Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. I ask for the yeas and nays.

Mr. KENNEDY. Mr. President, in the time that the Senator from Washington has been in the Senate, I have never differed with her except on this one occasion I do. We have 860,000 individuals who come here. They primarily come here from Asia or from South America. We have a diversity program to permit in 42,000 of the 8 million from around the world who apply for this program who otherwise would never have the opportunity to come here. We have increased the high-tech people by three times in this legislation--three times. All we are saying is America: diverse America, melting pot America. If these individuals come here, they have to have a high school diploma, they have to meet the security requirements, and they can't be a burden on the State. That is just one feature of a very important immigration bill, but it has been an aspect and commitment of our Nation--diversity--since the history of this country. Let me point out the opposition: the Chamber of Commerce, National Association of Manufacturers, Business Roundtable, et cetera.

Mr. KENNEDY. I ask unanimous consent that the time be vitiated.

Mr. KENNEDY. Mr. President, I move to reconsider the vote.

Mr. KENNEDY. Mr. President, this creates an entirely new guest worker program without the kind of protections for the workers that are included in the underlying legislation. It is 10 months and then 10 months with no path to be able to go forward. We have a good temporary program that has been built in. It has been modified from 400,000 down to 200,000. But why now invite an entirely new guest worker program without the worker protections? This is going to be another Bracero issue question, and we don't need to repeat that period. I hope it will not be accepted.

Mr. KENNEDY. Mr. President, how much time remains?

Mr. KENNEDY. Mr. President, we have had probably 3 years of hearings in the development of this legislation. As a result of the hearings, we found that pressure exist on the border. We also found out in the course of these hearings that there is a great deal that can be done to make the border secure. But if you think you are going to close the border completely and eliminate the magnet of United States employment, that is failing to understand the immigration issue in terms of the border and what is happening here in the United States and what is happening in Mexico and in Central America. One of the most important aspects of this legislation is trying to get the cooperation of Mexico and the countries in Central America. One of the most important initiatives will subsequently be to try to help Mexico develop so that people want to stay in Mexico and develop and see their own country develop. But as long as we are going to have the economic magnet here, there is going to be the draw. We can extend the fence 500 miles, 700 miles, 1,000 miles, 1,500 miles, but the idea that we are going to close this border and put tens of thousands of border guards down there and not have the pressure to come in here doesn't recognize what the problem is. This legislation attempts to understand the problem. What we try to do is say, Look, we have the magnet of the United States, we have the vacancy in terms of American jobs, we have the pressure of these people--young people, old people, women, whomever it is--in Mexico, Central America, and Asia who want to come here. What we are saying is, come through in the orderly process and procedure. Get your card and you will be able to come to the United States with that card when there is a job not being filled by an American worker. And you are going to have worker protection. So you are not going to decrease wages on American workers, and you will be treated fairly and with dignity. If we think we are going to terminate that and that is going to stop our problem, that fails to understand what the realistic situation is on the border and the pressure that is there in these countries. I hope that the amendment, with all respect to my friend from North Dakota, is rejected. As has been pointed out, this compromise is a compromise of legality and a recognition of the pressures that exist on that border. We believe, if we establish an orderly process and procedure for people to come here with the tamperproof card, and if we have effective implementation and enforcement against employers, that is the best way to assure that we are going to have fairness, both in treatment for these workers and also for American workers. I stand with those who feel that this is not the right amendment. This isn't the right time. This whole construct of the immigration legislation isn't a 2-year, isn't a 3-year, isn't a 4-year, isn't a 5- year--we are trying to establish something that will serve this country and also serve the countries of Mexico and Central America in the future. That is the construct. To try to say we are going to terminate an aspect of this after a few years really is a deathblow to the construct of this legislation. I hope that it will not be accepted. I reserve the remainder of our time.

Mr. KENNEDY. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. KENNEDY

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

Mr. KENNEDY

Mr. KENNEDY. We intend to notify the Senate what these Democratic amendments will be. They will be interspersed as rapidly as we can. We will do that, hopefully, before the end of the afternoon.

Mr. KENNEDY. Mr. President, I believe the matter that is before the Senate now is the title III provisions. Under our agreement, I think I had 5 minutes to speak, am I correct?

Mr. KENNEDY. I thank the Chair. Amendment No. 4177

Mr. KENNEDY. Mr. President, I yield myself 4\1/2\ minutes. Mr. President, as the Senator pointed out, this really represents a very strong, bipartisan effort to make sure we get a key feature of this immigration reform correct. I wish to express my personal appreciation to those who have worked so hard and so well, including Senators Grassley, Kyl, Obama, and Baucus and their staffs, who have devoted an enormous amount of time to this issue. It is incredibly important. We are talking about worksite enforcement, which we all agree is a core goal and challenge. If that doesn't work, this legislation, to a great extent, will be very ineffective. But what we have worked out--the inclusion we have in this amendment--I think effectively guarantees that it will work out. The core goal is to establish the worksite enforcement system as quickly as possible, which will succeed in preventing undocumented immigrants from obtaining employment. I believe everybody agrees that the heart of the system must be the new electronic verification system that allows employers to compare a worker's name and identification data to a central database that confirms or disconfirms the worker's eligibility to work in the United States. Yet the Basic Pilot upon which this electronic system will be based did not work well. It has error rates of 10 to 15 percent. In a national system, that would mean millions of Americans would be told every year they do not have the right to work in this country. The GAO has told us that the error rate could increase as the system is expanded to a national level. So the core challenge is how to establish a universal verification system as quickly as possible, while minimizing the risk that we end up throwing millions of American workers out of work or putting thousands of employers out of business. The stakes are high. While all our other decisions have profound consequences for millions of immigrants, what we do in title III will directly affect also the working conditions for Americans, so it is enormously important to get it correct. I am pleased to say that our negotiations with all of our colleagues here produced an agreement we can be proud of. We agreed to an ambitious schedule for implementation. Every employer in the country will be required to participate in the system beginning 18 months after funding for the system is appropriated. At the same time, we agreed on a number of due process and procedural steps to minimize the risk that U.S. citizens and legal immigrants are wrongly harmed by the system-- problems which workers and employers are equally eager to avoid. Mr. President, we may have differences about this legislation and about different provisions, but I think everybody agrees that if it goes into effect, we want to make sure it is the best possible system with the best possible protections. I think this amendment which has been worked out with the leadership of my colleague and friends, Senators Grassley, Baucus, Kyl, and Obama, is the best we could possibly recommend. We urge the Senate to accept it. I will withhold whatever time I have remaining.

Mr. KENNEDY. All time back.

Mr. KENNEDY. Mr. President, I yield myself 10 minutes.

Mr. KENNEDY. Yes. I call up amendment No. 4106 and ask for its immediate consideration.

Mr. KENNEDY. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.

Mr. KENNEDY. Mr. President, I yield myself 10 minutes. Immigrant workers are among the most vulnerable in our Nation. While performing society's most difficult and dangerous work, they face abuse by employers, the denial of basic rights, and economic exploitation. In negotiating the McCain-Kennedy bill, we took great care to include protections that will halt these alarming trends and ensure fair wages and working conditions for guest workers. We also took great care to protect American workers and ensure that the guest worker program does not diminish American labor standards. However, history shows us that it is not enough to pass good labor laws if we do not also make a strong commitment to enforcing these laws. Beyond anything we have provided in the bill, the most important step we could take to help American workers and immigrant workers alike would be to improve our enforcement of the critical labor protections that have been a part of U.S. law for decades. We have laws on the books that protect the safety of American workers. Yet each year in the United States over 5,700 workers are killed on the job, and 4.3 million others have become ill or injured. I must say that prior to the time we passed the OSHA law, that has more than doubled. We reduced that by more than 50 percent in recent years because of that legislation. That is 16 deaths and 12,000 injuries and illnesses each day, today. We have laws on the books that prohibit child labor. Yet there are about 148,000 illegally employed children in the United States today. We have laws on the books that give workers a voice on the job to protect their fundamental right to organize and join a union. Yet each year in the United States more than 20,000 workers are illegally discriminated against for exercising these rights in the workplace. These appalling statistics persist because our efforts to seek out and punish employers who violate the law are laughably inadequate. We find and address only a minuscule fraction of the number of violations that occur each year. Even when we do try to enforce the law, the penalties for breaking it are so low that employers treat them as a minor cost of doing business. The average fine for a serious OSHA violation last year was $883. The average fine for a child labor violation was $718. And violation of workers' rights to organize are remedied with back pay awards that come years too late. So such minor sanctions provide no incentives for employers to comply with the law. We need to provide real penalties, not slaps on the wrist, for the employers that violate the Fair Labor Standards Act, the Occupational Safety and Health Act, and the National Labor Relations Act. The Kennedy amendment bolsters our enforcement of these important laws. It updates the penalties under the Fair Labor Standards Act by increasing the back pay remedy for willful violations and increasing the maximum penalty for violations of the minimum wage, overtime, and child labor protections. It would also update the OSHA civil penalties which have been unchanged since 1990. It would provide a maximum penalty of $50,000 when a worker's death is caused by willful violations of the law, and make it a felony when an employer kills or injures an employee through such willful violations. But these increased fines and penalties, while important, are not enough. We also need to take stronger steps to ensure that current laws are being enforced and violations are being detected and remedied. Vigilant enforcement is particularly important in occupations with high percentages of immigrants who often see large numbers of violations of health and safety and wage and hour laws. It can be difficult to enforce the law in such occupations where workers often don't know their rights or are afraid to report violations. That is why we need targeted enforcement efforts to ensure that guest workers' rights are protected and our high American labor standards are being maintained for all workers in this country. The Kennedy amendment will serve this important goal by requiring that 25 percent of all fees collected under the guest worker program be dedicated to enhance enforcement of the Fair Labor Standards Act, OSHA, and the labor protections of the immigration bill in industries that have the highest percentage of violations and the highest percentage of guest workers. Another key step in protecting both American and immigrant workers is to end the economic incentives that employers have under the current law to abuse undocumented workers. The Supreme Court's decision in the Hoffman Plastic case was a major setback for American workers. By ruling that undocumented workers are not entitled to back pay when their rights are violated, the Supreme Court left millions of workers without meaningful recourse when they are fired for trying to organize a union. Unfortunately, this terrible decision has been applied to other labor laws as well, making undocumented workers even more vulnerable to exploitation because their employers can violate their rights with relative impunity. This decision also hurts American workers in several ways. It encourages employers to hire undocumented workers by making them less expensive and easier to intimidate. Businesses take advantage of the situation by hiring undocumented workers and cutting legal corners. Under the Hoffman case, unscrupulous employers are rewarded for this unlawful behavior. Congress should not allow employers to use immigration laws as a shield for unlawful and abusive behavior. All workers should be entitled to the protections of our labor laws regardless of their immigration status. Finally, our workplace standards will not be effective until workers have the security, knowledge, and means to enforce them. The best way to provide workers with these resources is to give them the ability to freely and fairly choose a union. The right to organize and join a union is a fundamental right recognized in the United Nations Declaration of Human Rights. Yet the United States violates that fundamental principle every day because our laws don't adequately protect the right to organize. When workers attempt to form a union, employers intimidate them, harass them, and retaliate against them. Employees who stand up for their rights are fired. The Kennedy amendment provides stronger protections that allow workers to organize freely and require employers to negotiate fairly. It allows workers to get court orders to stop employers from firing or threatening union advocates and strengthens the penalties in current law for mistreatment of workers who support a union. It is long past time to give workers these basic protections. Congress passed laws such as the Fair Labor Standards Act, the National Labor Relations Act, and the Occupational Safety and Health Act in order to establish the minimum standards necessary to preserve basic human rights. But we must provide meaningful enforcement if we want these to be meaningful laws. The Kennedy amendment ensures vigilant enforcement of these critical labor protections to preserve the health, the safety, and the well-being of all Americans. I hope it will be included in the underlying legislation. Mr. President, I yield the floor.

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

Mr. KENNEDY. Mr. President, I have charts which are fairly indicative of the points I made earlier. Penalties for violating workers' rights are shamefully low. On the first one, $718 is the average fine for child labor violations, and 148,000 children are being exploited in the labor force. There is very little enforcement in the first place against these violations. And even when there is one, the average fine is $718. When you have a serious OSHA violation, the average fine is $883. If you look at the far side, it is a $1,000 minimum fine for bribery at a sporting event. Here we are exploiting children, here we have the possibility of serious injury to workers, and here we have the minimum fine for bribery at a sporting event being higher. It is illustrative of the inadequacy of current enforcement. More and more immigrant workers are dying on the job. This is a very interesting chart. It shows the total number of immigrant workers who are dying on the job. These are significant numbers. You see they are increasing every year. It is explainable. This illustrates 2002, 2003, and 2004 for Hispanic fatalities and the national fatality rate. We see what happens. Here are the Hispanic fatalities. Obviously, in the workplace the Spanish are being assigned to more dangerous jobs. There is not enforcement to make sure they are being protected on the jobs as they should be. As a result, they are paying with their lives, in many of these instances, and the numbers are continuing to go up. We need strong enforcement. That is what our amendment does. This chart shows that Fair Labor Standards Act enforcement has declined while the workforce has grown. This is the increase in the United States covered by the Fair Labor Standards Act. It has increased. This is from 1975 to 2004--112 percent. The next is the increase in U.S. workers covered by the Fair Labor Standards Act; a 36 percent reduction in compliance actions being completed. We are not getting enforcement and protection. As all of us know, the facts show and the GAO and other studies show when you have compliance and when you have enforcement, the result is saving workers' lives-- Hispanic lives, migrant lives, American workers' lives. We have to have justice in the workplace. We want to ensure that we are going to upgrade as we are moving to a new phase--bringing new people into the workplace. We want to upgrade the penalties to make sure that we are going to have compliance. This is consistent certainly with the other thrust of the legislation. It is important that workers who are going to have protections that we believe are essential to permit them to produce and to meet their responsibilities but to do it in a climate that is as devoid of exploitation and danger as possible. To do that we need compliance in enforcement. That is what this amendment is really about. I suggest the absence a quorum and retain the remainder of my time.

Mr. KENNEDY. Mr. President, do I have any time remaining?

Mr. KENNEDY. Mr. President, I know we had this debate about an hour ago. I ask unanimous consent for 1 minute.

Mr. KENNEDY

Mr. KENNEDY. That would be fine.

Mr. KENNEDY. Mr. President, I thank the Senator from California for her amendment. It does, for the reasons she has outlined and that I will address briefly, seem to be a constructive and positive way to go. It effectively moves us back to what was originally the legislation that Senator McCain and I introduced. I was enthusiastically in support of it because it achieves what we are trying to do in terms of earned legalization. In terms of simplicity and legality for those people who are here, that is the preferable way to go. Since that time, as the Senate has worked its will, the Martinez- Hagel amendment has come in and, as has been outlined, establishes a tier system. It recognizes that those who are here for over 5 years will be able to have the earned legalization which many of us support-- strong bipartisan support. Those who are here for just 2 years will be deported, and those from 2 to 5 will have to return and follow a different pathway in terms of earning citizenship. That is administratively more complicated and difficult and puts additional burdens on Homeland Security. One of the basic concepts behind the legislation was to try to move people out of the shadows. This is going to move us back into creating a situation where a number of people will be back in the shadows. It does move us in a direction that I would not have hoped we would move. But frankly, this is the legislative process. The legislative process has brought us to where we are today. The underlying legislation is a good product and an important product which will mean a significant and important change in the opening of opportunity for people who are here, who want to work hard and pay a fine, pay their back taxes, play by the rules and become a part of the American dream. I am enthusiastic for the underlying legislation which includes the Hagel-Martinez amendment. I will say that the Feinstein amendment is basically, in fact, what Senator McCain and I had originally hoped for. It is difficult for someone like myself to argue against it. It makes sense. But as legislative proceedings go, at least as far as I am concerned, you are sort of stuck with where you are in terms of the process. I thank the Senator from California for again raising an issue which is a matter of enormous importance. And her reasons are excellent, as she outlined in her comments. I am sympathetic to that. If the Senator's amendment is not successful, we still have a very strong bipartisan document which will deserve to move ahead in this process. I retain the remainder of my time.

Mr. KENNEDY. Mr. President, I yield whatever time I have to the Senator from California.