Robert Byrd

Mr. BYRD

Mr. BYRD. Mr. President, I ask unanimous consent that I may speak out of order.

Mr. BYRD. Mr. President, what is the business before the Senate?

Mr. BYRD

Mr. BYRD. Mr. President, as all Senators are aware, at midnight on Wednesday, September 30, Fiscal Year 1998 expired. And with the expiration of the fiscal year came some most welcome and almost unbelievable news that, for the first time since 1969, the unified Federal budget was in surplus for Fiscal Year 1998. We do not know the exact figures yet. That will not be known until the Treasury Department completes its calculations of actual revenues and expenditures that occurred up through midnight, September 30, but we do know that the latest estimate by the Congressional Budget Office of that unified budget surplus is $63 billion. The President has announced that the official administration projection of the Fiscal Year 1998 unified budget surplus is about $70 billion. This unified budget surplus, whether it be $63 billion, or $70 billion, or some other figure, is a result of a dramatic turnaround from the massive budget deficits that were projected just a few short years ago. Who should be given the lion's share of the credit for this dramatic turnaround in the country's fiscal fortunes? The President wants to claim a large share of the credit. The Republican-led Congress likes to say that things did not really change until they took over control of the House and Senate, and that they deserve the majority of the credit. Many financial analysts give a substantial amount of the credit to the policies of the Federal Reserve, which have attempted to manage the country's fiscal fortunes through adjustments in interest rates. Suffice it to say, credit should be given to all of the above. Speaking from first-hand experience, I believe that Congress does deserve substantial credit for the turnaround from the triple-digit- hundred-billion-dollar deficits of the twelve years under Presidents Reagan and Bush. Those triple-digit deficits accumulated to the point where the nation's debt rose from just under $1 trillion on the day that President Reagan took office to more than $4,097,000,000,000 on the day that President Bush left office. In other words, in the entire history of the country, from the day that President George Washington took office to the day that President Reagan took office, the nation's accumulated debt amounted to less than $1 trillion. Twelve years later--the day that President Bush left office, it stood at $4,097,000,000,000. Throughout the period of the 1980s, Congress attempted to rein in these massive Federal deficits, for example, with the Gramm-Rudman- Hollings sequester mechanism that was part of the 1985 Balanced Budget and Emergency Deficit Control Act. This mechanism, Senators may recall, required an across-the-board sequester of all Federal programs (with few exceptions) sufficient to bring down any deficits that exceeded those provided for in annual budget resolutions. In 1990, it became clear that the sequester that would be necessary to achieve the requirements of Gramm-Rudman-Hollings would have decimated the entire Federal establishment, including a cut in the budget of the Department of Defense ranging between 25 and 35 percent. Rather than allowing those sequesters to proceed, Congress and the Bush Administration had no choice but to convene what turned out to be a very lengthy and difficult budget summit. I participated in that summit, as did a number of my Senate colleagues who are still in the Senate--Senators Domenici and Gramm, for example. After many months, including weekends and around-the-clock sessions at Andrews Air Force Base, that summit resulted in substantial changes in our budget discipline which have played a positive role in helping to rein in Federal deficits since their inception in 1990. Under those mechanisms, sequesters of not only discretionary funds take place when so-called discretionary caps are exceeded, but also, for the first time, mandatory programs are under a pay-go system as well. Under the Budget Enforcement Act of 1990, any new mandatory spending must be fully offset. That 1990 Act also put in place a process for considering emergency spending, which is allowed to go forward outside the budgetary caps, if such spending is declared an emergency by both Congress and the President. By and large, that emergency mechanism, I believe, has been beneficial and has been used in accordance with the intentions of the summiteers. That emergency designation is allowed for spending outside the caps for events that are sudden, urgent, unforeseen, and not permanent. Such events include natural disasters, military deployments around the world, and so forth. The fact that the 1990 Budget Enforcement Act has been successful is not just the opinion of this Senator. It is shared by many, including the Chairman of the Federal Reserve Board, Alan Greenspan, who in recent testimony before the Senate Budget Committee, made the following statement in relation to that legislation, and I quote: I think that--frankly, much to my surprise, as I think I have indicated to you over the years, that the budgetary processes, which were put into place by the Congress a number of years ago, have worked far better than I would have ever anticipated them working. And I would be quite chagrined if we abandoned them because when you have a good thing, it seems rather pointless to dismantle it. I think those words by Mr. Greenspan are right on the mark. Subsequent to the 1990 changes in the Budget Act and the Gramm- Rudman-Hollings law, I believe that credit should also be given to those who voted for the 1993 budget package which passed each House of Congress by a one-vote margin and without a single vote from the Republican side of either body. That package was anathema to the Republicans. Yet, despite the dire predictions of economic doom which came from the Republican side of the aisle at the time, the economy has performed very, very well ever since the enactment of that legislation. All of those who have been involved in reducing Federal deficits can be justifiably proud of what is now a unified budget surplus for Fiscal Year 1998 in excess of $60 billion. But, while we are basking in the glow of high praise and compliments all around, we must also take a heavy dose of realism. For reasons that I shall now attempt to explain in some detail, this is not the time to abandon the fiscal discipline we have undertaken for a number of years. I believe very strongly that any budget surpluses in the coming decade should be used for retiring the Federal debt, rather than for massive tax cuts or increases in Federal spending. Mr. President, on July 15, 1998, the Congressional Budget Office issued its summer baseline projections for Fiscal Years 1998-2008 for the unified Federal budget. Now, let me stop here and explain what the term ``unified Federal budget'' means. The unified Federal budget includes not only the operating budget of the various departments and agencies throughout the Federal government, but it also includes the Postal Service and--get this--Trust Fund surpluses, the most important one of which is--guess what--the Social Security Trust Fund. By including these Trust Fund surpluses in the unified budget, one ignores the fact that none of the Trust Fund surpluses is available for anything other than the purposes for which the Trust Funds were established. In other words, it is to a large extent misleading and certainly amounts to budgetary wizardry to count these Trust Fund surpluses when one says that there is an overall unified Federal budget surplus. Nevertheless, for the moment, let us talk about what has happened to the projections of our Congressional Budget Office experts as far as they relate to the unified Federal budget between the period March 15, 1998, and July 15, 1998. The unified budget surplus projections for the 11-year period 1998- 2008 provided to Congress in March of this year by the Congressional Budget Office totaled $679 billion. Let me say that again. The unified budget surplus projections for the 11-year period 1998- 2008 provided to Congress in March of this year by the Congressional Budget Office totaled $679 billion. By July 15, 1998, just 4 months after its March 1998 projections, the Congressional Budget Office sent to Congress its summer report, which I have. In that report, CBO projects that unified budget surpluses for the period 1998-2008 will total more than $1.6 trillion. That is a change of some $932 billion in surplus projections for the next 11 years. So over a period of just 120 days, from March 15, 1998, to July 15, 1998, the Congressional Budget Office changed its projections of unified budget surpluses for the next 11 years from $679 billion to $1.611 trillion. What caused the Congressional Budget Office, our premier independent budgetary experts, to make such a massive change in budget surplus projections in such a short time? The best that we have been able to determine is that the largest the contributor to the upward revision of future surpluses resulted in a change in CBO's treatment of revenues. Previously, CBO had argued that there had been a surge of unexpected revenues in the recent past, but that such surge was temporary. Now they argue that there are good reasons to think that this unexpected surge in revenues will continue indefinitely. This results in an ad hoc addition of approximately $50 billion each year of the latest 11-year budget forecast. Does this mean, Mr. President, that the Congressional Budget Office is inept and that perhaps the Congress should seek the services of another budget prognosticator? Certainly not. Rather, my purpose in highlighting this significant change in estimates is to support my belief that, in all decisions affecting revenue and spending for future years, we must tread carefully on the planks of budgetary estimation. Like an old man crossing a footbridge strung over a chasm, only a small misstep can mean the difference between a successful crossing and spectacular failure. CBO would be the first to tell you that they have consistently missed budgetary forecasts, as has the Office of Management and Budget. That is to be expected. No human being can ever predict accurately what revenues will come into the Treasury in a given year, or what expenditures will go out of the Treasury, or what the unemployment rate will be, or what the inflation rate will be, or whether there will be a recession, or the duration and virility of recessions. In short, Mr. President, there is no reason to believe that the CBO's current forecast of the budgetary picture over the upcoming 10 years will be any more accurate than have been its previous forecasts. Also, very importantly, Senators should remember that budgetary estimates can rapidly change and they can change for the worst, just as they have turned for the better in recent years. We saw this firsthand during the early 1990s when we suffered a severe and lengthy recession; there is no reason to think that it cannot happen again. There is no reason to think that it will not happen again. Consider the remarks of the Chairman of the Federal Reserve Board of Governors, again, Mr. Alan Greenspan, at a recent hearing by the Senate Budget Committee. This is what he said: According to CBO's figures, a recession comparable to the 1991 downturn would eliminate the unified surplus and create a budget deficit of more than $50 billion within 2 years. Over the next 10 years, more than half of the $1.5 trillion in projected unified surpluses would be eliminated. That was Mr. Greenspan talking. With this in mind, we should never underestimate just how unpredictable and capricious budget projections can be. In virtually every CBO report, cautionary statements are made, such as the following, which is included in the CBO's most recent budget update: . . . there is a risk that future events will cause a significant divergence from the path laid out in the new forecast. The economy could be more adversely affected by the Asian crisis than CBO assumes; the tightness of the labor market could cause a significant jump in the rate of inflation; or the stock market could drop precipitously. We have seen that happen all too many times of late. Conversely, the Asian crisis could have little additional effect on the United States; productivity growth might remain higher than CBO anticipates, which would permit a continuation of rapid noninflationary growth and stronger profits; or labor force participation rates might again increase rapidly, easing pressures on the labor market for a few years. Such alternative outcomes could have a substantial effect on the budget, increasing or decreasing its bottom line by $100 billion or more in a single year. That is the end of the quotation. To this point, Mr. President, I have concentrated my remarks on the ``unified Federal budget'', which, as I stated earlier, combines not only the operating budget of all Federal departments and agencies, but also the Postal Service and Trust Fund surpluses. In so doing, the unified Federal budget hides from view the question of whether, in its operations, the Federal budget is in deficit or is in surplus. Let us now look at a couple of other Federal budget calculations that are available to us through the Congressional Budget Office. What, for example, are CBO's baseline projections for the next 5 years for on- budget deficits or surpluses? On-budget calculations, it should be noted, exclude Social Security surpluses and the Postal Service, which, I might add, are supposed to be treated as off-budget by law. CBO's on- budget calculations project that we will suffer deficits for Fiscal Years 1999, 2000, 2001, and 2003. In other words, if one leaves Social Security surpluses and the Postal Service out of the budget calculations, there is no surplus at all until the year 2002, at which time CBO says there will be a $1 billion on-budget surplus. Let me read that again. CBO's on-budget calculations project that we will suffer deficits for Fiscal Years 1999, 2000, 2001, and 2003. In other words, if one leaves Social Security surpluses--we are talking about Social Security surpluses. We are talking about something that interests a lot of people, something that involves millions of people in this country, something that is of concern to the great mass of people out there, old and young, women, men, children--if one leaves Social Security surpluses and the Postal Service out of the budget calculations, there is no surplus at all until the year 2002, at which time CBO says there will be a $1 billion on-budget surplus. Deficits for the other fiscal years total $138 billion. Therefore, over the coming 5 budget years, CBO projects that, if we exclude Social Security surpluses and the Postal Service--if we exclude them--we will suffer deficits in 4 of those years totaling $138 billion and a surplus of only $1 billion in one year--2002--making a net on-budget deficit over the next 5 years of $137 billion. Hence, it becomes obvious that for the next 5 years, there is no Federal budget surplus at all if one excludes Social Security and the Postal Service from the calculation. In fact, there is a net deficit of over $130 billion. Now, let us take a look at CBO's calculations of what is called, in budgetary terminology, the ``Federal Funds Budget.'' This budget, by definition, excludes not only Social Security and the Postal Service but all Trust Funds. In other words, the Federal funds budget excludes Social Security, the Postal Service, the Highway Trust Funds, the Airport and Airway Trust Funds, the Medicare Trust Funds, the Civil Service and Military Retirement Trust Funds, the Unemployment Trust Funds, and many, many more. CBO's projections are that we will have Federal funds deficits for 9 of the next 10 years. For that period, Fiscal Years 1999-2008, Federal funds deficits are projected to total $592.2 billion. Over that period, only the year 2008 is projected to show a small surplus. What this means is that when all obligations of the Federal Government are taken into account, including the IOUs to all Federal Trust Funds, we will not have any surplus until the year 2008--even if these new, rosy CBO forecasts come true, and even if Congress restrains itself from spending any of those projected surpluses or cutting taxes. Now, let us shift our attention to a discussion of the National Debt. Federal Debt is divided into two categories--namely, Debt Held by the Public and Debt Held by Government Trust Funds. Under present policies, CBO's latest projections show that Debt Held by the Public will decrease from $3.7 trillion in 1998 to $2.3 trillion in 2008. This is so because Debt Held by the Public does not include any of the debt owed by the Treasury to Federal Trust Funds. Therefore, if CBO's $1.6 trillion in projected unified budget surpluses come to pass, those surpluses will go toward reducing Debt Held by the Public. However, Debt Held in Government Trust Funds will rise, according to CBO, from $1.8 trillion in 1998 to $3.9 trillion in 2008. In other words, the surpluses in the Government Trust Funds that I have previously named will continue to grow and add to the debt owed by the U.S. Treasury to those Trust Funds. When one combines both types of Federal debt, namely, Debt Held by the Public and Debt Held in Government Trust Funds, one arrives at what is known as Gross Federal Debt. This, to me, represents the truest picture of the debts being incurred by the Federal Government that will eventually have to be paid. CBO projects that Gross Federal Debt will rise from $5.475 trillion in 1998 to $6.222 trillion in the year 2008. In other words, even if all of the projected surpluses of CBO come true over the next 11 years, and even if all of the $1.6 trillion in projected budget surpluses come true, we will still face a massive mountain of Gross Federal Debt which will have grown from $5.5 trillion to $6.2 trillion over this same period. Mr. President, I have attempted in these remarks to paint a realistic picture of the condition of the Federal budget, including a true picture of whether we are incurring deficits or surpluses and whether we are increasing or decreasing overall Federal debt in the coming 10 years. It should be perfectly clear to any rational person that there is no real surplus and that, even if CBO's latest 10-year forecast proves to be accurate and if Congress restrains itself from cutting taxes--there is a great hue and cry, a great push for cutting taxes--even if Congress restrains itself from cutting taxes or increasing spending, Gross Federal Debt will continue to rise by some $700 billion, even under CBO's rosy scenarios. Furthermore, this could all change massively, as I have pointed out, with one recession like the one suffered by the Nation in the early 1990s. It is against this backdrop that the House recently passed what they call the ``Taxpayer Relief Act of 1998.'' According to the Joint Committee on Taxation, this House-passed tax cut would reduce Federal revenues by $80 billion over the next 5 years and by $176 billion over the next 10 years. Keep in mind that tax cuts, once enacted, are permanent and the loss in revenues to the U.S. Treasury continue not just for 5, 10, or 15 years, but forever, unless they are repealed. So, if the Congress lost its collective mind, and if the President joined Congress in losing our collective mind and signed such a reduction in revenues, those permanent tax cuts would come to pass regardless of whether CBO's latest projections of unified budget surpluses come true or not. Furthermore, we should keep in mind that over the next 5 years, there is no budget surplus at all--none--if one excludes the Social Security Trust Fund surpluses from the calculations. In effect then, the House-passed tax bill uses Social Security to pay for its $80 billion, 5-year cost to the Treasury. We should also keep in mind that the Gross Federal Debt is going to continue to rise even without any tax cut. It follows that such a tax cut would increase the Federal debt by $80 billion over the next 5 years; by $176 billion over the next 10 years; and by ever-increasing amounts each year thereafter. It should be noted, Mr. President, that the House-passed tax cut bill is in direct violation of the 1990 Budget Enforcement Act. That Act, as I stated earlier in my remarks, requires that any increase in mandatory spending or any tax cuts must be fully offset under what is called the ``Pay-As-You-Go'' rules. Those rules, which have been wisely extended through the year 2006 by the Budget Enforcement Act of 1997, allow for a point of order against any such un-offset tax cut. This means that the House-passed tax bill when, and if it comes before the Senate, will be subject to a 60-vote point of order. I hope that Senators will come to their senses on both sides of the aisle and do what they know is right for the American people and vote against any tax bill that reduces Federal revenues, keeping in mind that even if all of the projected surpluses of CBO come true over the next 11 years, and even if all of those surpluses are applied to the Federal debt, we will still have massive Gross Federal Debt, which will grow from $5.5 trillion to $6.2 trillion over this same period. To fritter away billions of dollars at this time on massive tax cuts would be the height of irresponsibility and would signal to all the world that we cannot be relied upon to rid this great Nation of not only its deficits, but also its gigantic national debt as well. And that should be our solemn goal. It is ironic that after struggling mightily to overcome the 12 years of recordbreaking, triple-digit-billion-dollar Federal budget deficits under Reagan and Bush, the Republicans are now calling for cutting Federal revenues by huge amounts based on what could turn out to be flimsy projections by the Congressional Budget Office, which, even if they come true, will have done little more than put a small dent--just a small dent--in overall Federal debt. Mr. President, you do not need any poll to do the right thing here. I say to Senators, this is a no brainer. Mr. President, I yield the floor and suggest the absence of a quorum.

Mr. BYRD

Mr. BYRD. Mr. President, I am pleased to be a cosponsor of the Senate Concurrent Resolution offered by the Senator from Pennsylvania, Senator Specter. In brief, the resolution calls for action by the U.S. government on several fronts to address the steel import crisis. More importantly, it reassures the U.S. steel industry, and steel workers, that the United States Congress is concerned about the state of the steel industry and is committed to ensuring that a fair trade policy prevails. The aim of this resolution is straightforward: to respond to the import crisis affecting the domestic steel industry. In this regard, the Senate Concurrent Resolution calls for enforcement of U.S. trade laws, equitable sharing of steel import surpluses, the establishment of a task force to monitor U.S. imports of steel, and a report from the President with a plan to respond to the surge of steel imports. Senator Specter's resolution is a companion to H. Con Res. 328. The resolution is supported by the leadership of the Senate Steel Caucus and it is endorsed by the domestic steel industry. For those not familiar with the steel import crisis, as the markets have struggled in Asia, Russia, and other regions of the world, and the purchasing power evaporates within these countries' borders, foreign steel producers are diverting record levels of steel products from stalling economies into the United States. Desperate to find hard currency, our trading partners are flooding the U.S. market with imported steel that is creating a glut that is placing thousands of U.S. steel jobs at risk. This is a looming crisis that could have a domino effect, which may jeopardize the security of families across the nation and the communities in which they live. Regrettably, the impact of current trade and capital flow throughout the so-called modern global economy is becoming a familiar story. The effects of far-flung economic trouble not only play havoc with the U.S. steel industry, but also ripple through the auto industry, the farming industry, and a host of other domestic industries. Live and let live? Is that the appropriate U.S. reaction to this crisis? Through the International Monetary Fund, the United States reacts to the crises of our trading partners overseas with generous participation in bailout programs. We have risen to the occasion many times to help other nations facing grave economic dilemmas. But, can we afford to continue to help if our trading partners thank us by attempting to export their way out of their crises at the expense of the U.S. economy? I would like to share one sentiment expressed to me about this situation in a letter by Mr. Jim Bowen, President of the West Virginia AFL-CIO: ``Working Americans have always generously helped out those in need, but they can't be expected to do so by sacrificing their jobs and their families' security.'' And hear the words of Mr. Stephen Parks, a manager with Ameristeel in St. Albans, West Virginia: ``We are cost- competitive with the best in the world. But we cannot compete fairly with foreign economies driven by the impetus to export their own unemployment through subsidization or which export solely for the purpose of acquiring tradeable currency at any cost.'' Many of my colleagues have recently urged action on behalf of the nation's farmers. I certainly sympathize with the problems facing American farmers whose overseas markets have been adversely affected by these same economic downturns. This is no less a crisis, and, equally, deserves swift and sure action by the Congress. As this Congress begins the serious business of examining the international financial crisis, and formulating the appropriate U.S. response, the measures called for in this resolution are simple logic. After hearing the words of managers and workers in the U.S. steel industry, I believe that this resolution might also accomplish another worthy goal: restoring the confidence in our international trade agenda. Let us be realistic. This international steel crisis did not occur overnight. In fact, the crisis is in part a result of decades-long government-sponsored illegal subsidies by our trading partners that this nation has not aggressively sought to correct. These subsidies have kept too many steel producers around the world eagerly fostering overcapacity because of unfair competitive advantages. Now, not only are the steel producers in Asia, Russia, and other parts of the world suffering, but so are American steel workers, who have played fair, and trusted our trade enforcement mechanisms. As called for in the resolution being submitted today, we must move forward with the full and timely enforcement of our trade laws. We must do that before any serious thought is given to the adoption of trade measures to liberalize trade with additional nations not currently on the books. Existing trade agreements must be enforced and the long-term implications of these agreements must be understood. I hope that the responsible government trade officials share my concern. I understand that the United States Trade Representative, Charlene Barshefsky, met with steel industry representatives in early September and, while I was unable to attend that meeting, I am advised that in her press release the Ambassador reaffirmed the Administration's ``commitment to strong U.S. trade laws designed to prevent injury to U.S. industry and workers from unfair trade practices and from import surges, and to the expeditious and effective enforcement of these laws.'' I was pleased to learn of these encouraging words from the Ambassador, and I hope that she will be successful in carrying out this agenda. In this regard, I believe that this Congress should assist USTR in moving this agenda forward. Let us help the Ambassador by stating clearly to our trading partners the Congress' stance on this matter. I am confident that Ambassador Barshefsky intends to negotiate the deal of all deals. In good faith, she intends to negotiate a global free trade paradise where all can compete on a level and transparent playing field. Unfortunately, I have heard that very intent voiced many times by U.S. and foreign negotiators--and so have the U.S. steel workers. They heard it in 1974, during the Tokyo Round of the General Agreement on Tariff and Trade (GATT). That agreement cost this country hundreds of thousands of steel jobs. Many listeners may remember the result that deal had on Allentown. Well, I also remember Clarksburg, Wheeling, and Weirton, West Virginia, all losers in that trade agreement. The U.S. steel industry has stuck it out, and U.S. steel producers did what the new 1974 trade rules said to do: restructure and modernize, and become the most efficient producers of steel in the world. The deal struck in that agreement was that the industry was to accomplish this restructuring and modernization and, then, the government would ensure that there would be a level global playing field on which to compete. However, today, over 20 years later, the U.S. steel industry continues to face unfair trade practices from every corner of the world. In the global free trade garden of paradise, apparently, some players keep eating off the forbidden subsidy tree, because the so- called paradise is a pretty shabby place for U.S. workers. In closing, I want to address the Constitutional component of supporting this resolution. This debate is a good place for Congress to reflect the myths and the realities of our current trade policies. It is time that the Congress takes seriously its constitutional role in the regulation of foreign commerce. The Constitution vests the Congress with the power ``to regulate commerce with foreign nations.'' It is the task of Congress to understand the benefits and risks of global trade, but to promote only trade policies that are fair to all Americans, whether they be steel or auto workers, farmers, or bankers. I urge my colleagues to support the important steel resolution offered by Senator Specter. Regulation of foreign commerce is the Constitutional responsibility of Congress. It will assist the USTR in negotiating firm agreements. It will help restore the confidence of American workers in U.S. trade policy. I urge my colleagues to support this resolution.

Mr. BYRD

Mr. BYRD. Mr. President, I again thank the distinguished chairman for his outstanding service that he has performed in the interest of the Constitution, the interest of this institution, and the interest of the liberties of the people which we are all trying to protect in this measure. Mr. President, I believe there--we only have less than 2 minutes; is that right?

Mr. BYRD. I may have misunderstood the Senator. I thought the Senator was suggesting that the 150 days is not enough and that he would like to see 30 additional days. That would certainly seem to be germane as far as I am concerned.

Mr. BYRD. Mr. President, I ask unanimous consent the Senator have an additional 5 minutes.

Mr. BYRD. And that that time not be charged against either side.

Mr. BYRD. The Senator from Illinois has suggested an amendment, Madam President, as far as I am concerned, I could accept. Why not let us invoke cloture; that amendment is certainly a germane amendment, and have the Senator put it up for action by the Senate? I am one who would vote for it.

Mr. BYRD. Madam President, will the Senator yield further?

Mr. BYRD. Madam President, I thank the distinguished Senator from Tennessee, Mr. Thompson, who is chairman of the Governmental Affairs Committee in the Senate. Let me commend him and his committee for reporting this bill. That committee has worked long and hard and very industriously in an effort to craft legislation that, in its final analysis, goes a long way toward protecting the prerogatives of the Senate under the Constitution, in particular with reference to the appointments clause, which appears in article II, section 2, of the Constitution. Madam President, nearly two weeks ago, on September 15th, I had the high privilege of addressing my colleagues in the Old Senate Chamber as part of the Leadership Lecture Series sponsored by the distinguished Majority Leader. In my remarks, I emphasized two points which I thought were important for all Senators to consider. First, I maintained that, if the legislative branch were to remain a coequal branch of our government, then it must be eternally vigilant in protecting the powers and responsibilities vested in it by the Constitution. Secondly, I noted that, throughout its history, the Senate has been blessed with individuals who were willing to rise above party politics, and instead act in the best interest of this nation and this institution. The legislation before us today goes to precisely the type of concern I raised in my remarks. S. 2176, the Federal Vacancies Reform Act, would strengthen existing law, thus protecting the Senate's constitutional ``Advice and Consent'' role in the process of nominating and appointing the principal officers of our government. And, because this bill speaks to the very integrity of the separation of powers and the system of checks and balances embedded in our Constitution, it is a measure which I believe all Senators can support, regardless of party affiliation. To give my colleagues some idea of the dimensions of this problem, earlier this year, I asked my staff to survey the various cabinet-level departments to ascertain how many of these so-called ``advice and consent'' positions were being filled in violation of the Vacancies Act. I can report that the trend is disturbing: Of the 320 departmental positions subject to Senate confirmation, 59, or fully 18 percent, were being filled in violation of the Vacancies Act. At the Department of Labor, for example, one-third of all advice and consent positions were being filled in violation of the Vacancies Act. At the Department of Commerce, 9 of 29, or 31 percent, of those positions were being filled in violation of the Act. And, at the Department of Justice, 14 percent of the advice and consent positions were being filled by individuals in contradiction of the Vacancies Act. Clearly a problem exists. As my colleagues know, the process used by the President to staff the executive branch is laid out in the Appointments Clause of the Constitution. That clause, found in Article II, section 2, states, in part, that the President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Because vacancies in these advice and consent positions may arise from time to time when the Senate is not in session, the Constitution also provides that The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. Madam President, in an effort to secure the Senate's constitutional authority under the Appointments Clause, Congress established a statutory scheme that lays out not only the order of succession to be followed should one of these senior positions become vacant, but which also sets a strict limit on the length of time an individual may temporarily fill such a position. That legislation, which has been in place since July of 1868, is known as the Vacancies Act, and is codified in sections 3345 through 3349 of Title 5 of the U.S. Code. For those who may not be familiar with the Vacancies Act, this is the essence of what it says. First, section 3345 provides that if the head of an executive department--a member of the President's Cabinet, for example--dies, resigns, or is otherwise sick or absent, his or her first assistant shall perform the duties of that office until a successor is appointed. Second, section 3346 states that when a subordinate officer--generally those positions at the deputy and assistant secretary levels--dies, resigns, or is otherwise sick or absent, that officer's first assistant also moves up to take over the duties of the office until a successor is appointed. And third, despite either of those self-executing methods for temporarily filling a vacant position, section 3347 authorizes the President to direct any other officer, whose appointment is subject to Senate confirmation, to exercise the duties of the vacant office. In any event, absent a recess appointment, those three sections of the Vacancies Act provide the exclusive statutory means of temporarily filling a vacant advice and consent position. But whichever method is used--either automatic succession, as contained in sections 3345 and 3346, or presidential selection, as contained in section 3347, Madam President, the key to protecting the Senate's constitutional role in the appointments process lies in section 3348 of the Vacancies Act. That section plainly states that, should one of these positions become vacant due to death or resignation, it shall not be filled on a temporary basis for more than 120 days, unless a nomination is pending before the Senate. Originally, Madam President, when the legislation was enacted in 1868, the period of time was only 10 days. And then in 1891 that period was extended to 30 days. And in 1988 that period was extended to 120 days. It is precisely that time restriction on the filling of these vacant positions that is, I believe, the linchpin of this issue. Without that barrier, without the 120-day limitation on the length of time a vacancy may be temporarily filled, no President need ever forward a nomination to the U.S. Senate. Instead, the President--any President, Democrat or Republican--can staff the executive branch with ``acting'' officials, who may occupy the vacant position for months, or even years at a time, as the distinguished manager of the bill, Mr. Thompson, has already alluded to. In short, to eliminate the time constraint in the Vacancies Act, or to effectively eliminate it by tolerating noncompliance, is to wholly undermine the integrity of the U.S. Senate's constitutional advice and consent authority. So this is a serious matter. Yet, despite the seemingly plain language of this 130-year-old Act, the Department of Justice has challenged the force of the Act on the grounds that those provisions are not the only statutory means of filling a vacancy. In fact, for more than a quarter of a century, through Democratic administrations and Republican administrations, the Justice Department has simply refused to comply with the requirements of the Vacancies Act. Instead, the Department claims that the Act is somehow superceded by other statutes which give the Attorney General overall authority to run the Department of Justice. On December 17, 1997, I wrote to the Attorney General requesting clarification of the Department's position with respect to the Vacancies Act. Specifically, I wanted to know whether or not the Attorney General believed that this 130-year-old statute had any application to the Justice Department. On January 14 of this year I received a response to my letter in which the Department reiterated its position that the Attorney General's authority under sections 509 and 510 of Title 28 ``. . . is independent of, and not subject to, the limits of the Vacancies Act.'' For the benefit of those who have never read those two sections of Title 28, let me refer to the relevant language so that everyone will understand the fallacy of the Justice Department's argument. Section 509 states that, with certain exceptions that are not at issue here today, ``all functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General. . . .'' Section 510, meanwhile, states that ``the Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.'' Those two very broad, very general provisions--the first placing all functions of the Department under the control of the Attorney General, and the second allowing the Attorney General to delegate those functions--are being used to justify what amounts to an end run around the Vacancies Act, which is protective of the Senate's rights under the Appointments Clause of the Constitution. As I have noted, defiance of the plain language of the Vacancies Act is not an isolated case. In 1973, for example, the Department of Justice refused to admit that L. Patrick Gray, who had been appointed acting Director of the Federal Bureau of Investigation following the death of J. Edgar Hoover in May of 1972, was serving in that capacity in violation of the time limitation contained in the Vacancies Act. In 1982, the Department's Office of Legal Counsel dismissed out of hand-- dismissed out of hand the restrictions of the Vacancies Act as simply ``inapplicable'' to the Department--meaning the Justice Department. In 1984, the Department again asserted that ``. . . the specific provisions of 28 U.S.C. Sec. 510 override the more general provisions of the Vacancies Act.'' And, in 1989, the Justice Department determined that the Vacancies Act ``. . . does not extinguish other statutory authority for filling vacancies and that the Act's limitations do not apply to designations made pursuant to those authorities.'' Madam President, I submit that that position is untenable, and is untenable for two simple reasons: First, there is no historical basis-- absolutely none--for the suggestion that Congress ever meant sections 509 and 510 of Title 28 to exempt the Department of Justice from the requirements of the Vacancies Act. And, secondly, the logical extension of the Department's argument--now get this, the logical extension of the Department of Justice's argument would render meaningless-- meaningless the entire advice and consent prerogative contained in the Appointments Clause, article II section 2, of the U.S. Constitution. Turning first to the Department's claim that sections 509 and 510 of Title 28 somehow preempt the Vacancies Act, I note that those provisions trace their origin to, and are a codification of, a 1950 congressional action known as Reorganization Plan No. 2. As my colleagues may know, throughout the 1950's, Congress passed a series of plans designed to reorganize the various executive branch departments. The purpose of Plan No. 2 was to establish direct lines of authority and responsibility within the Department of Justice, and to give the Attorney General overall responsibility for the effective and economic administration of the Department. However, there is nothing--I repeat, absolutely nothing--in the language of Plan No. 2 that would indicate that it was ever meant to supersede the Vacancies Act. On the contrary, as the Senate's report which accompanied the measure made clear at that time, and I quote from that committee report, ``Plan No. 2 does not give to the Department of Justice any more powers, authority, functions or responsibilities than it now has.'' What could be more clear? Finally, it is worth noting that the general language contained in Plan No. 2 is virtually identical to language found in the reorganization plans for the Departments of the Interior, Labor, Commerce, and Health and Human Services. In fact, every one of the 14 cabinet-level departments has these general provisions in its basic charter. Every one! Every one of the 14 cabinet-level departments. And it is precisely that common linguistic thread that leads to the second fatal flaw of the Justice Department's analysis. If we accept this fallacious argument--that these broad, housekeeping provisions somehow override, or are, in the Department's words, ``independent of, and not subject to'' the more specific provisions of the Vacancies Act--then any executive branch department--any executive branch department whose functions are vested in the department's head, who, in turn, can delegate those functions to subordinate officers, would be exempt from the provisions of the Vacancies Act. Of course, exemption from the Vacancies Act would then mean that an individual could be appointed to an advice and consent position for an indefinite period of time. Who thinks that the Founding Fathers meant for that to be? Consequently, to accept the position of the Department of Justice is to accept the position that the United States Senate--that is this body--with the concurrence of the House of Representatives, has systematically divested itself of its constitutional responsibility to advise and consent to Presidential nominations. Madam President, I wonder how many Senators believe that. I wonder how many of my colleagues are prepared to accept such a specious argument. How many of my colleagues truly believe that the Senate has simply handed over one of the most effective checks against the abuse of executive power? How many will agree that we have given away what the Supreme Court has rightly characterized as ``. . . among the significant structural safeguards of the constitutional scheme''? It was referring to the Appointments Clause in the Edmund v. United States case of 1997. I, for one, do not subscribe to that specious argument, nor do I believe that any other Senator would support such a contention. After all, don't we swear an oath, ``so help me God,'' to support and defend the Constitution of the United States, before we enter into office? At the same time, it is not fair to say the fault for this situation lies entirely in the executive branch; a part of it lies with us. An honest assessment of this matter will show that Congress must bear a good deal of the responsibility for its failure to aggressively demand strict compliance with the provisions of the Vacancies Act. For 46 years I have been in the Congress, and I have noticed a steady decline in the desire, the willpower, and the determination of Members of Congress to speak out in protection of the powers of the legislative branch. When I came here it wasn't like that, but more and more and more, it seems that there is an inability, or at least an unwillingness, on the part of Congress to stand up in support of its constitutional powers against the executive branch and those in the executive branch who would make incursions into and upon the constitutional powers of the Congress. Each of us, individually and collectively, must concede that this institution, this Senate, and the other body, have been less than strenuous in protecting the constitutional rights and powers of the legislative branch. Congress did, of course, make an attempt to assert the supremacy of the Vacancies Act when it last amended the statute some 10 years ago. That was the second year of the 100th Congress. I was majority leader in the Senate at that time, and on April 20, 1988, the Senate's Committee on Governmental Affairs, in a report accompanying a broader bill of which the Vacancies Act amendments were a part, stated thusly: . . . the present language, however old, makes clear that the Vacancies Act is the exclusive authority for the temporary appointment, designation, or assignment of one officer to perform the duties of another whose appointment requires Senate confirmation. The exclusive authority of the Vacancies Act would only be overcome by specific statutory language providing some other means for filling vacancies. As such, the Committee expressly rejects the rationale and conclusions of other interpretations of the meaning and history of the Vacancies Act. . . . That was the language that was contained in the 1988 committee report. And yet, despite that language, it remains a fact that the Vacancies Act has not been complied with. As a result, the time has come, and the time is now, for Congress to take the matter into its own hands and address the situation foursquare, right head on. That is what we are attempting to do here. I believe that S. 2176, the Federal Vacancies Reform Act, is the vehicle that will accomplish that goal. This bill was introduced on June 16 by Senators Thompson, Thurmond, Lott, Roth, and myself. Three months before, on March 16, I had introduced S. 1761, the Federal Vacancies Compliance Act. Although my bill took a slightly different approach, I believe it is fair to say that it served as a basis for the bill before us today. I was privileged, through the courtesy of the distinguished chairman of the committee, Mr. Thompson, to be the lead witness at the March 18 hearing held by the Governmental Affairs Committee. Senator Levin was there; Senator Glenn was there; Senator Durbin was there; and other Senators, I believe. This legislation here today is the result of months of study, months of discussion, and months of difficult negotiation. By extending the time limitation on how long an acting official may serve, it is a bill that clearly recognizes the realities inherent in today's nominating process. It is a bill that goes out of its way to accommodate the inauguration of a new President by giving the new administration up to 8 months to forward nominations, something not currently contained in the Vacancies Act. So we are going the extra mile in an effort to accommodate the problems of the executive branch. And it is a bill that works to encourage the timely forwarding of nominations. Most importantly, though, it is a bill which will, once and for all, put an end to these ridiculous, specious, fallacious arguments that the Vacancies Act is nothing more than an annoyance to be brushed aside. Madam President, it is time for this institution to state, in no uncertain terms, that no agency--no agency--will be permitted to circumvent the Vacancies Act, or any other Act for that matter, designed to safeguard our constitutional duties. We cannot, as James Madison warned in Federalist 48, simply rely upon the ``parchment barriers'' of the Constitution if we are to remain a coequal branch of this government. I urge my colleagues to reflect upon this issue, and, in so doing, to hopefully conclude, as I have, that what is at stake here is something much greater than the Vacancies Act. I hope all Senators will understand that, each time a vacancy is filled by an individual in violation of the Vacancies Act, yet another pebble is washed off the riverbank of the Senate's constitutional role, and that, as more and more of these pebbles tumble downstream, the bank weakens, until, finally, it collapses. But above all, I hope my colleagues will agree that we have a responsibility to the American people and to this institution, the Senate of the United States, to shore up that riverbank, to stop the erosion that has taken place, and to reverse the wretched trend of acquiescing on our constitutional duties that seems to have so ominously infected this Senate. Let us wait not a day longer in defending the Senate's rights of the Constitution. We are told by the great historian Edward Gibbon that the Seven Sleepers of Ephesus were seven youths in an old legend who were said to have fled to the mountains near Ephesus in Asia Minor to escape the prosecution of the emperor Decius, who reigned in the years 249-251 A.D. Pursuers discovered their hiding place and blocked the entrance. The seven youths fell into a deep slumber, which was miraculously prolonged, without injury in the powers of life. After a period of 187 years, the slaves of Adolius removed the stones to supply materials for some rustic edifice. The light of the sun darted into the cavern and awakened the sleepers, who believed that only a night had passed. Pressed by the calls of hunger, they resolved that Jamblichus, one of their number, should secretly return to the city to purchase bread. The youth, Jamblichus, could no longer recognize the once familiar aspect of his native country. His singular dress and obsolete language confounded the baker, and when Jamblichus offered to pay for the food with coins 200 years old and bearing the stamp of the tyrant Decius, he was arrested as a thief of hidden treasure and dragged before a judge. Then followed the amazing discovery, said Gibbon, that two centuries had almost elapsed since Jamblichus and his companions had escaped from the rage of a pagan tyrant. The emperor Theodosius II believed a miracle had taken place, and he hastened to the cavern of the Seven Sleepers, who related their story, following which they all died at the same moment and were buried where they had once slept. Madam President, the moral of the story, as far as I am concerned, is this: The Senate has slept on its rights for all too many years. Let us awaken to the threat posed by circumventions by the executive branch of the appointments clause and act to preserve the people's rights and the people's liberties, assured to them by the checks and balances established by our forefathers. In the proverbs of the Bible, we read: ``Remove not the ancient landmark, which thy fathers have set.'' The landmark of the appointments clause was established by our forefathers. We can suffer its removal only at our peril, at the Senate's peril, and at the people's peril. Let us, as Senators, not be found wanting at this hour. It would require more than ``a mere demarkation on parchment'' to protect the constitutional barriers between the executive and legislative departments. It will require nothing less than an ambition that counteracts ambition. Senators, vote for this legislation. Vote for cloture today so that we can move on with the legislation. In the words of Hamilton, in the Federalist No. 76, ``It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to preventing the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. And, in addition to this, it would be an efficacious source of stability in the administration.'' Madam President, I yield the floor. Mr. LEVIN addressed the Chair.

Mr. BYRD. Yes. I expect the Parliamentarian is right on that. I would not argue with that, nor would I probably support it. If the Senator will allow me, the Constitution doesn't say that the Senate has to confirm the nominees. It simply says the President cannot have the full responsibility and power himself to name people to important positions. This is a matter that has to be shared under the Constitution between the President and the Senate. This constitutional provision--the appointments clause--I am trying to protect today is being given the runaround by the Justice Department and several other Departments, and I want to protect that constitutional power that is given to the Senate. As to whether or not the Senate acts on nominations, the Constitution doesn't require the Senate to act, but I think that the Senate does act, and would continue to act, on nominations within a reasonable period of time. Having been the majority leader of the Senate during three different Congresses, I can say to the distinguished Senator that when I was majority leader we had nominations left on the calendar at the end of a Congress, in all three of the Congresses in which I served as majority leader. When we adjourned sine die that Executive Calendar was not wiped clean. We all did the best we could, but we did leave some nominations on the calendar. And I certainly share the Senator's feeling that the Senate ought to act expeditiously, in a reasonable fashion, but when it comes to requiring the Senate to act on all nominations, I don't think the Constitution requires that. And I might have to part company with the Senator at that point. But some of his other suggestions, I think, are very well made.

Mr. BYRD. Madam President, will the Senator yield?

Mr. BYRD. And I thank him for yielding. The Senator, as I think I understand, suggested that if we are going to deal with one part of the equation, namely, the nominating process by the executive, and protect ourselves in that regard, we ought to be equally interested in dealing with the other half of the equation by requiring action by the Senate to confirm or reject nominees. May I with great respect suggest--and I am doing this for the record. I am sure I am not ahead of the Senator in thinking this--I am trying to address the constitutional side of the equation and stop the administration, not only this administration but also previous administrations, from conducting a runaround of the constitutional advice and consent powers of the Senate. I am suggesting we deal with that constitutional side of the equation. Now, the other side, which the distinguished Senator mentions, if he will pardon my saying so, I think what he is talking about is the political side of the equation. That part is not included in the Constitution. The Constitution doesn't require the Senate to act on any nomination. But that is the political side. I would like to deal with the constitutional side, and that is the purpose of this legislation. And then we can do the best we can on dealing with the political side. The Senator is quite right; neither side comes into this matter with perfectly clean hands. That is an old equity maxim. It reminds me of Themistocles who happened to say, one day, ``that he looked upon it as the principal excellence of a general to know and foresee the designs of the enemy;'' Aristides answered, ``that is indeed a necessary qualification; but there is another very excellent one, and highly becoming a general, and that is to have clean hands.'' The same thing would apply here. Neither party has clean hands when it comes to moving all nominations sent by a President to an up or down vote. As majority leader during the Presidential years of Mr. Carter and again during the 100th Congress, I can remember that the calendars were not always cleared of items that had been reported by committees when adjournments sine die occurred. I hope that we will not get bogged down in this way about a purely political matter when a far more important constitutional matter, important to the prerogatives of the Senate in the matter of appointments is at hand. And let me state to the Senator the number of nominees that were left on the executive calendar when I was majority leader, at the time of sine die adjournment. When I was majority leader--I will just take one Congress, for example, the 100th Congress.

Mr. BYRD. I will just say this. To show that we all sometimes fail to have clean hands, when I was majority leader in the second session of the 100th Congress--I don't mind saying this--the civilian nominations totaled 516, including 112 nominations carried over from the first session; 335 of these were confirmed, 170 were unconfirmed, and 11 were withdrawn. So, this is a failing that can be ascribed to both Democrats and Republicans when they are in control of the Congress. But, yet, I come back to my original premise; namely, that the Constitution did not require me to call up all those nominations off the calendar. It didn't say I had to do that. But it did say, with respect to nominations, that appointments to vacancies were to be shared by the President and the Senate, and that is what this bill is contemplating to enforce and what I am fighting for today. I thank the distinguished Senator.

Mr. BYRD. Mr. President, will the Senator yield? I hope he will forgive me.

Mr. BYRD. I am not here to engage in challenging his statements. He is one of the fine Members of this Senate; one of the newer Members, in a way. He served a long time in the House of Representatives. He comes to the Senate well prepared to be a good Senator, and he is a good Senator. But, again, I am concerned about that part of the responsibility which the Constitution places on both the executive and the legislative. I think the legislative is being given the run-around by the Judiciary Department. It has not just been during this administration. It has been, as I say, going on for over 25 years, and this is an opportunity for us to correct that, I hope we would vote for cloture and perhaps some of the Senators' amendments--which are certainly worthy of consideration and probably of adoption, some of them--could be given a chance to be offered and debated. I hope we would invoke cloture, indeed, to have an opportunity to do that.

Mr. BYRD. Madam President, will the Senator yield?

Mr. BYRD. How much time does the distinguished Senator from Connecticut wish to----

Mr. BYRD. If the distinguished Senator from Connecticut will yield me a little of his time.

Mr. BYRD. Mr. President, I am reminded of that situation which occurred in 63 B.C. Sallustius writes about. And it is referred to as the conspiracy of Catiline. After Caesar had spoken in the Roman senate, protesting against the death penalty for the conspirators, for the accomplices of Catiline, Cato the Younger was called upon by Cicero, the consul, to speak. Cato demanded that the accomplices of Catiline be put to death under the ancient laws of the republic. From Cato's speech I quote only the following strain: ``Do not think that it was by arms that our ancestors raised the state from so small beginnings to such grandeur, but there were other things from which they derived their greatness. They were industrious at home, just rulers abroad, and into the Senate Chamber they brought untrammeled minds, not enslaved by passion.'' Now, Mr. President, I urge my colleagues in the Senate not to let their minds be trammeled with passion. Keep them untrammeled and focused on the injury that is being done to the Senate by the executive department in the flaunting and circumventing of the appointments clause, which this legislation addresses and is intended to secure for the Senate its rights and prerogatives under the Constitution. Democrats and Republicans who reverence the Constitution and who pride themselves in having been given the honor to serve in this institution--the legislative branch--I hope will stand up for the institution and bind ourselves to the mast of the Constitution, as did Odysseus when the divine Circe bade him to stay away from the Sirens' isle. I hope that we will keep in mind that we are making several improvements in this bill as it is written. And as the distinguished chairman of the Governmental Affairs Committee has so eloquently pointed out within the last few minutes, even without amendments this bill is a liberal advancement--liberal from the standpoint of the administration, whatever administration it might be, Democratic or Republican. It gives more time to the administration. So if we turn down this opportunity, I hope the opportunity will come again. But if it does not, then the administration is the loser, as well as the Senate--but the Senate is the greater loser because of the constitutional requirements under the appointments clause which give the Senate a share in the appointments of individuals to important positions in the executive branch and the judicial branch. I yield the floor.

Mr. BYRD

Mr. BYRD. Mr. President, I thank the distinguished Senator for his observations. I am grateful for his presence at this time and grateful for the perceptions that he has expressed to us based on his experiences in living in the great State of California. I thank him. I think he is a scholar, a real scholar of our form of government and interested in keeping this republic as Benjamin Franklin so wisely admonished the lady. I thank him very much.

Mr. BYRD

Mr. BYRD. Mr. President, I will not object. I have been waiting here and am very happy to wait longer. I understood the Chair wanted to be recognized for 2 or 3 minutes, also.

Mr. BYRD. Mr. President, reserving the right to object.

Mr. BYRD. I am delighted to listen to what the distinguished Senator from Texas has to say.