Carl Levin

Mr. LEVIN

Mr. LEVIN. I am not sure if that is what the Senator was referring to.

Mr. LEVIN. Again, if the Senator will yield, I think actually in the committee we were unable to do what the Senator from Vermont had actually urged us to do and which I totally agree with. I thank him for his comments, which I share. I reach a different conclusion on how I will vote on the whole bill because of the other provisions in it, but I happen to agree with him in terms of his analysis on the Endangered Species Act and on the Marine Mammal Protection Act and the damage that I believe we have needlessly done to those statutes when we could have done some things which would have protected both the environment and the training of our forces. But in any event, I think that probably is what the Senator from Vermont is referring to, although I am not sure.

Mr. LEVIN. If the Senator will yield, Senator Akaka has been here as well. Perhaps after the Senator from Colorado, then the Senator from Hawaii would be recognized for 15 minutes.

Mr. LEVIN. If we could add that.

Mr. LEVIN. Before Senator Collins is recognized, I thank Senator Akaka for his statement and, more importantly, for his service on the committee as ranking member of the Readiness and Management Support Subcommittee. That subcommittee has some of the most difficult issues which we have had to deal with this year; a number dealt with in ways I did not particularly agree with, either. As the Senator from Hawaii indicated, he had concern on a number of them, as well. Without his service on that subcommittee, we would have had many more problems than we ended up having. We are very appreciative and grateful for the service he provided.

Mr. LEVIN. Mr. President, I wonder if Senator Byrd will yield for just one moment.

Mr. LEVIN. Mr. President, I thank Senator Collins. In her usual modest way, she has given much too much credit to others for something on which she deserves the lion's share of the credit, which is an outcome which is not what either she or I would have preferred but is far closer to that outcome than would have been the case but for the persistence and--I will add the word here--courage of one of our colleagues; that is, Senator Susan Collins of Maine. The rights are protected here that are essential to employees that will lead to greater collaboration between employees and the Defense Department because of her tenacity. I salute her for it and commend her for it. It was a pleasure to work with her, on a bipartisan basis, in the Governmental Affairs Committee on the bill to which she has referred. Her outline of what was accomplished is indeed an accurate outline. I will have more to say about that later. But in the meantime, I express my gratitude to her. I think all of us, those of us who were even unaware of the outcome in any detail, will someday understand the contribution Senator Collins has made to the personnel relations in this Government, particularly in the Defense Department.

Mr. LEVIN. Mr. President, I thank Senator Sessions for his service on our committee. He is one of the members of our committee who works extremely hard. I have traveled with him. I did not travel with him the last time he made reference to, but I know how committed he is to the men and women in our service. That is shown every day here, but it was also shown to me very dramatically on the trip we were able to take together, and we thank him. I know, more importantly, the men and women in the Armed Forces thank him for that commitment. The Senator from New Jersey is in the Chamber. I am wondering if he might like to go next. Approximately how long does he plan on speaking?

Mr. LEVIN. If that would be all right with the chairman, I understand Senator Dayton is on his way and he would also like 10 or 15 minutes. Then I would try to make my remarks with an additional 10 minutes.

Mr. LEVIN. Mr. President, I wonder if we could establish order for Senators to speak.

Mr. LEVIN. We have been going back and forth. Senator Reid is ready to proceed for a couple of minutes. I wonder whether Senator Dole might allow him, for 2 minutes, given his responsibilities, to go first. Then we would go to Senator Dole, then back to Senator Dayton. Would that be all right with all the Senators?

Mr. LEVIN. His influence continues. He is now my chief of staff on my personal staff. He takes, of course, a major interest in this area, as he always has. I am sure Rick and Peter and all the others would say having David on my personal staff is a big plus.

Mr. LEVIN. Mr. President, if I could have 30 seconds before we file that. Let me thank Senator Lautenberg for his comments and assure him one of the reasons this conference lasted I think longer than any conference in history, 147 days, was because of those two environmental provisions which, until the end, many of us fought very hard against. The House prevailed. There would not have been a conference report, basically, if we had just refused to give in on this. Ultimately we did not have the votes on this side to carry on in that particular course of action. But I assure the Senator from New Jersey I, as one Senator, agreed with his comments. The provisions that were in the House bill, however, ultimately prevailed. That is what happens with some of these conferences. We basically win some and lose some, and as far as I am concerned we lost on this one, and so did the world.

Mr. LEVIN. The chairman is correct on that. I concur with our chairman. This problem is not the one we have run into recently as much as it is a problem of a very great difference between the Senate provision, which the Senator from New Jersey helped to author, and that of the House. His amendment was a very important amendment and put us on the right track. But we ran dead on to the House provisions. In this case it was the House provisions versus the Senate provisions, rather than additional provisions in conference which were the problem.

Mr. LEVIN. Mr. President, if I could ask Senator Dole to yield for just 1 additional minute, I want to thank the Senator from Nevada for his leadership in this area, and for his kind remarks. But let it be very clear. The Senator from Nevada has led the fight on this concurrent receipt issue. Two-hundred and twenty-five thousand retired disabled veterans are going to now be able to receive their disability benefit as well as their retirement compensation because of his leadership. There are others, obviously, who participated. There always are. The Senator from Nevada is very generous in sharing that credit. Surely our chairman, Senator Warner, deserves a great deal of credit, as others here deserve credit, along with Senator Reid. I know Senator Warner will agree with me. As he just pointed out, Senator Reid has truly been a leader in this effort. It would not have happened without his leadership. There are 225,000 veterans and their families out there tonight who will receive this benefit which they have earned and deserve who otherwise would not have received it. I am sure the President will sign this bill, even though at one time it was suggested that the Secretary of Defense would recommend a veto. I can't believe that will now, in fact, happen. I thank the Senator for his leadership.

Mr. LEVIN. I thank the chairman. Finally, I am pleased that the conference report includes a Senate provision authorizing the expansion of the Cooperative Threat Reduction program of the Department of Defense and the nonproliferation programs at the Department of Energy outside the Former Soviet Union. These programs have proven to be important tools in helping reduce proliferation risk from nuclear, chemical and biological materials of the Former Soviet Union. This conference agreement also provides the President with the authority he requested to continue destruction of chemical weapons in Russia, and fully funds the CTR programs. As we have all come to appreciate, however, the risk that nuclear, chemical and biological materials and knowledge will proliferate is not limited to Russia and the other States of the former Soviet Union. For the first time, using the authorities provided in this agreement, the President will be able to use CTR funds, and funds from the Department of Energy, DOE, Materials Protection and Control program, to meet emerging threats in other areas of the world. I had previously expressed my gratitude to Senator Collins for her extraordinary leadership in this effort. Her assessment on the floor is one I join. The House bill contained a provision, based on an administration proposal, that would fundamentally alter the Federal Civil Service System by authorizing the Secretary of Defense to waive certain provisions of law governing employee performance, pay and allowances, labor relations, hiring and firing, training, pay administration, oversight and appeals. The House provision included few legislated procedures and processes for the new civilian personnel system, other than the requirement that the new system be ``flexible'' and ``contemporary''. The Federal Civil Service System was established more than a century ago to replace a patronage system that was characterized by favoritism, and abuse. While reform and streamlining of that system is a reasonable objective, it is equally important that we do not allow those abuses to resurface. The House bill would not only have provided the greatest shift of power to the executive branch in memory, it would also have put us at risk to some of the abuses of the past. Senator Collins and I worked together closely to fashion a bipartisan bill in the Governmental Affairs Committee that would provide the Department of Defense the new personnel flexibility that it needs, while preserving important protections for individual employees. Our bill was approved by the Governmental Affairs Committee in early June and became the basis for our negotiations in conference with the House. The bipartisan approach that Senator Collins and I took on this issue met with opposition from the administration at every turn. At times, it appeared that some of our opponents were less interested in enacting sound human capital provisions than they were in providing as much power as possible to the Secretary of Defense. Nonetheless, we were able to build some important protections into the legislation that is included in this conference report. These include provisions from the Collins-Levin bill that would: preserve the right of individual employees to appeal adverse personnel actions to the Merit Systems Protection Board and, if necessary, the courts; ensure that the new personnel system cannot be used as a basis for reducing the amount of money allocated to civilian pay accounts; provides specific guidance and direction on the implementation of a pay-for-performance system; ensure that the Office of Personnel Management will play a central role in developing a new personnel system for the Department of Defense; and provide for the orderly phase-in of the new personnel system. The outcome on collective bargaining issues was more of a mixed bag. I believe that the right of employees to participate in labor organizations of their choosing, and to engage in collective bargaining through such organizations, is a fundamental one in our society. This view does not appear to be shared by the White House or the Department of Defense. Nonetheless, the collective bargaining provisions that Senator Collins and I were able to negotiate on this bill are substantially better from our perspective than comparable provisions included in the House bill and the Homeland Security Act. The Homeland Security Act authorize the Secretary of Homeland Security to waive any and all of the provisions of Chapter 71 of Title 5, which governs labor-management relations for Federal employees. This waiver authority gives the Secretary of Homeland Security complete authority to establish any new labor relations system he may choose, with virtually no statutory limitation. The House bill would have provided the same authority to the Secretary of Defense. This conference report does not include any authority to waive the requirements of Chapter 71. On the contrary, as the Chairman of the House Government Reform Committee pointed out on the House floor last week, this bill specifically lists the provisions of Chapter 71 as being non-waivable. The bill before us states, and I quote, ``Any system established [under this provision] shall . . . not waive, modify, or otherwise affect'' Chapter 71. This means that the Department of Defense, unlike the Department of Homeland Security, remains subject to the collective bargaining requirements of Chapter 71. The conference report also states that, notwithstanding the provision preserving the full force and effect of Chapter 71, the Secretary ``may establish and from time to time adjust a labor relations system for the Department of Defense to address the unique role that the Department's civilian workforce plays in supporting the Department's national security mission.'' These two provisions must be read together and both must be given meaning. The first provision states that Chapter 71 may not be waived or modified. The second provision states that the Secretary may establish a unique labor relations system. For both provisions to have meaning, the unique labor relations system established by the Secretary must be consistent with the requirements of Chapter 71. For example: Section 7102 of Chapter 71 states that each employee shall have the right to form, join, or assist any labor organization to engage in collective bargaining with respect to the conditions of employment through representatives chosen by employees. The unique labor relations system established by the Secretary must preserve this right. Section 7105 states that the Federal Labor Relations Authority FLRA shall determine the appropriateness of units for labor organizations representation and supervise or conduct elections within such units. Nothing in the conference report gives the Secretary of Defense any authority to waive or modify this requirement imposed on an independent Federal agency. Section 7111 requires an agency to accord exclusive recognition to a labor organization if the organization has been selected as the representative by a majority of the employees in a bargaining unit. The unique labor relations system established by the Secretary must preserve this right. Section 7114 states that a labor organization which has been accorded exclusive recognition as the exclusive representative of the employees in the unit represents and requires an agency to bargain in good faith with such a labor organization. The unique labor relations system established by the Secretary must preserve this right. Section 7116 provides that it shall be an unfair labor practice for an agency to interfere with, restrain or coerce employees or to refuse to consult or negotiate in good faith with a labor organization. Nothing in the conference report gives the Secretary of Defense any authority to waive or modify this requirement. Section 7118 authorizes the General Counsel of the FLRA to investigate allegations that any person has engaged in unfair labor practice. Nothing in the conference report gives the Secretary of Defense any authority to waive or modify this requirement applicable to an independent federal agency. Unfortunately, the conference report does provide for exceptions to the applicability of Chapter 71. In this regard, the conference report specifically provides that the labor relations system established by the Secretary ``shall provide for independent third party review of decisions, including defining what decisions are reviewable by the third party, what third party would conduct the review, and the standard or standards for that review.'' It also states that national level collective bargaining shall ``be subject to review by an independent third party only to the extent provided'' under this process. This language appears to preclude the appeal of such issues to the Federal Service Impasses Panel under section 7119 of Title 5. While I was disappointed by the decision to include language limiting the review of collective bargaining decisions, the preservation of other rights under Chapter 71 makes this provision far preferable to the personnel provisions in the House bill or the Homeland Security Act. Senator Collins' commitment to this issue has ensured that Department of Defense employees will have far greater protection under the National Security Personnel System than they would otherwise have enjoyed. I commend her for her steadfast determination to make this provision as balanced and as fair as possible. Several of the environmental provisions in the bill go far beyond what is needed to address the legitimate needs of the Department of Defense. The first of these would exempt defense lands from critical habitat designations without establishing a suitable alternative environmental safeguard. Both the House bill and the Senate bill recognized DOD's interest in greater flexibility for military training by allowing the use of an ``Integrated Natural Resources Management Plan,'' INRMP, adopted by DOD to protect endangered species in lieu of a critical habitat designation, which would be far more restrictive. However, the Senate bill included a threshold test-- used by the past two administrations--before an INRMP could be approved as a substitute for a critical habitat designation. The House bill contained a much less careful approach. In the course of the conference, we offered a long series of possible compromises on the threshold test. We suggested that DOD at least show that the INRMP provided a ``reasonable benefit'' for endangered species, or ``appropriate protection'' for endangered species--flexible tests that would have given the administration broad discretion to balance military readiness concerns against environmental protection concerns. We were met with a complete stone wall. We were told that while the Pentagon would of course be ``reasonable'' and take ``appropriate'' steps, these words could not be put into statute. Any adjective, we were told, would subject the Department of Defense to ``litigation risk.'' Of course, the only standard that raises no litigation risk is a standard that imposes no obligation. That appears to be the course that is administration has chosen when it comes to environmental issues. Similarly, on the Marine Mammal Protection Act, I believe that the Navy has some legitimate concerns about the application of the current statute, but I was concerned that the language in the House bill went too far in trying to address those concerns. As I read that language, the Navy would not even be required to seek a permit under the Marine Mammal Protection Act unless its activities would disturb marine mammals populations to such a significant extent that there are reproductive or survival implications for the species. If for some reason this weren't enough, and a permit wasn't granted, the provision would allow the complete exemption of activities that would have an even greater adverse impact on marine mammals. I offered to work with the Navy to try to reach agreement on more balanced language that would still address the Navy's concerns. The Navy initially encouraged such discussions, but the Department of Defense soon began to reject any change to the House language. As was the case with the Endangered Species Act, the Administration rejected every proposal that could have garnered broad bipartisan support in favor of an approach that would impose virtually no obligation at all on the Department of Defense to be environmentally responsible. I am concerned that this approach could result in real and unnecessary harm to marine mammals and a serious backlash against the Navy--which could undermine critical readiness activities in the long run. Finally, I am disappointed by the outcome of the conference on nuclear weapons issues. In my view, this conference report takes the United States in a dangerous new direction that marks a major shift in American policy, is inconsistent with our longstanding commitment under the Nuclear Nonproliferation Treaty, and undermines our argument to other countries around the world that they should not develop or test nuclear weapons. With this legislation and related actions over the past 2 years, the Bush Administration appears to be moving to change the traditional thinking about nuclear weapons, to make nuclear weapons more usable, and to see them as just another capability. Or, as a recent article in the New York Times Magazine suggests, to make the unthinkable--thinkable. Current U.S. law bans research and development of new nuclear weapons that could lead to their production. The specific weapons covered by the ban are so called low-yield nuclear weapons which have a nuclear explosive yield of 5 kilotons or less. Five kilotons is roughly a third the size of the nuclear bomb that was used at Hiroshima, which immediately killed an estimated 140,000 people and left many more injured. The Bush administration asked that this ban be repealed. This conference agreement would do so. There is some satisfaction that the conference agreement includes language adopted on the Senate floor, which would require specific congressional authorization before the administration may engineer, test, produce or deploy a low-yield nuclear weapon. However, this requirement is a poor substitute for current law, which imposes a complete ban on the development of such weapons. This conference report would also authorize the Bush administration request to continue work on a Robust Nuclear Earth Penetrator, RNEP. As with low-yield nuclear weapons, the Administration would be authorized to proceed with research, but would be required to obtain specific authorization to engineer, test, produce or deploy the RNEP. The RNEP program would modify one of two existing low yield nuclear weapons to create a nuclear weapon that will penetrate rock. Both weapons being looked at for possible modification are high yield nuclear weapons with yields that are approximately 30 and 70 times the explosive power of the Hiroshima bomb. At a time when the United States is trying to dissuade other countries from going forward with nuclear weapons development, when we strongly oppose North Korea's pulling out of the Nuclear Nonproliferation Treaty, and when we are spending over a billion dollars to prevent the spread of nuclear weapons material and technology, these actions would send a terrible message. We are telling others not to go down the road to nuclear weapons. But instead of being a leader in the effort to prevent the proliferation of nuclear weapons, we are recklessly driving down that same road. In short, the United States is following a policy that we do not--and should not--tolerate in others. This is an area where many of us have been deeply troubled by the direction of this administration because it would seem at the same time we are trying to dissuade other countries from going forward with nuclear weapons development, when we strongly oppose North Korea's pulling out of the nuclear nonproliferation treaty and when we are spending over $1 billion to prevent the spread of nuclear weapons material and technology, the actions we are taking here send the wrong message, which is continuing to go down a road of considering new and doing research on new nuclear weapons and modernization of nuclear weapons. We put something of a lid on it by specific language which the chairman introduced on the floor, which I very much supported and which requires that before we move to a development stage in any new weapon, that there be a specific authorization by the Congress that does give at least some protection, some certainty that we will not move to the development stage of a new modernized nuclear weapon without thorough consideration of the Congress. That, at least, is some constraint on that development. Finally, again, I thank our chairman for bringing this bill to the floor. It has taken tenacity and patience and all the other wonderful qualities he has to make it possible. He has a wonderful way of being inclusive and open in a way that is appreciated by everybody. It has been noted on the floor many times in the last few hours. I also thank our ranking minority members, as well as the other members of our committee who chair the subcommittees, for all the support they have given to this bill throughout the year. It took a long, long time for this bill to come to the floor and, finally, for us to come up with a conference report. We have a truly talented group of members on our committee. Of course, as the ranking member, I focus on the other ranking members of the subcommittees, but I know I speak for Senator Warner in thanking all of the members of our committee. He has already thanked all the members of the committee for their work this year. I thank our staff for their hard work, including Judy Ansley, Rick DeBobes, Chuck Alsup, Ken Barbee, Mike Berger, June Borawski, Leah Brewer, Jennifer Cave, David Cherington, Chris Cowart, Dan Cox, Madelyn Creedon, Mitch Crosswait, Marie Fab Dickinson, Brie Eisen, Evelyn Farkas, Richard Fieldhouse, Andy Florell, Brian Green, Creighton Greene, Bill Greenwalt, Carolyn Hanna, Jeremy Hekhuis, Bridget Higgins, Bruce Hock, Gary Howard, Andrew Kent, Jennifer Key, Greg Kiley, Maren Leed, Gary Leeling, Peter Levine, Patty Lewis, Tom MacKenzie, Sara Mareno, Ann Mittermeyer, Lucian Niemeyer, Cindy Pearson, Paula Philbin, Lynn Rusten, Arun Seraphin, Joe Sixeas, Christy Still, Scott Stucky, Mary Louise Wagner, Dick Walsh, Nicholas West, and Kelley Wilson. We could not have come to this position without our staff. If I can single out Rick DeBobes' work in particular, I know Judy will forgive me. This is his first year as staff director on our side, and Rick's work has been nothing less than extraordinary. It is exactly what we have come to expect from him. I must also note Peter Levine, because of his continuous work. I probably should not single out anybody other than Rick, but I think all the members of the staff on this side will also understand why I single out Peter, in addition to Rick DeBobes, for the kind of work they have given this committee this year.

Mr. LEVIN

Mr. LEVIN. Mr. President, I tried to catch as much as I possibly could about the Senator's exposition of Searchlight on the monitor in our offices. It is an absolutely fascinating history which he has shared with the Senate. I point out that the Senator who is doing this tonight is surely one of the most patient, determined, and beloved Members of the Senate. I ask this question of him as somebody who I think in the Senate on both sides of the aisle is admired, as somebody who tries to keep this institution working, and who has accommodated every Member of this Senate over the years, be it Republicans or Democrats. My question relates to Searchlight. I want to just see if the place I actually went through with my wife on our way to Death Valley, CA, might have been Searchlight. We went through it at night. It was a town in Nevada--a very long town. It was in a valley. It was probably 10 times longer than it was wide. It was one of those nights where all the lights of the town sparkled. I am sure Nevada probably has some of the clearest air in the world. I wonder whether or not that is the shape of Searchlight. Is it a very long, rectangular town?

Mr. LEVIN. If the Senator will yield for one additional question.

Mr. LEVIN. I wonder if the Senator will yield for an additional question without losing his right to the floor.

Mr. LEVIN. Are there not two other factors involved here: One, that in all four cases there has been significant debate on each of those four judges before the votes that were cast, the cloture votes which were cast? As a matter of fact, there is a suggestion there may be additional cloture votes for which debates would be totally appropriate. If the majority is going to bring up additional cloture votes on any of those judges, there would be debate before cloture on those judges. But what the 30-hour proposal is, is something which does not lead to votes. Is the Senator from Michigan correct, there are no votes at the end of the 30-hour use of the Senate's time? (Mr. BENNETT assumed the Chair.)

Mr. LEVIN. Mr. President, will the Senator yield for a question?

Mr. LEVIN. Mr. President, one of the areas which the Senator from Nevada has led us to is the question of concurrent receipts. We are going to make some progress on that this year. I say that 90 percent of the credit for the progress we are going to make in that area belongs to the Senator from Nevada. He was modest in mentioning it here in terms of what is before the Senate. The success we have had in overcoming a veto threat from the administration--that if we finally allow people who are disabled to receive both the disability benefit as well as a retirement benefit and not take away one benefit when they receive the other--we were finally able to accomplish that because of the leadership of the senior Senator from Nevada. I want to ask him whether it is not accurate that one of the bills which awaits our consideration would be the conference report that accompanies the Defense authorization bill which contains the provision I just mentioned which would finally allow for at least the people who have 50-percent disability or more the concurrent receipt of both their disability benefit and their retirement benefit, and end the unfairness that you cannot get a retirement benefit.

Mr. LEVIN. Now, does that not mean, for people who might be watching this, that it was required that the supporters of that judge produce 60 votes?

Mr. LEVIN. Is the likelihood that we will be able to finish all the appropriations bills reduced when we spend 30 hours on some other subject which, again, does not lead to a vote on those judges, but nonetheless is it less likely that we will be able to finish all the appropriations bills as a result of allocating that time to that debate and, as a result, if we do not finish the appropriations bills individually, does this mean it is more likely that we are going to end up with some kind of an omnibus appropriations bill which bollixes together three or four appropriations bills which should be and usually are treated separately, amended separately, debated separately in the light of day?

Mr. LEVIN. Will the Senator yield?