my colleagues have secured which I will detail in a moment, that I have 
determined that I will not support the Daschle-Lieberman amendment 
before us today.
  This is not a decision I have come to lightly. I am deeply troubled 
by a number of eleventh-hour additions to this major piece of 
legislation, in the dead of night, as we face adjournment. This is not 
the legislative process at its finest.
  Even as we speak, unprecedented challenges face our national 
security. Counterterrorism officials report that the level of 
intelligence ``chatter'', or information, being picked up from al-Qaida 
by the CIA, FBI, and National Security Agency is approaching the volume 
seen in the weeks before September 11, promoting the FBI's recent 
warning of ``spectacular'' attacks. That is why the President needs 
this new Department, and must have the opportunity to begin its 
organization as soon as possible in order to respond to this national 
imperative and to secure American soil to the best of his ability.
  Yet, here we are, with the House regrettably having adjourned having 
sent to us a Homeland Security bill encumbered with stealth provisions 
that have prompted considerable and justifiable alarm, particularly the 
clarification of vaccine manufacturer liabilities, the criteria by 
which colleges and universities will be chosen to undertake work on 
behalf of the new Department, and the waiver allowing the use 
of inverted domestic corporations as contractors for the purposes of 
homeland security.

  As to the vaccine program, some argue that the measure included in 
the legislation is necessary in order to help ensure the continued 
viability of the industry, especially at a time when vaccination 
against a host of potential biological attacks has become all the more 
critical. Others have serious concerns about the impact of this 
provision on pending litigation.
  I'm also extremely concerned about the loophole that was opened in 
the bill's provision banning homeland security related contracts with 
inverted corporations.
  It may be one thing to say that exceptions can be made should our 
security requirements demand we deal with an inverted corporation 
because there simply is no other option. It is quite another to 
actually require Federal contracts to be awarded on the basis of the 
lowest bid regardless of where the company is incorporated, thereby 
rewarding the very companies that moved offshore for the purpose of 
avoiding Federal taxation. What kind of message does that send? What 
kind of precedent does it set when just 5 months ago in the Finance 
Committee we were working to crack down on the most egregious corporate 
  And finally, the under-the-radar provision concerning college and 
university work mandated extremely selective and narrow criteria that 
effectively excluded the vast majority of institutions of higher 
learning in America. The measure offered the new Secretary no 
discretion, but rather was tailored to apply to only a handful of 
colleges and universities. Why shouldn't the University of Maine be 
able to contribute to the cause if the Secretary believes that specific 
security needs match with a specific expertise they may possess?
  The only reason I will not be supporting efforts to remove these 
provisions from this legislation via the Daschle-Lieberman amendment is 
because I have been able to obtain assurances from the Republican 
Leader, the Speaker of the House, the Majority Leader-elect of the 
House and the Administration that these objectionable measures will be 
addressed with alacrity upon our immediate return in January, through 
the first available appropriations vehicle in the 108th Congress.
  All of these parties have been in close communications on this 
matter. And let me say it is a credit to Leader Lott that he worked 
swiftly and decisively to address the concerns I and others raised, as 
well as to secure the necessary assurances from House leadership.
  I appreciate that our Republican leader came to the floor to speak to 
our concerns, agreeing there are items in the bill that cannot stand as 
they are and pledging they will be redressed. And I applaud the 
leader's initiative to form a committee to remedy the most troublesome 
provisions I have outlined, and as a member of that committee I look 
forward to achieving that goal so that we can right these wrongs as 
part of the first order of business we conduct in January.
  As a result of these assurances, we can move forward toward 
completion on this bill that can no longer wait. After 6 month of 
deliberation, at this sustained period of ``Code Yellow'' elevated 
alert status, the time has come for the perpetuity of purpose ensured 
by statutory status for a new Department of Homeland Security.
  A Department responsible for safeguarding our homeland defense must 
not be dependent solely on the relationship between a particular 
President and his or her Homeland Security director. Rather, it must be 
run as efficiently and effectively as possible under the leadership of 
a permanent, cabinet level official. That is the only way to achieve 
the kind of ``continuity of urgency'' the security of our homeland 
  The fact of the matter is, we cannot afford a descent into 
complacency when it comes to this life-or-death obligation to protect 
the American people. Under a new cabinet-level department, 
responsibility would rest with a Secretary of Homeland Security--a 
position created under law--who would manage the vital day-to-day 
functioning of the new department. Critically, this person would have 
their own budget, while they work closely with the Administration to 
develop and implement policy.
  The bottom line is, I support the creation of the Department of 
Homeland Security--the largest re-organization of our Government since 
WWII--because it will centralize our efforts to prevent and respond to 
any future terrorist attack. Currently, at least 22 agencies and 
departments play a direct role in homeland security, encompassing over 
170,000 people. This legislation consolidates these various 
responsibilities into one Department which will oversee border 
security, critical infrastructure protection, and emergency 
preparedness and response.
  Every day we wait is another day that we risk having to look back and 
wonder, what if we had acted sooner? For this reason, along with the 
commitment I have personally received from the Leader that we will 
address the issues of vaccine liability, inverted corporations, and 
university contracts next year, I will oppose the Daschle-Lieberman 
  Mr. LEAHY. Mr. President, tucked away into the Homeland Security bill 
is a small provision that no one seems to want to take credit for and 
yet it would bestow huge benefits on just one interest group. According 
to news accounts, Sections 714 through 716 of the

[[Page S11370]]

Homeland Security bill were ``something the White House wanted,'' not 
necessarily something the House or Senate wanted.
  This explanation hardly clarifies why we are including such a far-
reaching amendment that has nothing to do with homeland security in 
this bill. It hardly explains why, in these final days of the 107th 
Congress, we have decided so blatantly to put the interests of a few 
corporate pharmaceutical manufacturers before the interests of 
thousands of consumers, parents and children.
  Sections 714, 715 and 716 basically give a ``get out of court free 
card'' to Eli Lilly and other manufacturers of thimerasol. Thimerasol 
is a mercury-based vaccine preservative that was used until recently in 
children's vaccines for everything from hepatitis B to diphtheria. 
Unfortunately, while these vaccines were intended to help protect our 
children's health, there are many health professionals and parents who 
now believe the opposite occurred.
  Parents and health professionals are now concerned that using 
vaccines with thimerasol has exposed as many as 30 million American 
children to mercury levels far exceeding the ``safe'' level recommended 
by the Environmental Protection Agency. In 1999, the American Academy 
of Pediatrics and the Public Health Service began urging vaccine 
manufacturers to stop using thimerosal as quickly as possible. Since 
then, parents of autistic children around the country have gone to 
court to hold pharmaceutical companies liable for the alleged damage 
caused by thimerosal. Many of these parents now cite pharmaceutical 
manufacturer's own documents to show that they knew of the potential 
risk of using mercury-based preservatives back in the 1940s and yet did 
not stop its use.
  Now tucked away in the Homeland Security bill, we find this small 
provision that changes the definition of a vaccine manufacturer to 
include those companies that made vaccine preservatives. This small 
change to the Vaccine Injury Compensation Program cuts the legs out 
from under the families involved in pending lawsuits against thimerosal 
manufacturers. The amendment is obvious in its attempt to put up 
roadblocks to these cases. Those who brought the cases against 
manufacturers would lose their option of going to court while the 
manufacturers get new protections from large judgments.
  Let's be clear about this provision. It has nothing to do with 
homeland security. Smallpox and anthrax vaccines do not use thimerosal. 
We should not take away the rights of our citizenry under the guise of 
trying to protect them.
  The PRESIDING OFFICER. The majority leader.
  Mr. DASCHLE. What is the current time remaining?
  The PRESIDING OFFICER. The Republican leader has 2 minutes 20 
seconds, and the majority leader has 4 minutes 3 seconds.
  Mr. DASCHLE. Since the Republican leader is not here, I will use the 
time remaining to respond to a couple of the points raised by my 
  First, with regard to the comments made by the Senator from Texas, I 
again reiterate this has nothing to do with support for pharmaceutical 
research. This has everything to do with a questionable preservative 
used in combination with pharmaceutical vaccines. Thimerosal is an 
additive, a preservative. There are those who have made the case that 
Thimerosal may cause autism in children. We do not know. All over this 
country, there are class action suits by families who have sued to make 
the case, who have sued to have their day in court, who want to get 
more science and more answers than they have right now. That is what 
this is about: Whether those thousands of families will have an 
opportunity to be heard in court; whether they will have an opportunity 
if, God forbid that there is that connection, to be indemnified. Make 
no mistake, this legislation eliminates all of that opportunity.
  I heard the Senator say this is good government. I must say, I am 
baffled by that expression. How can it be good government to say to 
families all over the country who have been victimized, or at least who 
think they have been victimized, that they can no longer go to court to 
seek redress?
  Again, let me say, this has nothing to do with research or with the 
vaccines themselves. Thimerosal is no longer being made. We are not 
even dealing with future class action lawsuits. We are only dealing 
with the ones currently pending. This legislation, let everyone 
understand, will wipe out--eliminate--the access to courts by families 
who have been injured, whose children have autism, who want the right 
to make the case to the courts, and then the courts decide. If the 
evidence is not there, they do not get the compensation. But if they 
can make the case and if the science will support the connection, then 
there is some hope for these families who otherwise have none.
  Why at the eleventh hour, why in the dead of night, somebody, even if 
they thought they were right, would add legislation without debate, 
totally stripping these families of that opportunity, is something I 
cannot explain, I cannot understand. That is what we are talking about. 
That is not good government; that is shabby government. That should not 
be allowed. That is really why we are taking it out.
  We can explain, we all know how these targeted amendments get put in 
legislation. In the course of any one Senator's career, those occasions 
occur. I don't think anyone can justify a Texas A&M earmark for 
research. I say to the Senator from Nebraska, the University of 
Nebraska should be entitled to that research. The University of South 
Dakota might be interested in that research. There ought to be a 
bidding process. There ought to be some open opportunity for colleges 
to compete. But to earmark, without debate, Texas A&M as the only 
university allowed under this legislation--it may be justified; maybe 
after all the competition they could win--is not the way to legislate. 
That is also an embarrassment. I hope we can avoid that.
  I will finally say, because I know I am out of time, for the Congress 
to reverse a decision we both have made--passed in the Senate, passed 
in the House, passed overwhelmingly in both bodies--to send a clear 
message to companies that go overseas to avoid paying U.S. taxes, that 
will not be tolerated, especially with regard to their ability to deal 
with the Homeland Security Department, and now to say we were not 
serious, we were just kidding, those votes, as overwhelming as they 
were, really did not mean anything; what we really mean is, go ahead 
and have that business, do that business, that is OK, you can go 
overseas, avoid paying taxes, you can renounce your U.S. citizenship, 
but you can still do business with homeland security, that is OK--that 
is what we are saying if we oppose this amendment.

  I could go on and on. I know I am out of time. I urge my colleagues 
to do the right thing. Let's cleanup this bill. Let's not have this 
vote and send the wrong message to the people of this country, to the 
families who are victimized, to the businesses that have no business 
dealing with homeland security. We can do better than that. That is 
what this amendment will allow us to do.
  The PRESIDING OFFICER. The minority leader.
  Mr. LOTT. How much time is remaining on each side?
  The PRESIDING OFFICER. Two minutes 11 seconds remain.
  Mr. LOTT. Mr. President, if I need additional time, I will yield 
myself leader time so I can wrap up this discussion.
  I regret I have not been able to hear all of the debate this morning. 
We have had an opportunity to have a long and fruitful debate. A lot of 
Senators and Congressmen and the administration have been involved in 
this process. There is no use rehashing all of the history. We know we 
need a Department of Homeland Security. We know this 484-page bill that 
Senator Byrd referred to is not a perfect bill. There are things we 
will find out very quickly we will have to add that are not there now. 
We will find out some of the provisions are not good. We will have to 
revisit that. This is a huge undertaking. We all know this has not been 
done for 50 years.
  We will bring together 170,000 people and try to make this thing work 
out of whole cloth. It will be a tremendous challenge, whether Gov. Tom 
Ridge or whoever winds up being the Secretary. They will have to have a 
strong Department. They will have to have support from Congress. We 
will have to carry out our oversight responsibilities. This will be a 
continuing process.

[[Page S11371]]

  However, if we do not do it now, when are we going to do it? Do I 
like this process? No. Is a legislative process like making sausage? 
No, it is not pretty and it is not done well, sometimes. Sometimes we 
are the problem, individually or collectively. Sometimes it is the 
House; sometimes even the administrations make mistakes.
  The terrorists are not going to wait for a process that will go on 
days, weeks, or months.
  We have fought this fight. We need to get this done. And we need to 
do it now. If we don't, we don't know when this process would end. 
Would we have to go to conference? When would conferees be appointed? 
Who would appoint them? When would the conference meet? I don't want to 
be singing ``Jingle Bells'' here on December 21. We are all prepared to 
do it if that is the right thing for the country.
  But we could very well be working on this again next year. And then 
you have to get this Department started. It could take a month, 2 
months, 3 months, 4 months. Is our homeland going to be secure during 
that process? Are we vulnerable still in our ports? How about our 
drinking water? Are we at risk? Yes.
  Now, there are some things in this bill that cannot stand, as it 
presently is.
  We don't like it. Texas A&M University is a great university. 
Mississippi State University could do this job. I don't think we ought 
to be setting criteria that directs research being done at one place or 
another. We have to open that up. We have to make sure everybody has a 
shot at it and that the research will be done at universities--if that 
is needed, and I am not even sure it is--in the right way. We are going 
to change that. You have my commitment we will change that.
  And I don't like the language in this expatriate area. I think it is 
too broad. However, a little bit of what is at stake here is trust. We 
have to have some modicum of trust that the new Secretary and the 
President and the Congress are not going to let these things be done in 
an irresponsible way. We are not going to grant block waivers to 
companies that have left this country for tax purposes. But we also 
have to have some common sense.
  What if homeland security is at risk? What if a large amount of jobs 
is at stake? What if this particular company offers a particular thing 
we really need that somebody else can't offer? We are going to have to 
deal with the liability. We don't like limiting liability in some 
areas--some of our colleagues on both sides. But here is the question: 
Are they going to go into this business of homeland security without 
some degree of reliability that what they are going to be able to do 
will be without the threat of lawsuits going on and destroying them?
  We are asking companies to produce items and to deal with this 
vaccine problem. Let me tell you, one of the toughest decisions the 
President of this United States is going to have to make is are we 
going to have a broad-based smallpox vaccination of the population? 
That could kill hundreds, thousands of people, but perhaps protect 
millions. It is a huge, tough, emotional, personal decision the 
President is going to have to make. And liability exposures could be 
  But do we want the vaccine? Do we want the inoculation opportunity to 
protect our people? Yes.
  So I am asking for common sense. I am asking for trust. I am asking 
for action now. And we will address some of these issues. I am going to 
be specific as the day goes forward about some of the changes that are 
going to have to be made. We will find what they are. We will find a 
  Some people would say: Change it now and let the House deal with it. 
But how do you do that? How do they do that? How do we get a 
conclusion? How much longer does it delay this? We need to get this 
done, my colleagues, and now is the time to do it. We need to work 
together to make sure it is implemented in the right way.
  We are going to find there are a lot of provisions here that are 
going to have to be refined. There are going to have to be technical 
corrections. There are going to have to be amendments and they are 
probably going to come soon. But I urge the Senate to go ahead and act 
  As I said earlier, we have fought this fight. Is it perfect? No bill, 
no law, ever is. And I am going to ask the President of the United 
States to give us some assurances, when he signs this legislation, that 
we are going to look at it carefully and we are going to continue to 
work to make sure he has the authority and that the Department does the 
job in the way we expect them to do it.
  In conclusion, I thank Senator Lieberman, the chairman of the 
committee, for his work. He was for it before it was cool. And so were 
some others on that side and this side. I thank Senator Fred Thompson 
for his great effort. This is his swan song. He will be leaving at the 
end of this year and we are going to miss him. These are two fine 
Senators who have worked on a very difficult job. I think we should 
show our appreciation to them and get this work complete.
  I yield the floor.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
  Mr. DASCHLE. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
  The clerk will call the roll.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. 
Kennedy) is necessarily absent.
  The PRESIDING OFFICER (Mr. Carper). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 47, nays 52, as follows:

                      [Rollcall Vote No. 245 Leg.]


     Nelson (FL)


     Nelson (NE)
     Smith (NH)
     Smith (OR)

                             NOT VOTING--1

  The amendment (No. 4953) was rejected.
  Mr. GRAMM. Mr. President, I move to reconsider the vote.
  Mr. LOTT. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                           Amendment No. 4911

  The PRESIDING OFFICER. Under the previous order, there are 2 minutes 
equally divided for debate prior to the vote on the next amendment. Who 
yields time?
  Mr. DASCHLE. Mr. President, I ask unanimous consent to vitiate the 
yeas and nays on the amendment in the first order.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is on agreeing to amendment No. 4911.
  The amendment (No. 4911) was rejected.
  Mr. GRAMM. Mr. President, I move to reconsider the vote.
  Mr. NICKLES. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                           Amendment No. 4901

  The PRESIDING OFFICER. There are 2 minutes equally divided prior to 
the next vote. Who yields time?
  Mr. BYRD. Mr. President, what is the amendment that is before the 
  The PRESIDING OFFICER. The Thompson substitute amendment is the next 
item of business.
  Mr. BYRD. Is that the amendment by Mr. Thompson?
  Who yields time?

[[Page S11372]]

  Mr. BYRD. Mr. President, I assume someone who is in favor of the 
amendment will take 1 minute out of the 2 minutes.
  The PRESIDING OFFICER. Who yields time?
  There are 2 minutes equally divided.
  Mr. BYRD. Mr. President, if no proponent wishes to take the 1 minute, 
I will take 1 minute.
  I say to my colleagues that the Senate had just 48 hours to review 
the 484 pages of the House bill before cloture was invoked, before we 
stabbed ourselves with the dagger.
  In reviewing the details of the bill finally, though, I have had a 
chance to do a cursory review. The Congressional Budget Office has 
identified three provisions that increase mandatory spending by $3.26 
billion. Some of this new mandatory spending has nothing whatsoever to 
do with homeland security.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. BYRD. Mr. President, my time has not expired. Senators should pay 
attention. I insist that I have the rest of my time.
  The PRESIDING OFFICER. Would the Senator ask unanimous consent.
  Mr. BYRD. I ask unanimous consent that I may proceed for at least a 
half minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator is recognized for 1 minute.
  Mr. BYRD. Mr. President, at age 85, I need no hearing aid. I don't 
think I will ever need one, but sometimes it is pretty difficult to 
hear, even for those who can even hear better.
  These additional expenditures are not provided for in the budget 
resolution adopted in 2001 for fiscal years 2002 through 2011. 
Therefore, the amendment is subject to a point of order under section 
302(f) of the Budget Act.
  I make a point of order that the pending amendment violates section 
302(f) of the Congressional Budget Act of 1974.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. GRAMM. Mr. President, I yield myself 1 minute. We have debated 
this issue for 8 weeks. The American people spoke very clearly on this 
issue in the election. It is now time for us to speak.
  This is the vote on homeland security and I urge my colleagues to 
vote aye.
  I would like to thank Richard Hertling, the distinguished staff 
member who has been the leader here. I thank Mike Solon of my staff, 
and I thank Rohit Kumar of the Republican leader's staff.
  Mr. President, I move to waive the budget point of order. I ask for 
the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the motion. The clerk will call the 
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. 
Kennedy) is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 69, nays 30, as follows:

                      [Rollcall Vote No. 246 Leg.]


     Nelson (FL)
     Nelson (NE)
     Smith (NH)
     Smith (OR)



                             NOT VOTING--1

  The PRESIDING OFFICER. On this question, the yeas are 69, the nays 
are 30. Three-fifths of the Senators duly chosen and sworn having voted 
in the affirmative, the motion is agreed to and the point of order 
  The majority leader.
  Mr. DASCHLE. I ask unanimous consent the next two votes be 10-minute 
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BINGAMAN. Mr. President, I rise today in support of the Thompson 
substitute amendment to the Homeland Security bill. While I have 
concerns about the process by which this legislation was put together 
and some of the provisions contained in it, I believe that passage of 
the Homeland Security bill is a necessary first step in the 
Government's effort to secure our nation against future terrorist 
  I want to speak first about the provisions in the bill that will help 
my State of New Mexico. First, I am pleased that this legislation 
includes many provisions that will ensure that New Mexico's national 
laboratories--Sandia and Los Alamos continue to play a key role in the 
fight against terrorism. To that end, the Thompson amendment 
incorporates a number of science and technology provisions from Senator 
Lieberman's Homeland Security bill that I helped write.
  In particular, I am pleased that the Thompson amendment allows the 
Department of Homeland Security to become a joint sponsor of the 
Department of Energy's national laboratories. I believe joint 
sponsorship retains the clear lines of authority needed for the 
Government to manage the national laboratory system effectively. I am 
also happy to see that the bill includes $500 million for the 
technology acceleration fund, which represents a good starting point 
for our investment in the new technology that will be needed to defend 
our homeland against terrorist threats. Finally, the amendment includes 
the formation of a Homeland Security Institute, as called for by the 
National Academy of Sciences. The Institute will provide vital 
technical analysis and policy advice to the new Department. In 
particular, I look for the Institute to help the new Department strike 
an appropriate balance between the desire for greater information 
gathering by law enforcement and intelligence agencies and the 
fundamental need to protect the privacy rights of individuals. I 
believe we have done the right thing by establishing a not-for-profit 
institute to advise the Department on these most important issues.
  The bill also transfers the Federal Law Enforcement Training Center, 
FLETC, to the Homeland Security Department and ensures that the 
activities currently underway continue to be carried out at the same 
locations. This will ensure that the FLETC division in Artesia, NM, 
will continue to play a key role in training Federal law enforcement 
personnel who are on the front lines in the effort to keep our country 
  The legislation also creates a new Bureau of Border Security within 
the Department of Homeland Security, which will include the Customs 
Service and Border Patrol, as well as the other enforcement functions 
of the Immigration and Naturalization Service, INS. While I would have 
preferred that the service and enforcement functions of the INS be kept 
under a single directorate, as proposed by Senator Lieberman, I am 
hopeful that the consolidation of these border agencies under a single 
bureau will enable us to address the efficiency and security problems 
that have been experienced at ports-of-entry along the U.S.-Mexico 
border in recent years. That said, if we are ever going to ensure the 
security of our borders, we must also take steps to improve the 
efficiency of the INS with regard to its processing of legal 
immigrants. As the new Department takes shape, it is my hope that the 
Secretary of Homeland Security will make immigration reform a top 
  I would also like to talk briefly about some of the concerns I have 
with this bill. First, I was deeply troubled with the process by which 
the final legislation was crafted. Senator Lieberman worked for months 
in good faith to craft a Homeland Security bill that was well thought 
out and included significant input from both the majority

[[Page S11373]]

and minority in the Senate. His bill even passed the Governmental 
Affairs Committee with bipartisan support. Unfortunately, when the bill 
came to the Senate floor, the Republican party and President Bush chose 
to politicize the issue and block many good faith efforts to pass the 
bill before the election. After the election, the President and the 
Republican leadership, with virtually no other input, produced this 
484-page bill, which is loaded with numerous special interest 
provisions and a bad deal for Federal workers. Further, as we 
considered this bill on the Senate floor, we were allowed only one 
amendment. This process of last minute, backroom deals and limited 
amendments is not the way the Senate should conduct its business.
  Second, as I mentioned, this bill is loaded with special interest 
provisions that were inserted at the eleventh hour by the Republican 
leadership at the request of the White House. The one amendment that 
was considered would have stricken seven of the most egregious 
provisions. One such provision will grant new liability protections for 
pharmaceutical companies that make mercury-based vaccine preservatives 
that may have caused autism in children. Provisions such as this have 
nothing to do with homeland security and have no business being in the 
Homeland Security bill. That is why I was greatly disappointed that the 
Senate voted against the Daschle/Lieberman amendment to strike these 
seven extraneous provisions from the bill.
  Finally, I want to emphasize that I remain concerned with the lack of 
provisions that address protections for civil service employees. I know 
that support for these provisions has been characterized over the last 
few weeks as support for the unions. I think that characterization is 
overly simplistic, however, and the issue far more complex. I believe 
that all employees--whether they be in the public or the private 
sector--deserve to be protected against the arbitrary treatment this 
so-called ``flexible'' management system will allow. Over the decades 
we have established a set of reciprocal principles and practices in 
Government service that require both employers and employees to treat 
each other with respect and integrity. Those principles and practices 
have worked well through national crises of all kinds and a willingness 
has always been evident on the part of both employers and employees to 
sit down and work through problems that have arisen.
  The idea that we need to change that system because it will break 
down in this instance is, in my view, a red herring. There is no 
evidence that this will occur, and there are no examples when it has 
occurred. From where I sit, the brave men and women who work along the 
border in the Border Patrol, U.S. Customs, and the Immigration and 
Naturalization Service are patriots and are not inclined to take any 
action that would harm the national interest. They deserve better than 
this bill offers. There are no protections against unlawful 
discrimination, political favoritism, and unjust decisions. There are 
no protections for whistleblowers. There are no protections against 
management that use the ``flexibility'' available in this bill to 
settle a personal or professional grudge. There was instead a decision 
on the part of the administration to impose its ideological solution to 
a problem that begged for discussion and compromise. What we ended up 
with was a bill that establishes a system based on individual whims and 
not established law. Government employees deserve better than this, and 
I believe in the end our capacity to serve the public will be 
diminished because we did not find a way to address this issue in a 
mutually satisfactory manner. That said, I believe the need for the 
creation of a Homeland Security Department outweighed the potential 
consequences of these provisions in the bill. As the President takes 
steps to establish the new Department, I will be watching his actions 
with regard to Federal workers closely, and I hope that we will have 
the opportunity to address this matter further during the 108th 
  It may seem like we have finally reached the end of a long and 
difficult debate on how best to ensure our homeland security, but 
passage of this bill means that our efforts have just begun. It will 
take some time to get the Homeland Security Department off the ground. 
During the coming transition, I am committed to helping President Bush 
make this new Department operational as soon as possible, and I will 
continue working to ensure that the new Department has the funds 
necessary to carry out its mission effectively. Further, I will 
continue working to maintain New Mexico's preeminent position in the 
fight against terrorism and to ensure that our national labs remain at 
the leading edge of homeland security research and development. At the 
same time, I will be monitoring closely the actions of the President 
and his administration as this legislation is implemented. We do not 
have to sacrifice our civil liberties to maintain homeland security, 
and I will be working to ensure that the new Department remains 
accountable to the American people.
  The PRESIDING OFFICER. The question is on agreeing to the Thompson 
amendment No. 4902.
  Mr. DASCHLE. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. 
Kennedy) is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 73, nays 26, as follows:

                      [Rollcall Vote No. 247 Leg.]


     Nelson (FL)
     Nelson (NE)
     Smith (NH)
     Smith (OR)



                             NOT VOTING--1

  The amendment (No. 4091) was agreed to.
  Mr. HATCH. Mr. President, I move to reconsider the vote.
  Mr. LIEBERMAN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                             Cloture Motion

  The PRESIDING OFFICER. By unanimous consent, pursuant to rule XXII, 
the Chair lays before the Senate the pending cloture motion which the 
clerk will report.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close the debate on Calendar No. 
     529, H.R. 5005, the Homeland Security legislation.
         John Breaux, Ben Nelson of Nebraska, Larry E. Craig, Jon 
           Kyl, Mike DeWine, Don Nickles, Craig Thomas, Rick 
           Santorum, Trent Lott, Fred Thompson, Phil Gramm, Pete 
           Domenici, Richard G. Lugar, Olympia J. Snowe, Mitch 

  The PRESIDING OFFICER. Under the previous order, there are 2 minutes 
of debate equally divided on the cloture vote.
  Who yields time?
  Do Senators yield back their time?
  Mr. DASCHLE. Mr. President, I yield the remainder of our time.
  Mr. THOMPSON. Mr. President, we yield back the remainder of our time.
  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call under the rule is waived. The question is, Is it the sense of the 

[[Page S11374]]

that debate on H.R. 5005, an act to establish the Department of 
Homeland Security, and for other purposes, shall be brought to a close? 
The yeas and nays are required under the rule. The clerk will call the 
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. 
Kennedy) necessarily absent.
  The PRESIDING OFFICER (Mrs. Clinton). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 83, nays 16, as follows:

                      [Rollcall Vote No. 248 Leg.]


     Nelson (FL)
     Nelson (NE)
     Smith (NH)
     Smith (OR)



                             NOT VOTING--1

  The PRESIDING OFFICER. On this vote, the yeas are 83; the nays are 
16. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.


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