Tom Harkin

Mr. HARKIN

Mr. HARKIN. My friend said the President ought to consider the public record, but there will be no public record of what the Secretary of Agriculture and President do under this amendment. There is nothing in here that I can find that requires the Secretary, in reviewing an agency action and determining whether to send it to the President, to do all of this in a manner consistent with the requirements of the Administrative Procedure Act. In other words, nothing in this amendment requires that these activities by the Secretary must become part of the public record, with hearings and an opportunity for members of the public to participate. Usually, with any agency action, there is a 60- or 90-day period for the public to be heard on matters before a final decision is made, and those public comments go on the public record. That is not included in the amendment. Did I miss it?

Mr. HARKIN. I appreciate what my friend has said. To a certain degree, again, like the rest of this, when one reads it, it sounds OK, but that is pretty vague--human health or safety or national security. It is vague. Who decides what that is? Now I think we get to the nub of what is wrong with this amendment. Under the Administrative Procedure Act, any agency, if the agency is promulgating a rule, has to allow time and opportunity for public comment on the proposed rule. Under the Administrative Procedure Act, the public must be involved, the public must be heard on the record, and the agencies have to take the public's input into account when they are promulgating the rule. The amendment of the Senator from Missouri does not allow for that. This says the Secretary makes these decisions, there is no public comment, and then it goes to the President. Did I miss a part of it?

Mr. HARKIN. I yield to my friend.

Mr. HARKIN. Madam President, I was sitting here thinking about this amendment my friend from Missouri has offered. I thought of another instance of how it might affect farmers. I forgot about the Secretary of Transportation. There are safety rules that the Department of Transportation promulgates for farm equipment on highways. There are weight limits, headlights, taillights, and other safety regulations that the Department of Transportation has mandated for farm equipment on highways. Some may argue that those requirements are burdensome. I sympathize with you, but you understand it is for the public good that the Department of Transportation says you have to have certain restrictions, certain lights, certain warning signs on farm equipment on highways. Taking this example of what the Senator has said, if we give this power to the Secretary of Agriculture, the Secretary of Agriculture will say: That is burdensome, that is an economic hardship on our farmers that they have may have to change some practices; therefore, the President can reverse it. The Secretary would find it would have a significant adverse economic impact.

Mr. HARKIN. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HARKIN. I say to my friend, I don't see that. The President can do all this and notify Congress. We don't have any power to do anything, according to this.

Mr. HARKIN. I say to my friend that the Fish and Wildlife Service has to abide by the Administrative Procedure Act and the laws passed by Congress. The Congress has every power to review and to keep the Fish and Wildlife Service--as the Senator knows, because we have done it-- from doing what they want to do. We have that power. I don't see that in the amendment here. We have the power now. I don't see it in this amendment.

Mr. HARKIN. I am glad to yield.

Mr. HARKIN. Madam President, I yield myself such time as I may consume. This is a good debate. I enjoy my friend from Missouri, south of the Iowa border. I would be glad to meet on the dividing line with Missouri and Iowa and have a debate. We will invite the farmers in and talk to them about this because this is a double-edged sword. What happens if this power goes to the Secretary of Agriculture? This is a dangerous road--say this is extended to all agencies. Then the Secretary of the Interior gets the same power. Let's say USDA makes some decision that we think is beneficial for farmers and helps farmers, and then the Secretary of the Interior says that decision affects fish and wildlife. The Secretary of Interior can just go to the President and reverse that decision. That would not be good for the farmers. He overturns it, amends it, or precludes it--those three words that the Senator has in his bill. That is the double-edged sword. We just can't chance that. The best protection our farmers have out there right now is those of us sitting on this floor today, including my friend from Missouri and the occupant of the chair. I don't care if they are Democrats or Republicans. The best protection for our farmers and our people in rural America is the Congress of the United States, the House and Senate, Republicans and Democrats alike--not the administration. The administrations--I don't care who they are, Republican or Democrat, at the White House--and I have seen it in my 27 years here--give scant attention to rural America. I know this amendment by my friend from Missouri is well intentioned. I know what he is trying to do. But I have to tell you, the other edge of that sword can be mightier than the edge of the sword he is trying to give to the Secretary of Agriculture. Just look at the history of past administrations and then ask: How often do they come down on the side of farmers? How often do they come down on the side of other interests? That ought to tell the tale right there. No, this is not in the best interest of farmers. The best interest of farmers is to keep the power here in Congress and in committees, where we can fight for our rural people and our farmers and not give that power to the President of the United States.

Mr. HARKIN. I say to my friend from Missouri, we do have a counsel at the Department of Agriculture who has every ability to do exactly what the Senator is talking about. The Senator says, take it to committee. I say to the Senator, take this to the committee. Let's have the committee take a look at this and not do it on the floor. Just as the Senator says we ought to take it to the Small Business Committee, that is my suggestion. And why stop with small business? Why don't we do veterans? Why don't we do the same thing for our veterans in this country, who, time and time and time again, are affected by agency decisions in other parts of the Government? Why don't we have the Secretary of Veterans Affairs have the same power that the Senator from Missouri wants to give to the Secretary of Agriculture? Why not do the same thing for our veterans and give them that kind of protection that they need, so that the President, without even consulting Congress, could overturn, amend, reverse any agency decision if he believes it adversely affects veterans in this country? Why don't we give that power to the Secretary of Veterans Affairs? Why stop there? Why not give the same power to the Secretary of the Interior to review any agency action that might adversely affect a public park or interfere with the enjoyment I might have in going to a public park? And then let the President amend it, reverse it, without ever consulting with Congress? Why stop there? Why don't we do the same thing for the Secretary of Labor? Let the Secretary of Labor have the power to review any agency action by any Federal agency? And if the Secretary of Labor thinks the action will adversely affect a working person in this country, the Secretary of Labor could give it to the President and let the President reverse it, do away with it, and then just let Congress know. That is what the amendment of the Senator from Missouri says. It says the President can do all this. He can reverse it, preclude it, amend it. All he has to do is notify Congress of the decision to reverse, preclude, or amend the action and submit to Congress a detailed justification for the decision. We don't have any power. The President can do the whole thing. Why stop there? Let's think about other things. On the face of it, it might sound good. Then you start thinking about it and you say: Wait a second; we do could this for everything. What it means is that we would give the President of the United States the power to reverse, amend, preclude any agency decision without ever having to come to Congress. We have an Administrative Procedure Act, a law passed by this Congress to provide the President and the Federal agencies--the executive branch of Government--with the guidelines under which it can operate. We amend it from time to time. This is where this amendment ought to go, on the Administrative Procedure Act. But there are in the Administrative Procedure Act certain things that have to be done. One of the things that is most important of all is to insist that Congress play its constitutional role and exercises its constitutional right. The President can't just do these things without letting Congress have the power to say whether he can do it or not. Otherwise, we might as well shut our doors and go home; let the White House run everything in this country. This amendment on its face kind of sounds good. It sounds good. But I wonder if supporters of this amendment have really thought through all the implications of it and what it may mean. The farmers I talk to don't want another layer of bureaucracy from Washington. This would be yet another layer of regulatory burden when agencies are carrying out the law. And keep in mind, it could be something that maybe a farm group or a farm organization might want but the Secretary of Agriculture or the President may not like it. This is a two-edged sword. My friend from Missouri would say: Well, but it has to have an adverse economic impact on, or jeopardize the personal safety of, agricultural producers. That is pretty broad. I am sure any smart Secretary of Agriculture or President could say: We have this agency action out there, and we can interpret it so that it has an adverse economic impact on farmers. Therefore, we are going to reverse it willy-nilly because we, the President and the Secretary of Agriculture, have decided that it has an adverse economic impact on farmers. But the agency action may be in the best interest of farmers according to what some of us may think. Maybe some of us here may think that agency action may actually benefit farmers. Others may not think so. Maybe the President of whatever party may not think so. He can just reverse it. What power do we have? I guess we have to go through the legislative process of having a bill and getting it through committee. We have no say-so whatsoever in the President's decision to reverse, preclude or amend the agency action. I always say at this time of the year, when people come around with nice presents for you, that you had better unwrap the present and take a good look at it. Just because it has a fancy bow and fancy paper doesn't necessarily mean it is a gift. I say to my farmers and my friends in rural America, the amendment offered by my friend from Missouri is not a gift. This is a two-edged sword. It may help sometimes, but it may hurt. It may also open the floodgates for a lot of mischief in other Federal agencies that may adversely affect our farmers. Unwrap this package and take a look at it. You will see it is not what it is touted to be. I yield the floor and reserve the remainder of my time.

Mr. HARKIN. Having served on the Small Business Committee of the Senate now for 17 years, I am fully aware of all of the acts adopted in that Committee. But there is nothing in the Small Business Administration Act that allows the SBA Administrator to review all these agencies' actions and then give them to the President for further review, and that lets the President amend an action or reverse an action by himself, with only a notification to Congress. I ask the Senator from Missouri: Is there anything in the Small Business Administration Act, or any law passed by Congress, that gives the President that power?

Mr. HARKIN. Sure, I yield for a question or a response to my question.

Mr. HARKIN. Madam President, I yield to no one, including my good friend from Missouri, in fighting for our farmers and people who live in small towns in rural America to ensure that they are not set upon by the powers of the Federal Government in any way that would act to their detriment, their safety, their security, their well-being, their ability to make a living, or their ability to live as free and independent citizens of this country. But I have looked over this amendment. At first I thought it might be OK. I looked it over. Then it hit me that the Senator's amendment says basically that the Secretary of Agriculture may review any action proposed by any Federal agency. That is what it says here. It says: Any. It says: The Secretary may review any agency action proposed by any Federal agency. . .. And then it says: If the Secretary determines that a proposed agency action is going to do certain things with adverse effects on agricultural producers, then the Secretary can give it to the President for review. And then the President can reverse the agency action, just like that. He can reverse it, preclude it from going into effect, or he can amend it. Well now, I don't know. I would like to ask: Why don't we include small businesses? I know my friend from Missouri is a strong defender of small business. Why don't we include small businesses in this? Why don't we let the head of SBA review any agency action by any Federal agency to determine whether or not it is going to have an adverse effect on small business, and let the President then reverse or amend the agency action?

Mr. HARKIN

Mr. HARKIN. I yield for a question without losing my right to the floor.

Mr. HARKIN. I yield to Senator Brownback for a question without losing my right to the floor.

Mr. HARKIN. Does the Senator have any idea about how long?

Mr. HARKIN. If we can get agreement on 15 minutes on the amendment of the Senator from Kansas.

Mr. HARKIN. Yes, I yield for a question or a request without losing my right to the floor.

Mr. HARKIN

Mr. HARKIN. Mr. President, basically the situation is this. We are open for business again. We could take amendments right now, but I can see that there are not many people around right now. I want to point out again that we are on the farm bill. It is Thursday, December 13. It looks as if we will have another week and a day here. Probably next Friday we will adjourn. We have to get this farm bill done. As chairman of the Agriculture Committee, I believe I have been more than lenient and willing to let other bills come up--the Education bill next Monday, tonight the Defense bill--but now it is the hour when we have to focus on the farm bill, and we have to get it done. So I intend to object to going to anything else. We will remain on this farm bill. Obviously, conference reports are privileged, but for my part there will not be anything else to come before the Senate until we finish the farm bill. It will take unanimous consent to get off the farm bill and I, frankly, am serving notice right now that I am not giving consent for anything that keeps us from finishing the farm bill. If people want to vote against it and defeat it, that's their business. But at least let's get to a vote and let people know whether or not we are going to pass this farm bill or whether the will of the Senate is we do not want this farm bill. But we ought to have at least a vote this year. Farm groups all over America have been writing and calling, asking us when we are going to get this farm bill done. We have done our job in committee. I point out again and again, every single title of this farm bill was passed unanimously out of the committee except one, the commodity title, and that at least had some bipartisan support. I was fully aware that we would have an amendment on the floor by Senators Cochran and Roberts that was going to try to change the focus of the farm bill on the commodity title and some other titles. We have been wanting to see the Cochran-Roberts amendment. We have been hearing about it, but they will not bring it up. Where are they? They are not here. They were not here today, they were not here yesterday, and I daresay they will not be here tonight. Will they be here tomorrow? There is some sort of Cochran-Roberts amendment, but they will not offer it. It is an unusual way to make legislation unless--unless it is the desire and the plan to stop this bill from going through this year. Maybe that is the plan. We ought to have a finite list of amendments. We ought to know what amendments may be offered. I don't know what amendments are out there. I will ask tonight, and I will ask tomorrow, may we have a finite list of amendments? Is that possible? Would we be able to finish and go to third reading by Tuesday night? Would that be possible? Could we do that? Or by Wednesday? Could we be finished by Wednesday noon? How about Wednesday night? How many amendments do we need to consider? We can't seem to get anything agreed to on this. With all due respect to my friend and my ranking member, Senator Lugar, I just hope we can reach some kind of finite list of amendments and get them listed. I will be asking unanimous consent for that tomorrow. I will not tonight. But tomorrow I will ask unanimous consent whether by a certain time tomorrow we may have a finite list of amendments. If that is not acceptable, I will ask for such a list by Monday. I will see whether we can ever get to a point where we can have a finite list of amendments. If not, then it will be apparent that some do not want this bill to pass this year, for whatever reason. Again, I am not saying this is necessarily so. But I am saying that is what it appears to be. We have to move ahead on the bill. Yet here we sit. We could have amendments tonight. It is not unusual to be in session Thursday night. Senator Lugar and I are on the floor. We are willing to work. We are willing to stay here and listen to debate and have amendments and vote. However, no one else is here, except the occupant of the chair, of course. We just cannot seem to get the cooperation to get this farm bill moving. I hope tomorrow morning we will have some debate. I want to put on notice all offices who are watching on television right now that we will have amendments tomorrow. There will not be any votes tomorrow. That has already been agreed to. But we will have amendments tomorrow, and amendments will be debated. Then they will be set aside. We have tried to stack votes for them on Tuesday. There won't be any votes on Monday either. We will have debate tomorrow. We will stack the votes on Tuesday. But there will be debate on amendments tomorrow. I say to anyone who has amendments to offer that they should offer them tomorrow because, again, members ought to know we are going to vote on cloture again on Tuesday morning. If cloture happens, and they have not offered their amendments, they may be out of order. Again, if we don't get cloture on Tuesday, we will vote again on cloture on Wednesday. If we don't get cloture on Wednesday, we will vote again on it on Thursday. We will just see whether or not there are those in this body who want to absolutely stymie and stall and keep us from voting on a farm bill this year. I believe I have acted in good faith. We brought the bill out of committee. We brought it to the floor. It can be amended. I love debate. I thought we had some good amendments offered. We have had some good debates so far. I am just hoping we can bring this debate to a conclusion at some point early next week and get this bill out of the Senate. Again, I look around to see if there is anybody to offer any amendments. It is pretty quiet in here. Evidently, it looks as if we are not going to get any amendments here tonight. I yield the floor.

Mr. HARKIN. Mr. President, I ask unanimous consent that the McCain amendment No. 2598 be withdrawn, and that when the Senate resumes consideration of the farm bill on Friday, the pending Smith and Torricelli amendments be laid aside and Senator Wellstone be recognized to offer an amendment regarding EQIP grants; that following debate in relation to the Wellstone amendment the amendment be laid aside, and Senator McCain or his designee be recognized to offer his amendment regarding catfish, and that following the reporting of the clerk, the McCain amendment be laid aside; further, that the pending amendments may be set aside with the concurrence of both managers for the purpose of offering additional amendments.

Mr. HARKIN. Mr. President, I ask unanimous consent the order for the quorum call be dispensed with.

Mr. HARKIN. Well, then, let's see if we both have the same understanding of this. What we would do tomorrow morning is lay aside the pending Smith amendment and the Torricelli second-degree amendment thereto. We would then proceed to debate on the Wellstone amendment. When debate is finished on the Wellstone amendment, we would then go to the McCain amendment as an amendment to the substitute, at which time after the McCain amendment is debated, we would then return to the Smith amendment with the Torricelli second-degree amendment thereto?

Mr. HARKIN. The McCain amendment to the substitute is the pending business.

Mr. HARKIN. Madam President, what is the business before the Senate at this time?

Mr. HARKIN

Mr. HARKIN. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.