Ted Kennedy

Mr. KENNEDY

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, could the Chair state what the business will be when we come back in the morning, whether it will be the unexpired time on the cloture motion, is that correct?

Mr. KENNEDY. Mr. President, parliamentary inquiry.

Mr. KENNEDY. Would that be a time for Members who have been waiting here for 5 hours this afternoon and denied the right to speak--at that time would they have an opportunity to object to further Senate business until they have had an opportunity to address the Senate? Would that be in order?

Mr. KENNEDY

Mr. KENNEDY. Mr. President, we are in morning business. The amount of time has not been designated, but I yield myself 6 minutes. Then, if there are others from our side who wanted to speak, we would move ahead, if that is agreeable. Mr. MURKOWSKI addressed the Chair.

Mr. KENNEDY. I am glad to yield to the Senator from Alaska.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, the proposals by House Republican leaders to spend a major portion of the projected budget surplus on tax cuts for the wealthiest citizens gives new meaning to the word ``irresponsible.'' Any such cut would rob Social Security recipients of the retirement benefits they have earned and deserve. Yet the House Republicans want to spend this ``surplus'' before it even materializes, in an election eve vote-buying scheme of massive proportions. Every Senator on both sides of the aisle who is serious about preserving Social Security for future generations has a duty to reject these outrageous proposals. Before we spend it, wouldn't it be wise to at least ask where this projected surplus comes from? The answer is clear--and shocking in its meaning. Ninety-eight percent of the ten-year surplus projected by the Congressional Budget Office comes from the Social Security Trust Fund. The issue is not whether we should use the surplus to ``save Social Security,'' the surplus is Social Security. Using those dollars to pay for anything other than retirement benefits for future Social Security recipients would be an act of political grand larceny. The victims would be those hard-working men and women who are counting on Social Security to protect them in their retirement years. The term ``surplus,'' as it is used in the budget debate, means only that the total amount of revenue received by the Federal Government in a particular year exceeds the total amount that the government will spend in that year. In the current fiscal year, for the first time since 1969, the Federal Government will take in more dollars than it spends. But this so-called ``surplus'' does not take into consideration any future financial obligations of the Government, such as the obligation to pay Social Security benefits to retirees in the future. The surplus is not extra money which Congress can spend on any worthy cause. It is money which must be set aside to pay those future obligations. The overall surplus is equal to the surplus in the Social Security Trust Fund minus the deficit in the rest of the government. When Social Security reserves are removed from the calculation, the surpluses over the next seven years evaporate. Budget deficits continue through fiscal year 2001, followed by four years of roughly balanced non-Social Security budgets. Not until 2006 does any meaningful surplus appear without counting Social Security reserves. The Congressional Budget Office has projected a surplus of $1.55 trillion over the next ten years. Of that amount, $1.52 trillion--98%-- is Social Security reserves, which consist of the payroll tax payments made by employees and employers during the next decade and interest earned on Social Security Trust Fund during that period. Every one of those dollars will be needed to honor our commitment to future retirees. Only $31 billion of the ten year projected surplus--an average of $3 billion a year--is not already committed to meeting future Social Security obligations, and that amount could easily disappear with only a slight shift in the economy. A $520 billion surplus is projected over the next five years, and it is composed entirely of Social Security reserves. In fact, if Social Security reserves are not included, there would actually be a deficit of $137 billion during this period. There is no surplus for Congress to spend over the next five years--none at all. Despite these facts, House Republican leaders repeatedly call for using a major portion of this so-called surplus for tax cuts. Originally, they proposed that half the surplus--over $700 billion--be spent on tax cuts. These Republicans had the gall to brag that they would devote the other half to Social Security. Majority Leader Dick Armey boasted that this is ``a big, big step in the direction of saving Social Security.'' Nonsense. Congressman Armey's suggestion is the equivalent of a banker embezzling half the money he was entrusted with, and boasting that he did not steal it all. Now we hear from Speaker Gingrich that House Republicans will only seek a tax cut of $70 to $80 billion this year, but intend to pass a much larger one next spring. He acknowledged that ``virtually all of it'' would be paid for with dollars taken from the surplus. The intent of these Republican schemes is clear--it is to rob Social Security in order to pay for tax cuts going disproportionately to the wealthiest citizens. Whether the Republicans take one giant bite, or several smaller ones, out of the surplus, the result will be the same--a dramatic weakening of Social Security. The entire $1.52 trillion belongs to the Social Security Trust Fund. It is being raised to pay for retirement benefits--and any diversion of any portion of those funds is wrong. Congressman Kasich, the House Budget Chairman, offered an interesting variation on this Republican theme. He has suggested that the interest earned on reserves in the Social Security Trust Fund does not belong to Social Security, and should be used to finance tax cuts. That too is absurd. ``I only stole the interest'' is hardly a legitimate defense for a person charged with embezzlement. The interest earned on the reserves is clearly part of the Social Security Trust Fund, just as interest earned by a private citizen's bank account is part of that account and part of the citizen's income. All of the reports issued by the Social Security actuaries on the state of Social Security finances reflect these interest earnings. Pension funds, bank accounts, and other assets earn interest, and so does the Social Security Trust Fund. Using the interest earned on the Social Security Trust Funds to finance tax cuts would consume hundreds of billions of dollars that otherwise will be used to help restore the financial integrity of Social Security over the long term. If the interest earnings are removed from the trust fund, Social Security's financial problems would become much greater. If Social Security reserves are not available for the Trust Fund in the future because they have been used to pay for tax cuts, then it is clear that benefit cuts or large payroll tax increases will be inevitable for Social Security. What we call the ``surplus'' is actually dollars raised expressly for the purpose of paying Social Security benefits to the men and women of the baby boom generation when they retire. Every dollar which we divert today to finance irresponsible tax cut schemes will only expand the gap between the future retirement benefits owed by Social Security and the resources available to meet those obligations. Social Security is fundamentally sound. Unless Congress makes the current problems worse, harsh benefit cuts will not be necessary to insure its long-term solvency. It is essential that the current benefit structure be preserved. For two-thirds of our senior citizens, Social Security benefits represent more than half of their annual income. Social Security has dramatically reduced the poverty rate among older Americans. We cannot allow that guaranteed benefit to be undermined. No action by Congress would threaten those benefits more than recklessly spending a large portion of the Social Security Trust Fund for irresponsible tax cuts. The surplus belongs to Social Security--all $1.5 trillion of it. We are not free to spend it for other purposes. The Republican assault on Social Security is unconscionable. We must preserve it for future generations, not spend it recklessly on tax cuts now. Mrs. FEINSTEIN addressed the Chair.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I ask the Chair to notify me when 4\1/2\ minutes have passed. Mr. President, I rise in strong support of the National Endowment for the Arts and full funding for the agency as provided in the Appropriations Committee bill. I commend the committee for its continuing strong support for this important agency. I commend Senator Gorton, Senator Byrd, and many other members of the committee who have demonstrated impressive leadership on this issue, and essential funds are being provided to support Endowment programs in vital areas such as music, dance, visual arts, theater, opera and arts education. For nearly a decade, Congress has debated the proper role of the Federal Government on the arts. Each year, a small group of Endowment bashers have led a charge against the agency--and each year the charge has effectively been turned back. The funds provided in the current bill are the same amount approved by the Senate last year after lengthy debate and deliberation. The bill also includes the priorities and limitations on these funds from last year to ensure the effect of distribution of funds to neighborhoods and communities across the country. The arts have a central and indispensable role in the life of America. The Arts Endowment contributes immensely to that life. It encourages the growth and development of the arts in communities throughout the nation, giving new emphasis and vitality to American creativity and scholarship and to the cultural achievements that are among America's greatest strengths. Compelling research underscores the role of the arts in student performance in other academic subjects as well. A recent study by the College Board demonstrated a direct correlation between study of the arts and achievement on SAT scores. Students who had four or more years of arts courses scored 59 points higher on the verbal part of the SAT test and 44 points higher on the math part--compared to students with no equivalent courses in the arts. If you were to, on the Senate floor, give us one indicator that can make a difference in enhancing the academic achievement and accomplishment of the young people in this country, the arts and the study of the arts has a record which is really second to none, let alone the value that it has in terms of enriching our culture and our history and the history of this Nation. The arts are also an important part of the economic base of communities across the country. A study by the New England Foundation for the Arts emphasizes the economic impact. In 1995, cultural organizations in the region had a total economic impact of nearly $4 billion. During that time, over 99,000,000 people attended events and performances sponsored by cultural organizations. That number is nearly 8 times the entire population of New England. Clearly, programs in theater, music and art are significant community assets for both residents and tourists. That benefit is one of the reasons why the United States Conference of Mayors strongly supports adequate funding for the arts and humanities. At their meeting last June in Reno, NV, the Conference adopted a resolution reaffirming its support of the Arts and Humanities Endowments and calling upon Congress to fund the agencies at the level of the President's fiscal year 1999 request. Although the bill we are debating today does not reach that amount, the level of funding is reasonable in light of the many other pressures in the budget, and I hope we can join in a bipartisan effort to enact it. Bill Ivey, the new chairman of the Arts Endowment has pledged to comply fully with the new regulations on oversight and outreach established by Congress last year. In an effort to reach out to new communities, the Endowment has developed a new pilot project, ArtsREACH, to help states that have received five or fewer grants during the previous two years. This new effort is a productive way to bring the Endowment's programs to new audiences in small neighborhoods across the country, and I commend Chairman Ivey for his leadership. Mr. President, I remember the wonderful lines of President Kennedy when he talked about the age of Phidias also being the age of Pericles, and the age of de Medici is also the age of Leonardo da Vinci, and the age of Elizabeth is the age of Shakespeare. The point is that at the time when we have had the greatest intellectual achievement and the most creative aspects of civilization, going back to the time of the Greek civilization, we have also had ennobling periods in terms of the values of our own society and our own history and our own forms of government. Mr. President, this is a modest proposal. It used to be that we allocated the equivalent of two stamps for every American, in terms of the arts. Now the reduction is down to one stamp. In this great Nation of ours, it seems to me that we can allocate those resources in ways that will help and assist, preserve, support, and further the arts in our society. I hope the amendment of the Senator is not accepted.

Mr. KENNEDY

Mr. KENNEDY. I yield 30 more seconds.

Mr. KENNEDY. I yield 1 minute to the Senator from Iowa.

Mr. KENNEDY. I yield myself 15 more minutes.

Mr. KENNEDY. Mr. President, we are reaching the last few weeks of this session of the Congress, and I think it is appropriate to give some consideration to the positions of the Republican leadership on the many issues that affect working families, because we will consider one of these issues later in the afternoon and another tomorrow when the Senate is going to be debating and also voting on the increase in the minimum wage. I think it is appropriate that we look over what has been the Republican leadership position on issue after issue that affects working families in this country over the period of these last few years. There you will find a wholesale assault on the interests and the rights and the economic conditions and wages of working Americans. I can remember 3 and one-half years ago, just after the Republicans gained leadership positions in the Senate, one of the first proposals offered was the repeal of the Davis-Bacon Act. I can remember being in this Chamber and asking my colleagues what is it about the Davis-Bacon Act that they object to. Well, they talked about the inflation it adds to construction projects. The average income for a construction worker in the United States of America is just over $30,500. What is it that is so outrageous for a worker involved in construction--construction, the second most dangerous industry--to make $30,500? Why is that such a dramatic concern to the leadership of the Republican Party? We find it time in and time out--let us eliminate Davis-Bacon to make sure that we do not give government contractors the opportunity to inflate wages of workers in this country. Nonetheless, we took a number of days on that particular issue. I was wondering why it was, with all the problems we were facing at that particular time, our Republican friends wanted to take away some very important income for working families. And then we had introduced an increase in the minimum wage--at that time it was $4.35 an hour--for the working poor--men and women who work 40 hours a week, 52 weeks of the year, who want to be able to bring up their children with some kind of respect, but who are living in poverty. Most Americans believe that those who want to work and can work, who believe in work, who are prepared to show up for work and play by the rules, ought to be able to have a livable wage. We will have an opportunity to address that issue again tomorrow. We have the most extraordinary prosperity in the history of the nation, with the lowest unemployment and the lowest inflation. But still the Republicans say no to that, no to the wages of working families who are involved in construction, no 2 years ago to any increase in the minimum wage, and then finally, finally, finally, finally, they acceded to a modest increase in the minimum wage. And now we have the issue before us again. We know that the purchasing power of working families has been at its lowest, has deteriorated the greatest, and the highest income Americans have seen their incomes increase. In the immediate postwar period, all Americans went up together. The rising tide raised all the boats--low income and upper income Americans increased at about the same rate. But now, according to the Republican leadership, they want to see a decline in the wages of working families by repealing Davis-Bacon. They don't want to see any increase for working families in a minimum wage. And then I remember, as we went on into last session, the assault on the earned-income tax credit. Increasing the minimum wage helps working people, whatever the size of their family. But the earned income tax credit helps low wage workers if they have one or more children. The more children you have, the greater the benefit to you from the earned- income tax credit. But we had the Republican leadership not only condemning the income of construction workers under the Davis-Bacon Act, but saying no to any increase in the minimum wage. And for those Americans with large families who earn less than $31,000, we saw the wholesale Republican assault on those families by cutting the earned-income tax credit. I believe their particular proposal was $9 billion. Now, we went on for 6 or 8 months, and I asked, what is this all about? Why are we having this wholesale assault on working families at the same time we saw the assault on Medicare and Social Security, to take over $256 billion and give tax breaks to the wealthiest individuals. Well, Mr. President, this assault that we had from the Republican leadership in the last session of Congress has continued, and it continues today. We have seen serious efforts to undermine the occupational health and safety legislation. Who does that protect? Legislation that had bipartisan support in 1972 that has seen the total number of deaths in the United States from on-the-job work cut in half. But we see our Republican friends saying we want to cut back on OSHA protections. We say, all right, maybe it ought to be streamlined; maybe it ought to be more effective. What can we do to provide additional protection for workers? The GOP says, oh, no, we want more protection for the companies, and less protection for the workers. The Republicans want to permit companies to hire their own inspectors, and if their own inspectors say they pass muster, they want them to be immune from any kind of enforcement by OSHA. The Republican agenda includes undermining their income, undermining the safety of working families--this is their agenda. We say maybe it really is not so. Let's give the Republicans an opportunity to prove that they really do care about working families. Let's try to see what we can do with family and medical leave. We are the only industrial nation that does not provide paid family and medical leave that pays the workers. We provided it for companies with over 50 employees, and it has been a resounding success. It has been a resounding success, and enormously important, as we have seen from the studies that show the importance of parents being with infants during their early days. We heard the debate. It went on for weeks with the opposition of Republicans on the Family and Medical Leave Act. Now it is in effect. It is broadly accepted, welcomed, and the people who benefited from it have been working families. Efforts were brought up not long ago, a little over a year ago: Let's try to extend it from companies that have 50 or more workers to those with over 25 and pick up another 13 million working families. We cover about half of the workforce now with the 50 or more, but let's bring it down so we pick up another 13 million Americans. If it works for one, let's try it for the other. You would think the world would collapse when we listened to the Republican leadership saying ``no way are we going to consider extension of the Family and Medical Leave. No way are we going to extend that concept.'' We hear a great deal on the floor of the U.S. Senate about families and family values. One of the best ways of advancing family values is to let working people have family income. Let them spend some time with their families when they are working. Let them be safe so they can go home to their families, and not lose their lives in construction or be maimed in construction. That is a family value. Now we had the wonderful amendment of Senator Murray of the State of Washington. She said, ``Let's just give parents 24 hours--24 hours so that parent might be able to go to a parent meeting, maybe be able to go to an academic program in which a child is involved. Let us give 24 hours a year of unpaid leave so parents can see their child receive an award at school.'' ``No, no, no,'' said our Republican friends, ``we can't possibly do that. We can't possibly do that. That will interrupt the workplace. That will disrupt the workforce. We will give you something else.'' They came back with a wonderful proposal--what they call ``comp time.'' ``No,'' to Senator Murray, the Senator from Washington, who was trying to do something for families. They come back with what they call comp time. They use all the appealing rhetoric. They claim they will give people the time they need to take off to attend to family needs. But, you know, Mr. President, we went through that debate. One thing that those proponents would never be able to answer is that little part of the legislation that I read time in and time out that said it will be up to the employer when they will be able to get the comp time. In the meantime, we are going to abolish the 40-hour week and we are not going to pay overtime. A wonderful deal for workers. A wonderful deal for workers. Who do you think supported that? It is always interesting to me when we have these wonderful statements of people who propose things, to then look at who benefits and who loses. Who do you think supported the Republican proposal on comp time? The Chamber of Commerce, all the business interests. Who opposed it? Working families, women's organizations and children's groups, because they saw it was phony and they saw it was fraudulent. So on it goes. Here we have the assault on the economic interests of working families, the assault on OSHA, the assault on our efforts to extend Family and Medical Leave, and many more. Another example is campaign finance reform. We talked about it. It has been effectively defeated in the U.S. Senate because of Republican leadership. Eight courageous Republicans, eight of them, were willing to stand up and try to advance campaign finance reform. The first amendment that our Republican friends offered, before they sunk campaign finance reform, was what they call the paycheck protection provision. That sounds like a good one. On whom do you think it was focused? On whom do you think that paycheck protection was focused? Can you guess? Working families. Working families, to deny them the opportunity to participate effectively in our political process. That is just a continuation of the assault on working families. It is meant to deny them the most fundamental and basic opportunity--to participate in the election process. The No. 1 amendment was to deny people their rights. Our agenda was different. Our agenda seeks to expand safety and health protection in the workplace. We want to expand family and medical leave, invest in education, strengthen Medicare for our elderly, try to do something for Social Security--that is our agenda. I know it. I yield to no one in sponsoring those proposals because they make an important difference to children, to workers and to our parents. I also support other proposals to make sure our streets are safe and our air water is clean. But we spent weeks on their so-called Paycheck Protection Act, not to change the system to try to deal with the abuses--but to deny working families the right to participate in the political process. It was not much later that the GOP brought up the TEAM Act. That bill goes under the guise of giving workers a chance to work together in order to get a safer workplace and better productivity. All of those goals can be advanced now, under current law. I do not think any of those who supported the TEAM Act can compare the kind of increased productivity we have seen with General Electric, for example, in modernizing their jet engines, that has been done with workers and engineers working together. I can take you up to the plant in Lynn, Massachusetts. Every time I tour that plant, I see the incredible increase in productivity, because workers are working there alongside engineers to increase productivity and increase safety. But the TEAM Act does something else. What was that? That bill would have permitted any CEO to choose employees' representatives, so that the CEO could bargain with the named employees about any of the issues about which other workers might be concerned. How do we like that? Generally speaking, we would think that the workers themselves ought to be able to make a decision among themselves who ought to represent the group. That is a basic, fundamentally democratic concept. But no, no, not according to the Republican leadership. Under the TEAM Act, the employee names the representatives, and if the employer doesn't like the person, he can fire the person. The employer sets the agenda and the schedule. The employer sets what will be on the schedule. The employer can change the schedule any time he or she wants to do it. Mr. President, that is under the guise of trying to change and be more productive. It basically would have undermined the opportunity for worker expression that has worked effectively over some 60 years of collective bargaining. So, Mr. President, now we are in the final days of this session, and suddenly we come up here with other legislation which is focused on undermining the opportunity for workers to organize. Surprise, surprise, surprise. Absolutely no surprise. Absolutely no surprise. There has been a continuous effort over the last several years to undermine working families' interests in this country. It is as plain and simple as that. The Republicans have tried all different ways of doing it. They tried to undermine them economically. They tried to undermine their health and their safety in their OSHA recommendations. They tried to undermine their ability to participate in elections with their paycheck protection, and here they are trying to undermine their basic and fundamental opportunity to organize. They have come in the last few days to try to overturn a unanimous Supreme Court decision--unanimous. It wasn't a decision that was 5-4, it was unanimous. Why? Because Republican appointees to the Supreme Court--conservative Republican appointees to the Supreme Court-- understand very clearly what this kind of antisalting legislation will mean, and that is, basically, it will undermine one of the most basic and fundamental tenets of American and industrial democracy, and that is the ability to have collective bargaining and to have opportunities for workers to make a judgment either to choose a union or to reject it. That is where we are. We will have that particular vote this evening, and then we will go to the minimum wage issue tomorrow. We will have an opportunity to do that, Mr. President. I won't even bother taking the time, because I want to address more specifically the legislation that is before us, but I just mention that under the Republican House leadership, they effectively eliminated every summer job for kids in this country--zeroed out the summer jobs program. Zero funding. It isn't just the workers, it is the teenagers in urban and rural areas. I hope we will not hear tomorrow during the debate on the minimum wage, ``Well, this is an entry-level job; we want to give teenagers an opportunity to work, and if we have an increase in the minimum wage, we are going to deny all those teenagers an opportunity to work.'' It won't stand up. We will give them the reports, show them the charts and the various economic analyses that show their argument is just baloney. How are they going to explain that they zeroed out every single cent for summer jobs for teenagers in the House of Representatives? Zero. They say they care about workers? They claim they care about teenagers? The summer jobs program gives them an opportunity to have meaningful work, and they zeroed it out. Mr. President, this was just a very brief comment about where we find ourselves, about who is really interested in working families, and what the Republican leadership has been about over the past three and a half years. Mr. President, how much time do I have remaining?

Mr. KENNEDY. OK. I will yield myself 25 minutes.

Mr. KENNEDY. I understand we have a time allocation and those who are opposed to the Hutchinson proposal now have, as I understand it, about 50 minutes. Am I correct?

Mr. KENNEDY. Mr. President, I oppose the so-called Truth in Employment Act, and I urge my colleagues to oppose it, too. This bill is the latest in a long series of Republican antilabor, antiunion, antiworker initiatives. They have soothing titles and harsh provisions. The GOP's Family Friendly Workplace Act would abolish the 40-hour week. The GOP's Paycheck Protection Act would lock American workers out of election campaigns. The GOP TEAM Act would bring back company-dominated sham unions. Like those schemes, the GOP Truth in Employment Act has an appealing title and appalling substance. The bill's sponsors claim that it is designed to outlaw salting, a decades-old practice of people seeking a job at a nonunion shop with the intention of persuading coworkers to join the union. Salting was unanimously upheld by the Supreme Court in the 1995 Town & Country decision. But this bill does much more than simply reverse that decision. It undermines the rights of workers to organize to improve their jobs and also infringes on a wide array of other legitimate activities that are important to all Americans. These activities include efforts to improve the status of women and minorities in employment, strengthen safety in the workplace, and many, many more. The bill aims at labor unions, but it also hits many other important rights. This bill allows employers to deny jobs to people if they have ``the primary purpose of furthering another employment or agency status.'' Those are the words from the legislation. The bill invites employers to pry into their employees' activities outside the workplace to discover the workers' ``primary purpose.'' It encourages firms to ask job applicants whether they are union members or civil rights activists and refuse to hire them if they answer yes. This blunderbuss provision institutionalizes the blacklist. The bill is blatantly antiunion, and its supporters include the National Right to Work Committee and many antiunion employer associations. But the bill goes well beyond discrimination against union members. It permits many other kinds of flagrant discrimination. By permitting employers to deny jobs to workers who have ``the primary purpose of furthering another employment or agency status,'' the bill also allows firms to fire or refuse to hire a person who seeks to advance the goals of another employer. A company can fire a worker who is also employed by a labor union. The bill also lets an employer refuse to hire someone based on the fear that she might band together with coworkers to push for an on-the- job child care center. The employer can argue the applicant was trying to advance the goal of women's groups to which she belonged. The bill also allows a firm to fire African-American employees who seek to reduce race discrimination in the workplace. The bill lets an employer fire workers who seek to change company policy and allow time off for religious holidays, for family and medical leave, or other worthwhile purposes. This legislation legitimizes discrimination of the most offensive type. It encourages companies not to hire women. It invites discrimination against anyone else the employer believes might push an agenda in the workplace the employer doesn't like. It encourages employers to probe into employees' private beliefs and activities. Freedom of expression and association are guaranteed in the first amendment. For over 200 years, this country has protected individual liberties. Those freedoms are essential to our national character, but this bill clearly undermines their beliefs. The bill's supporters claim they want only to outlaw deceptive practices. They contend that employers are victimized by paid union organizers who accept a job with no intention of performing the work. Instead, they claim, these employees disrupt the job, harass coworkers, and file repeated frivolous complaints with governmental agencies. Innocent employers are forced to waste time and effort defending themselves against baseless charges. Section 3 of the bill says its purpose is ``to alleviate pressure on employers to hire individuals who seek or gain employment in order to disrupt the workplace of the employer or otherwise inflict economic harm designed to put the employer out of business.'' Employers are not powerless under current law in the face of abusive practices. To the contrary--employers have many ways to ensure an efficient and productive workplace. First and foremost, a business can refuse to hire someone who is not qualified for the job. If an applicant lacks the experience or the skills required, the employer can simply say no. Union membership does not automatically entitle someone to be hired, nor is it discrimination not to hire a union organizer who cannot perform the duties of the job. The employer has substantial control. The company can also protect its legitimate business interests by setting a policy barring workers from outside employment. The firm can require employees to forego moonlighting of all kinds, from driving a taxi, to telemarketing from home, to working weekends at the corner store. The Sixth Circuit Court of Appeals ruled last year that such a policy can be applied against paid union organizers so long as it is applied neutrally to all other types of employment. This is a sensible rule. It recognizes employers' legitimate interests in workers who are focused on the job. We understand that, Mr. President. If the company says, ``No, no moonlighting. The workers in our particular shop can only work on one job. We want that for business reasons, because we might need to have the workers work a second shift or a third shift and, therefore, we don't want you working in some other capacity.'' They can do that and accomplish the result they claim is their intent. That is the Sixth Circuit's decision in the Architectural Glass decision in 1997. It says that they can effectively ban all kinds of moonlighting if they have a company-wide policy. So people cannot participate in other kinds of employment. If they are so concerned about that, they can do that. They can do that now. That is a way for them to try and deal with this issue if they are concerned about it. Employers can also discipline or discharge employees who neglect their job duties. Workers who leave their stations or simply do not complete the work required of them can be disciplined. In April 1997, the Fourth Circuit Court of Appeals upheld an employer's right to discharge workers who failed to carry out their duties. In the Hess Mechanical case, the workers neglected their duties and tried to persuade their coworkers to join the union. The court held that the employer was well within his right to fire the workers for poor performance. We understand that, Mr. President. If they hire someone who isn't interested in working, will not work, or can't do the work they can fire the workers who neglect their job duties. If they are not going to do the work for which they were hired, and if they are not qualified for the job, they don't need to be hired. If they are qualified for the job, they are hired, they work. If they do not work, and they are busy in other activities, they can be fired. That is the law of the land today--today. Union membership does not give workers the right not to perform the job. A company can suspend workers who fail to perform adequately. Their pay can be docked. Disciplinary letters can be placed in their files. In extreme cases, they can be fired. Employers can use all of these items, and more, to get the job done. They are far from powerless to address the types of abuses cited by the bill's supporters. Employers are also free to discipline workers who disrupt the job. Harassing coworkers or customers or blocking entrances, intruding in other work areas, all of these acts can constitute grounds for discipline. Once again, employers have many ways to maintain quality, efficiency, and productivity without undermining the employee's legitimate rights. If the misconduct is extreme, employers can call the police. Violence, threats, and intimidation are criminal offenses. Damaging or destroying company property is a crime. No employer needs to sit idly by if employees commit such gross misconduct. Criminal charges can be filed. The offender can be removed from the worksite. These sanctions are in addition to all the other disciplinary mechanisms available to the employer. Once again, union membership confers no immunity. This bill's supporters contend that union members inherently suffer from ``divided loyalties.'' They claim that union members simply cannot be truly loyal to the employer, cannot give the employer the genuine allegiance required for an effective and productive workplace. But that extreme antiworker, antiunion view was rejected over 60 years ago when Congress passed the National Labor Relations Act. The so-called divided loyalty antiunion claim is phony. It was used by countless harsh employers to deny the fundamental rights of workers. And Congress put a stop to it in the 1930s. Mr. President, I ask unanimous consent to have printed in the Record various letters that I have from a number of companies.

Mr. KENNEDY. First of all, I will include in the Record the scores of letters from small businessmen and women across the country that reject the Senator's proposition and hope that this legislation will not be included. Second, Mr. President, any of the circumstances that the Senator has outlined here can be prosecuted under law at the present time. The idea of conjuring up all of these horror stories and then saying that is what happens in the workplace as a matter of course is fundamentally wrong. That is not the case. If you have disruptions, there are perfectly adequate ways of addressing them. Finally, Mr. President, the Supreme Court has upheld the concept that one can be interested in a good job with good working conditions, believe in a union, and also be interested in furthering the interests of the company. That is what this proposal would overturn. Mr. President, I think all of our time has been used up. I yield 36 seconds.

Mr. KENNEDY. Mr. President, I ask unanimous consent for 2 more minutes, and yield time to the Senator from Arkansas.

Mr. KENNEDY

Mr. KENNEDY. Who is going to make the decision?

Mr. KENNEDY. Mr. President, this issue was considered by the Supreme Court of the United States with a number of Justices that were nominated by Republican Presidents, and it was decided 9 to 0--not 7-2, not 8-1, 9 to 0--to sustain the arguments that we have presented here this afternoon. The Senator wants to overturn that decision here this afternoon, and I hope that we will not do so.

Mr. KENNEDY. Mr. President, I understand that I have 32 seconds remaining?

Mr. KENNEDY. Mr. President, we hope that this motion for cloture will not be passed. This is a very fundamental issue; that is, whether we are going to permit employers to get into the minds of potential employees who are qualified to do the job. If applicants are not qualified to do the job, they are not hired. It is not necessary to hire them. This legislation permits any employer to say to any worker who comes into the shop, who is interested in trying to describe the benefits of a union, whether it be higher wages or child care facilities--to be able to say, ``No, we are not going to hire you.'' You know what is going to happen then. It is a decision that will be made by the employer. That decision then goes to the NLRB. Three years go by, and then the case comes to trial. What was in the mind of that particular employee? There is not any evidence of disruptive activities. The law gives employers many ways to police those. The fact of the matter is, the workers are trying to convince other workers to join the union, and not be disruptive--to demonstrate that there is a better opportunity for them by working through the company rather than being disruptive. That is why we have scores of letters to indicate that this is something that is constructive and productive. This involves a very basic and fundamental issue, and that is whether, in our country, which has benefited so much from the development of collective bargaining, we are going to deny workers the chance to be able to gather together to represent their interests to improve the lives of their families. Mr. President, I oppose this legislation and I urge my colleagues to oppose cloture on this motion. Mr. HUTCHINSON addressed the Chair.

Mr. KENNEDY. Will the Senator yield on my time? Who is going to make that decision? The employer is going to make that decision.

Mr. KENNEDY. Mr. President, I yield myself 4 minutes. First, let's remind ourselves of what this legislation is all about. Its purpose is to say to American workers who are qualified for a job that they will be denied employment if they have an intent to try to organize co-workers in nonworking areas and during nonworking hours. Very clearly, you can't have it both ways. You can't say we are really not trying to overturn the Town and Country case. All you have to do is look at what the testimony was before our committee. Every single person who supports this bill wants to reverse that case. Second is the idea that these workers are going in to destroy the company. What good does it do to organize if they are there to destroy it? That makes no sense. The claim makes no sense. Mr. President, it is very clear what the court holdings are. First of all, if a company doesn't want to hire individuals who are paid by a union to organize the workforce, which has been a protected right for over 60 years, all the company has to do is set a blanket rule barring all other employment. That solves the problem--do it for those who are paid by the union, and for those who are going to be moonlighting. That solves the problem. We don't need legislation, Mr. President--they can do that today. Mr. President, the court decisions also make plain that you can fire any employee who neglects their duties. If workers are disruptive on the jobsite, current law allows them to be fired. Supporters claim that these workers won't do their jobs, but instead will file phony charges with government agencies. But the law allows companies to recover attorney's fees if an unjustified charge is pursued. Mr. President, we have to look at what is the issue. The issue is fundamental. It is whether we in this country are going to permit workers who have the ability to do the job, and who are performing their job--whether we are going to muzzle them, to blacklist them and say under no circumstances can they go out there and try to persuade workers to join a union. If the company finds out that they are going to be organizing a union, they can go ahead and fire them. That is what this language says--go out there and fire them right away. Mr. President, this applies not just to those individuals who hold an employment status with a union, but those who hold an ``agency status.'' What in the world does that mean? I will tell you what it means. That means, for example, of the 100 top CEOs in the restaurant industry, there isn't a single woman--not one, not a single woman. Do you understand that--in the restaurant industry, of the top 100 CEOs, none is a woman? So workers go in and say, ``We want to break the glass ceiling in the restaurant industry.'' Under this bill, the employer can say ``Oh, no. Oh, no. You have another thought in mind. You may need this job. You may want this job. You may do it very well. But if you intend to try to do something about equal pay for women, try to do something about a child care program, try to do something to break the glass ceiling, oh, no. Oh, no.'' These workers can be fired by the employer as well. This is a continuation of the effort that we have seen in the last 3 years to attack working families' income, and the rights of working families to represent themselves and try to persuade individuals to be part of their union. If they don't choose to be, so be it. If they do choose to be, so be it as well. But you are denying them that opportunity to choose. Mr. President, we have to ask ourselves now on a Monday night why we are debating this particular issue when we have a Patients' Bill of Rights ready to go. We could be debating those issues which are of such basic, fundamental importance and significance to families in this country. I withhold the rest of my time. Mr. HUTCHINSON addressed the Chair.

Mr. KENNEDY. Mr. President, as I understand it, we have 7 minutes.

Mr. KENNEDY. I yield my colleague 7 minutes.