Joseph Lieberman

Mr. LIEBERMAN

Mr. LIEBERMAN. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a hearing on ``Stopping Child Pornography: Protecting our Children and the Constitution'' on Wednesday, October 2, 2002 in Dirksen Room 226 at 10:00 a.m. Witness List: Daniel P. Collins, Associate Deputy Attorney General and Chief Privacy Officer, United States Department of Justice, Washington, D.C.; Frederick Schauer, Professor, John F. Kennedy School of Government and Harvard Law School, Cambridge, MA; Anne M. Coughlin, Professor of Law, University of Virginia School of Law, Charlottesville, VA; Ernie Allen, Director, The National Center for Missing and Exploited Children, Alexandria, VA.

Mr. LIEBERMAN

Mr. LIEBERMAN. Madam President, responding through you to the Senator from Pennsylvania, I genuinely appreciate the thought and effort he is giving to this to try to find a way out of an impasse that is stopping us from doing what we really have a responsibility to do, which is to create the Department of Homeland Security as soon as possible. And he has just offered, on the floor of the Senate, a new idea, at least one I had not heard before and I do not believe has been part of the negotiations. I think we ought to try to sit down--involving, obviously, some of those who have been working on this compromise; Senators Nelson, Chafee, Breaux, folks from the White House, Senator Thompson and I and yourself, I say to you, Senator Specter--as soon as we can to see whether this idea you have offered can be a breakthrough. The fact is, on collective bargaining rules, as I have been saying throughout this debate, not on a national security premise for eliminating the right to be a member of a union, but throughout the statute there is a system that says that a President, a Secretary, an agency head, in time of national emergency, can do almost anything to override collective bargaining provisions because the national emergency, national security comes first. In a way, you are suggesting a similar priority, hierarchy, for the civil service rules. It is an idea very much worth considering. I fear we are kind of on automatic pilot, with a cloture vote--the fifth one, if I count correctly--on which we are not going to invoke cloture. And the clock is running because we are heading, soon, towards a debate on an Iraq resolution, which would take the homeland security measure back to the calendar. So I welcome your thoughtful initiative. I, for one, will be glad to spend any amount of time with you and the others I mentioned, and anyone else, to see if we can break this logjam, present some due process for Federal workers--which I know is your desire as well, I say to Senator Specter--but also preserve the executive authority, not just of this President but of the Presidency on into the future, particularly when national security is involved. So I thank my colleague, and I hope we can go to work on this idea.

Mr. LIEBERMAN. Madam President, responding to my friend from Pennsylvania, I think the question in the report of what the White House has really demonstrates how close we are to an agreement. I prefer the word ``majority;'' that is, to set some standard. Basically, this provision of Nelson-Chafee-Breaux gives some minimal due process protection for Federal workers in the future from a President who would arbitrarily apply this national security waiver to remove collective bargaining rights of Federal employees. One of the elements of due process is to say for the determination to be made, a ``majority'' of the employees of the agency or office department would have to be involved and, speaking generally, national security. A ``significant'' number seems a little lower. I think we can probably find a word. It is a little too low, it seems to me, between those two words to grant both some comfort level for Federal employees without diminishing the authority of the President. I say again these statements are some of the reasons the President will have to make his determination. But the President's determination, for all intents and purposes, is final. As we discussed last week, there is one reported case where an appeal was made of a determination by President Reagan. He just gave an order. He didn't make a determination. The circuit court even upheld that because the presumption in favor of the President when he invokes national security is so high. But I welcome this colloquy with the Senator from Pennsylvania. I think somewhere, if the concern of the White House on this particular section is about the word ``majority,'' we can find another word which I hope can satisfy all concerned and still provide that minimal due process for Federal employees. After this vote that is coming up, I hope we will continue to work. I fear cloture will not be invoked. I think the Senator from Pennsylvania, along with my colleague, the Senator from Tennessee, can play a critical role in getting us over this last obstacle which stands between us and adopting a bill we all say we agree on 95 percent of, except this major disagreement.

Mr. LIEBERMAN. Responding, Madam President, to the Senator from Pennsylvania, that is my understanding as well. The language with regard to the particular section cited by the Senator from Pennsylvania in the Nelson-Chafee-Breaux language is supplementary to what is in the statute, and essentially adds those two extra determinations the President makes to waive collective bargaining rights of Federal employees because of national security reasons, and the determination is totally that of the President.

Mr. LIEBERMAN. I yield that time to the Senator from Louisiana, unless the Senator from Tennessee wishes to go forward.

Mr. LIEBERMAN. I thank my friend from Illinois for his kind comments. I hate to say it because, by nature, I am an optimistic and trusting person. As we all know, the clock is ticking and the Senate is going to move to debate on a resolution concerning possible military action in Iraq. That means this will go back to the calendar. Will it ever emerge? I don't know. I would hate to think that will happen on a matter of such critical national security interest. This is the protection of the lives and safety of the American people we are discussing. The evidence grows that the disorganization of the Federal bureaucracy contributed to the vulnerability that the terrorists took advantage of on September 11. As I say, I am a trusting person. So I keep asking myself, why won't the White House negotiate on these matters? I have been reading and listening with alarm to some of the things being said, and they trouble me because I worry now that we are being stopped from achieving an agreement on a matter that we agree 95 percent on, for reasons that have something to do with the election. Last week on this floor, Senator Harry Reid of Nevada introduced into the Record an e-mail sent apparently to almost 2 million people on the Republican National Committee mailing list that said the Senate is more interested in special interests in Washington and not in the security of the American people, and we will not accept a Homeland Security Department that doesn't allow this President and--et cetera, et cetera, and then quoting President Bush. It also says the bipartisan approach is stalled in the Senate because some Democrats chose to put special interests and Federal Government employees ahead of the American people. That is untrue. President Bush altered his rhetoric at the end of last week after the eruption over that language and toned it down a bit--but still kept it in a political context. In Flagstaff, AZ, last week, reading from the Washington Post of September 28, the day before, the reporter Edward Walsh says: The President today portrayed his differences with the Senate over the creation of a Department of Homeland Security as a struggle between common sense and business as usual, and he urged the election of Republicans to help him implement his idea. Mort Kondracke reports yesterday Roll Call a conversation with our colleague, the other Senator from Tennessee, Mr. Frist, chair of the National Republican Senate Committee: In an interview, Bill Frist, chairman of the NRSC told me he has no intention of turning Iraq into a campaign issue, but every intention of doing so with homeland security. Of course, it is the right of the Republican Party and the President to make an election issue out of anything they want to make an election issue out of, but this is a matter on which we should not be engaged in politics. This is a matter on which we should be reasoning together to get over the small differences that remain on this question, to reach common ground and get this done. The Gramm-Miller substitute leaves out some very critical parts that our committee put in. Senator Durbin has a part on information technology. Of course we should support it. Senators Carnahan and Collins put in an amendment to create a COPS-like program for firefighters. There should be broad, bipartisan agreement on that. I could go on. Senator Carper has a provision relating to the safety and security of Amtrak facilities. None of those are in Gramm- Miller. If we can reach agreement on this question of protection for Federal Homeland Security workers and protecting also the President's prerogatives regarding national security, I would guess that the Gramm- Miller substitute, as amended by Nelson-Chafee-Breaux, would have a real head of steam behind it and would probably find its way rapidly to the conference committee. Let me make this appeal to my colleagues on the other side. We are not a unicameral legislature. The White House seems to be insisting that we negotiate to the final point here in the Senate bill, and with that stubborn intransigence they are blocking us from achieving all the rest that we want to achieve in terms of homeland security. We can pass the bill here. It then goes to conference. The process continues. So let's not have it reach a dead end here, which it is rapidly approaching, as we move on to the Iraq resolution and the probability of adjourning--or at least recessing--quite soon thereafter. I appeal to my colleagues--mostly Republicans, but some of those Democrats who voted against cloture the first time on Gramm-Miller--to listen to the words of the Senator from Pennsylvania. The best way to get this moving is to invoke cloture, force the compromises we need. Let's have the meetings that Senator Thompson, Senator Specter and I have talked about with Senators Nelson, Breaux, Chafee, and anybody else who wants to come. This is an eminently solvable dispute, if we have the will to do it. Then we can go on to protect the security of our people and dispatch our responsibility under the Constitution. How much time do I have remaining?

Mr. LIEBERMAN. Madam President, we have now entered the sixth week in which the Senate has been considering legislation to create a Department of Homeland Security which all of us, most all of us, agree is urgently necessary because the current disorganization in the Federal homeland security apparatus is dangerous. This is the sixth week, not all day every day, but parts of 6 weeks, beginning today. Second, we are about to have the fifth opportunity to invoke cloture on this bill, to stop the debate in deference to the urgent national security interests in adopting this legislation. I fear the majority of my colleagues are on automatic pilot in which they are, once again, for reasons I consider to be peripheral, marginal, and unknowing, insensitive to the fact that the Senator from Texas, Mr. Gramm, and I and everybody else have acknowledged that on more than 90 percent of this bill, we all agree. So we are prohibiting action on a matter of urgent national security importance because of a small disagreement. There is a lot of interest in it. It means a lot to Members on both sides. Why not follow the leadership and independence of the Senator from Pennsylvania who has just said: My Republican colleague, this is too urgent a matter to delay any longer. I will vote for cloture. There is nothing like cloture and the imminence of a vote on the underlying bill to force the kind of compromise that we need to have in the interest of national security and that we are so close to having. Up until this time, largely through the good work of Senators Ben Nelson, John Breaux, Lincoln Chafee, encouraged by a lot of us, there has been a show of flexibility with regard to the protections for homeland security workers and the President's desire for executive authority, particularly in cases of national emergency, that Federal employees and those who are concerned about their rights in the Chamber have moved. In fact, the Nelson-Chafee-Breaux compromise moves back from the protections for homeland security workers our bipartisan committee bill provided. I supported those compromises, and the Federal employee associations, workers groups, unions also supported them because they know how urgent it is to adopt a homeland security bill. The White House regrettably has moved hardly at all. The Senator from Texas who led the debate on the other side has moved hardly at all. That is why we are at this impasse.

Mr. LIEBERMAN. May I say to my friend from Tennessee, that was a surprise to me as well, a pleasant surprise in my case, one I appreciate.

Mr. LIEBERMAN. Madam President, had my friend from Tennessee used his time?

Mr. LIEBERMAN

Mr. LIEBERMAN. Mr. President, I thank my friend from Utah. I return his respect and trust quite directly. I appreciate what he said. I appreciate the tone in which the Senator from Utah spoke, and just to get the nonsense of last week behind us, that we can obviously disagree on issues related to this bill or other bills without questioning, without impugning each other's motives or, Lord knows, questioning each other's patriotism. I agree, when we create this Department of Homeland Security--and we will create a Department of Homeland Security; we are going to find a way to do it before long, I hope--it is going to be a massive undertaking: 170,000 employees, clearly the largest reorganization of the Federal Government since the end of the 1940s, the post-Second World War reorganization of our national security and foreign policy apparatus. As the Senator from Utah said, this is not just putting a new name on the door, ``Department.'' This is taking a lot of different people from a lot of different places in our Government and bringing them together under a strong Secretary in focused divisions within that Department. Those are exactly the parts that are in common between the proposal from our committee and the White House proposal. Why are we doing it? Simply because the current state of disorganization is dangerous. When you have three, four, or five different Federal Government agencies at a point of entry into the country at the border and they are each in separate offices--they may bump into each other, but they are not really working together in a coordinated way; they usually don't even have telecommunications equipment that speaks easily in a crisis to one another--that is dangerous disorganization. If you have, as we know from the investigation of the Joint Intelligence Committees, a situation where there are bureaucratic barriers between the intelligence community, the law enforcement community, and information is not shared in a way that can put all the dots, as we keep saying, on a board so you can see the outlines of a potential terrorist attack so you can stop it, that is disorganization that is dangerous. I could go on and on, to each of the five or six divisions of the new Department. So that is why we are all proposing this step. It is going to be a big job. I want to make it clear. I know the Senator from Utah didn't mean to suggest this in reporting our conversation. I am not now, nor will I be a candidate for Secretary of the new Department of Homeland Security. When he asked me whether I would advise who was taking it to take it under the Nelson-Chafee-Breaux language--if they should accept--my answer was yes. I want to explain why, in the calm of a Monday afternoon. In this particular colloquy, we may have an opportunity to set more on the record as I see it than has gotten in to this point. We have 170,000 employees to be moved to the new Department. The number I hear about union-represented employees is approximately 43,000 who will be moved to the new Department. There are two factors at work here. One is an anxiety among a lot of Federal workers that this existing statute, which has been referred to, that was adopted in the Carter administration, that gives the President of the United States extraordinary authority to declare that a particular category of Federal employees should not be allowed to belong to a union, an employee association, because that union membership would be inconsistent with national security--the existence of that statute applied 10 or 11 times since adoption in the late 1970s in the Carter administration, and usually in quite narrow areas--the Defense Intelligence Agency and in similar groups-- the existence of that statute used for the first time by the current administration in January to deprive several hundred employees of the U.S. attorneys' offices around the country of the right to collectively bargain, to join unions, created widespread anxiety among Federal employees. Senator Thompson and I had some discussion on this last week. I don't need to get into the details of what the administration intended to do and what the employees thought. From the employees' point of view, they were worried that this statute would be used in a broader way than ever before to deny them the right to collectively bargain. I must say, again, that the right to collectively bargain among Federal employees is quite limited; most notably and, of course appropriately, Federal employees belonging to a union do not have the right to strike. That is a law. There are various other items that are normally negotiated between management and unions that are not negotiated in the Federal employee case--most notably salary. We are the managers, in that sense, who set salary levels--we in the Congress. So now we come to a recommendation that the Department of Homeland Security be created. There is great anxiety--and it remains so--among the 43,000 employees currently represented by unions who, when they are moved to this Department, because the name of the Department is Homeland Security, they might well be deprived of their collective bargaining rights. Our committee considered that and we came up with a proposal which, to state it in summary, would have allowed employees to appeal such a decision, such an order denying them collective bargaining rights to the Federal Labor Relations Authority--two-thirds of whose members, incidentally, are appointed by the sitting President. So, presumably, it would not have been a hostile board. When we came to the floor, and after that measure was in our proposal, the White House was quite adamant on the point that it would represent a lessening of the President's national security authority. Though the lessening would have been small, literally that was true. That would have been true because we would have subjected the Presidential decision on national security grounds to review by this administrative body and appeal to the administrative body. That is why, when I saw the gridlock here, and understanding that we agree on more than 90 percent of the two proposals--one White House and one committee--before the Senate now, I encouraged our colleagues, Senators Nelson and Breaux, to pursue a compromise. They engaged Senator Chafee in these discussions and they came up on this one with a proposal that the President would retain the authority he has, but would have to more clearly enumerate the reasons why he was invoking this authority; and, particularly, he would have to make clear, or give a statement, that the agency whose employees he was denying the right to collectively bargain had had its mission changed from the many years since the Carter administration, when no previous President had said that doing the work of that agency was inconsistent with the union membership to national security, with no right of appeal to an administrative agency. To me, that creates what I might call a kind of minimal due process for Federal employees, just to require the President who, by the one court case in this statute that had been decided, the President's authority here in that court case was held to be substantial. I mean, this is a case where President Reagan removed collective bargaining rights from a group of Federal employees for national security reasons and did not recite a determination as to why he did it. I believe the district court sided with the employees. It was appealed to a circuit court, and the district court said the President has to at least recite a determination rather than just issue an order. The circuit court actually said--I am paraphrasing and probably making something more complicated, a little more direct--the circuit court said they accept a presumption that though the President did not recite a determination, when it came to national security, his judgment was determinative. It set a very high standard for anyone questioning how a President would exercise this power the statute gives him. So my own feeling is that in the Nelson-Chafee-Breaux compromise, we have now put in a little language to require a statement of why the President did it, and the work of this Department, or agency, or office that changed since they moved to the new Department, but effectively no appeal from that. So I think we achieved a little measure of due process for the employees, without at all diminishing the national security authority of the President. On the question of civil service reforms, or changes, and so-called management flexibility, when the President first introduced his proposal and embraced the idea of a Department of Homeland Security, I remember speaking to Governor Ridge. He is a good man, and he was good enough to bring this up himself in a conversation we had a couple weeks ago. He said to me: I remember, Senator, that, as soon as the bill came out and you saw some of the changes we wanted on civil service, you appealed to me, why can't we put this aside for 6 months? This Department is going to take months to get up and functioning. I remember saying this to Tom Ridge--that this is a trap, a web, and we are going to get so entangled in it that it is going to run the risk of making it hard for us to adopt legislation creating a Department of Homeland Security. This is one of those rare cases where my prediction was correct. I say that with some understandable humility. I fear that is where we have ourselves now. In the committee bill, we adopted some bipartisan civil service reforms, worked on with great diligence by Senators Akaka and Voinovich over many months. Other than that, we didn't change the existing civil service law, except that we said we required the new Secretary of the new Department, 6 months after the effective date of the legislation, to come back to Congress and tell us whether he or she thought we needed to do anything more about management flexibility as the Department was taking place, based on the experience they had. So that is where our committee bill was. The President came in with a series of reductions in civil service protections for employees who are longstanding and that deepened the anxiety of the Federal employees that this Department was going to be used as a way to cut back on their protections, on the accountability, on the kinds of protections that, at their best, don't create rigid bureaucracy, but help to create the climate in which the best people are attracted to Federal service. The President's bill gutted that. Now comes the Nelson-Chafee-Breaux compromise, and here, too, I think they did something quite reasonable and progressive, which is they itemized four different areas where the President can exercise broad management flexibility, but they did something that builds on the best labor-management relations in the private sector and some very hopeful experiences with similar labor-management relations in Federal Departments, particularly the Internal Revenue Service. They said in the Nelson-Chafee-Breaux compromise: Mr. Secretary, we are giving you this flexibility in these areas of current civil service protections, but we require, before you implement them, to attempt to negotiate them with your workers. That is why I say in the best of modern private- sector labor-management relations, the old hostility is not there. It is: Let's sit down around the table and figure out what works best for the company; you want jobs, we want to make a profit; let's figure out how we can best do this together. Let me mention, this is exactly the authority Congress gave the Internal Revenue Service a few years ago. It has worked quite well. In other words, in that legislation we said: Director of Internal Revenue, you have the authority to negotiate changes in the civil service, but you have to do it with your employees. In fact, they have negotiated some very progressive agreements with both sides agreeing once they sat down around the table. In that legislation and in this Nelson-Chafee-Breaux proposal, so again we protect the authority of the President, we say if the Secretary of Homeland Security and the workers in the Department cannot reach an agreement, then they have to take it to arbitration to the Federal Service Impasses Panel. This is a board, again, all of whose members are appointed by the current President, so it is not a hostile board, and that board makes the final decision. I do believe that our colleagues, Senators Ben Nelson, Lincoln Chafee, and John Breaux, have worked out a proposal, a genuine compromise that is different from what our committee reported out but provides a door opener both to management flexibility, to some progress in management, and does not diminish ultimately the authority of the President of the United States, certainly not with regard to his ability and capacity now to invoke national security with regard to union membership rights of Federal employees. I am puzzled as to why the administration has not accepted this compromise proposal and the Senator from Texas is effectively involved in a filibuster of the overall bill. I remain open to discussion about parts of this. I appreciate what the Senator from Utah said about a time limit. Five years seems like a long time to me. One of the issues we considered in the committee, and I know was considered in the negotiations, was the possibility, with regard to the civil service management flexibility, of giving--we call it demonstration authority, but the idea was for a limited period of time to give the President some of the authority he wanted, and then come back and see how it worked and consider whether we wanted to extend it. I am grateful for the words of the Senator from Utah, and as we begin our new week, after some of the heat that was exchanged on the floor of the Senate, I am grateful for the coolness of his--in the best sense of that word--that is, the thoughtfulness of his remarks today. I will be glad to continue to talk with him to see if we can find common ground. We ought not to be in this gridlock on what I still consider to be a side issue from the main business of this Department: protecting the security of the American people. As the Senator from Utah said, we never want to give the impression we do not think the employees who will move to this Department are as concerned about homeland security as we and the rest of the American people are. In fact, the evidence before us is quite ample that Federal employees are concerned. The stories are legion and numerous of Federal employees--I think of FEMA employees--they were somewhere else and they rushed to the Pentagon to be of help; they flew to New York; they worked hours and hours of overtime. Of course, the most vivid demonstration of the way in which union membership is not inconsistent with national service or sacrifice is the firefighters in New York, several hundred of whom were off duty on September 11. When they heard what had happened, they just rushed to the scene. Nobody was thinking about whether this was supposed to be a day off under the collective bargaining agreement, what risks they were assuming, or they were going to be asked to do things that were not quite in their job description. Needless to say, a lot of them not only rushed into the building, but they never came out. I hope we can find common ground. I offer anything I can do to supplement the extraordinary positive work of the previous triumvirate I mentioned, Senators Nelson, Chafee, and Breaux, to get over this last big hurdle and get this bill adopted in the Senate, get it to a conference with the House, and then get it to the President's desk for signing.

Mr. LIEBERMAN. I will be happy to do so. I thank the Senator for coming to the floor and look forward to his remarks.

Mr. LIEBERMAN. The Senator's timing is good. That was the windup sentence.

Mr. LIEBERMAN. In response to my friend from North Dakota, he is absolutely right on a few of the points involved. Words have consequences, both in our personal lives and in our public lives. When you take the good-faith dispute we have had here about this single question of Federal employees' rights to be transferred to the new Department and suggest people in the Senate are putting those concerns ahead of national security by which you are questioning their motives, and even their patriotism, to some extent, it has consequences. It has consequences because we naturally feel we have been treated unfairly. It is unfortunate; it has consequences beyond this bill. It began to have consequences last week on questions related to a resolution that would authorize the President to take military action in Iraq, if necessary. I think what my friend from North Dakota has said is very important to remember here. We have tried and have not always succeeded. But when we come to questions of national security, foreign and defense policy, as we always say, partisanship ends at the Nation's borders. We are in a new world post-September 11, 2001, where national security is within our borders. The questions of national security are within our borders. We should strive for the same absence of partisanship and debate this as we do internationally. That is why we have all got to lower our voices a bit and try to focus on the very narrow area of difference we have so we can get this job done to protect the security of the American people. The Senator from North Dakota is right. The truth is, Senator Arlen Specter, our Republican colleague from Pennsylvania, and I and others introduced a bill to create a Department of Homeland Security in October of last year. The administration had what I always respected as a good-faith difference of opinion. They didn't feel it was necessary. They felt the Office of Homeland Security the President created by Executive Order could do the job. I always felt, and Senator Specter felt, we needed a Department with a strong Secretary with budgetary authority and line authority over people serving under them. That dispute went on for 8 months until the President endorsed the idea on June 6. I never would have thought to say or allege, because the President and we had this dispute about how best to protect homeland security, somehow the President was putting that bureaucratic or ideological vision--whatever you call it--ahead of his commitment to national security. Obviously, that would have been unfair, just as I think some of the statements the President has made in the last week are unfair. It is Monday, and it is a new week. Hope springs eternal. I hope we can sit and reason together with the biblical ideal--the prophet's vision--in our minds. There is a danger lurking out there. The terrorists are still out there. They hide in the shadows. But they are at work planning to strike us again. Shame on us if we don't get together and create a Department that can prevent them from doing that. Let us do it this week. We can break this logjam. It is that simple.

Mr. LIEBERMAN. Mr. President, I thank the Chair. I thank my friend from North Dakota for what he said. It has gotten frustrating in the last couple of weeks, and all the more so because we agree on 90 to 95 percent of what ought to be in legislation creating a Department of Homeland Security. The senior Senator from Texas, who is the lead advocate for the administration, for the White House, for the President, and for himself, has said the substitute he offered to the bipartisan bill that came out of our Governmental Affairs Committee is 95 percent the same as the Governmental Affairs Committee bill. We have a 5 to 10 percent difference, mostly focused on this question of how you protect and reassure Federal workers who are moved from other Departments to this new Department while not undercutting the President's authority over national security. Surely we can find a way to bridge that gap on a bipartisan basis. As my friend from North Dakota knows, Senator Chafee is taking a lead role in creating a bipartisan alternative to the parts of our committee bill that dealt with this question. And I accepted that compromise even though it wasn't the one our committee first adopted and I proposed, because I thought it was a way to break the logjam and allow us to create and enact into law that 95 percent which we all agree on. But the White House has remained unyielding.

Mr. LIEBERMAN

Mr. LIEBERMAN.--and I fear the White House is now blocking the early adoption by the Senate of legislation that would create a Department of Homeland Security.

Mr. LIEBERMAN. I agree with everything the Senator has said. We have so much important work to do. We ought to go about it, even when there are differences of opinion, not impugning--to use his term--each other's motives. Would the Senator not agree that the processes of government would also be made not only more productive but more respectable if the President himself would not impugn the motives of Members of Congress of either party when they disagree with him?

Mr. LIEBERMAN. Will the Senator respond to a question briefly?

Mr. LIEBERMAN. Mr. President, after the exchanges that were heard on the floor yesterday, I must say I hope we can come back to this debate on homeland security and focus more directly on all the common ground we have with a spirit of compromise and clearheaded perceptions that can bring us together so we can get this done. I find the comments of the Senator from Texas, who is about to leave the floor, so full of misunderstandings or misperceptions and so full of inflexibility that I must respond to them. The Senator talks about delay. Let me just recite some history on this bill. It was in October of last year--almost a year ago--that Senator Arlen Specter, our distinguished Republican colleague from Pennsylvania, and I introduced a bill, a piece of legislation, to create a Department of Homeland Security. That measure came from work our committee had done. But these special interests that Mr. Gramm, the Senator from Texas, invokes, throws around, they were not involved in the construction of that legislation. That legislation came from public hearings we had, and primarily and largely from a nonpartisan citizens commission created according to legislation sponsored by the former Speaker of the House, Newt Gingrich, chaired by two distinguished former Senators, Republican Warren Rudman of New Hampshire and Democrat Gary Hart of Colorado, who suggested a Department of Homeland Security. That was October. Talk about delay. The President of the United States took the position then that the executive office he had created with Governor Ridge could handle the urgent and enormous new responsibility post-September 11 of homeland security. We respectfully disagreed. I must say, just to harken back to the debate of yesterday, that was a disagreement on substance. I never would have thought to suggest that the President of the United States was putting the bureaucratic opposition to the new Department of Homeland Security ahead of the national security interests of the United States, which was suggested earlier this week by the President himself in referring to this marginal dispute--significant but marginal dispute--that we are having over how best or whether to protect the rights of homeland security workers. So that was October, November, December, January, February, March, April, May. In May, the Senate Governmental Affairs Committee reported out a bill, based on the one Senator Specter and I put in, on a 9-to-7 vote, creating a Department of Homeland Security. President Bush and most of my Republican colleagues--the seven Republicans on the committee who voted on that--were opposed to the Department at that point. Because we are talking about delay, the truth is, if we had all gotten together last fall, this Department would be up and protecting us today. But we had a difference of opinion about it. On June 6, President Bush announced that he endorsed the idea of a Department of Homeland Security. That was the turning point that led us to what I thought was the inevitability that we would create such a Department because of the urgent need to do so post-September 11, 2001. We worked together on a bipartisan basis with the White House. We accepted some of the changes that the White House had in our legislation. We worked with colleagues on the committee and outside-- Republican and Democrat--to improve our bill. At the end of July, after 2 days in markup, the committee reported out the bill. I said at that point that 90 percent of our committee bill was in concert, was in agreement, with what President Bush had in his bill--90 percent. Senator Gramm, after his considerable work on the Gramm-Miller substitute, said that--he raised me 5--95 percent of his substitute was the same as our bill. So can't we agree on that 5 or 10 percent on which we have disagreement? Can't we come together in the interests of the urgent national need for homeland security? No one is delaying on this side. Right now, the reality is that the Senator from Texas is leading an effective filibuster against moving ahead on this bill. And why? Because we have achieved a compromise on the major outstanding point of division, which is, how do you protect the rights of homeland security workers? It is a bipartisan compromise because one Senator, the courageous Senator from Rhode Island, has decided that he is going to find common ground in the interest of preserving the national security authority of the President while giving a little bit of due process to Federal workers. That is all this does. I think there may be some others of our colleagues on the Republican side who would support this compromise because it is reasonable and it meets the test that the White House set up that they did not want any diminution of the President's authority. Under this compromise, there is none. Senator Nelson of Nebraska will speak about this in a moment. He is an architect of this proposal. So the fact is, my friend from Texas does not have the votes. We have at least 51 on our side. And for that reason, he is not going to let us go ahead and vote. He asks that there be an up-or-down vote on the President's proposal, but what he is asking for is something that is pretty much unheard of around here: Don't allow any amendments. The President is a good man. The Senator from Texas is a good man. But they are not infallible. None of us is infallible. The Senate has a right to amend. In fact, we are asking here for one amendment. I wish the Senator from Texas were on the floor because I would ask him, wasn't he aware that the President's proposal in the House--the Republican-controlled House--didn't get voted on without amendment? There were amendments offered. They improved it. The Gramm-Miller substitute changes the proposal the President initially made because that is the way this process works. So if there is any inflexibility here, I say, respectfully, it is on the side of the Senator from Texas and those who stand with him. We are so close to having a reasonable compromise and a good bill to create a Department of Homeland Security. And he is right; the terrorists are out there. They are planning right now to do us damage. And we remain dangerously disorganized in the Federal Government. One of the things our bill will do is to plug the gaps, close the inconsistencies, break down the walls that the investigation of the Joint Intelligence Committee has shown us contributed, I believe measurably, to the vulnerability that the terrorists took advantage of in September of 2001--September 11. So I am sorry we are back to this futile, foolish debate. This is a good compromise, the Nelson-Chafee-Breaux compromise. Senator Nelson will speak to it in more detail in a moment. We agree on 90 to 95 percent of the underlying bill. We have the same departments. Let's get this done and stop this inflexibility. Mr. President, as a show of good will, I want to offer here on the floor now what we informally offered to the Senator from Texas yesterday off the floor. He asks for something that usually does not happen around here, which is an up-or-down vote in the sense of without the right to amend. But just to show how anxious we are to move forward, Mr. President, I ask unanimous consent that immediately upon the disposition of Senator Nelson's amendment, Senator Gramm be recognized to offer a further second-degree amendment, which is the text of the President's proposal as contained in amendment No. 4738, and that the Senate then vote immediately on his amendment.

Mr. LIEBERMAN. Mr. President, that offer remains pending. I hope Senator Gramm will consider it. It says that the Nelson-Chafee-Breaux amendment, compromise, would be voted on first, and then we give Senator Gramm the opportunity to have the President's proposal voted on. Now, is he worried that that means he might not have the votes for the President's proposal without the Nelson-Chafee-Breaux amendment on it? I ask him to consider that because it would both give him what he asks for and it would allow the Senate to move forward and complete our business, pass this legislation, get it to conference with the House, and create a Department of Homeland Security to protect the American people. There has been too much nonsense in this debate, too much irrelevancy, and not enough appreciation in this hour of urgent vulnerability for our country about how critically important it is for us not to do business as usual but to rise above the normal nonsense and do what we are supposed to do on foreign and defense policy, which is to forget our party labels, to leave our ideological rigidity at the door, and come here and reason together in the interest of the beloved country we are privileged to serve. I yield the floor.

Mr. LIEBERMAN. Mr. President, responding to the Senator from Pennsylvania, I will begin and still leave the floor with Senator Thompson. I think Senator Nelson may want to respond also. It is my understanding that it is the clear intention of the sponsors of what I call the Morella-Nelson-Chafee-Breaux amendment that it supplement, not replace, existing language. I say to the Senator from Pennsylvania, this concern he expresses is real. This is a concern that does not go to the intentions of the sponsors of the amendment. I have not talked to him, but let us reason together how we can make clear in this legislation, in this amendment, what the intentions are. It is not to alter this. If I were to describe--and I stand to be corrected by the sponsors of the amendment--if I were to describe what the amendment does in this regard, regarding collective bargaining rights, it says to the approximately 43,000 to 47,000 currently unionized employees of various departments that will be moved to the new Department of Homeland Security--and remember, some of these people have worked for decades; some have worked for a few years--while the existing authority that this President, the previous President, all Presidents back to President Carter have had, to suspend collective bargaining rights in the interest of national security, these folks have continued to keep their jobs and be in unions because no previous President has believed that national security was inconsistent with their jobs being unionized. All we are saying in this compromise amendment is to now, simply because they have been moved from where they are--Border Patrol, Customs agents, FEMA, Coast Guard, civilian employees, whatever--they have been moved to the Department of Homeland Security, to take their right to belong to a union away, you have to show their job has changed. The President has to declare it and that is it. There is no appeal. That is my understanding of the intention of the amendment. But on the question, Is the amendment supplementary or does it replace, it is intended to be supplementary. We will work with the Senator from Pennsylvania to make that clear. I wonder if the Senator from Tennessee would mind if the cosponsor of the amendment spoke.

Mr. LIEBERMAN. Will the Senator yield the floor without losing his right to the floor for a moment?

Mr. LIEBERMAN. I thank my friend from Tennessee. I want to take a moment to try to answer the very good question the Senator from Utah has asked which is, regardless of what our positions are on this particular amendment--Nelson-Chafee-Breaux, a bipartisan amendment--hasn't the President said he would veto the bill if it was attached? I have not heard that specifically with regard to this amendment. Maybe I missed it. And I am glad I have not heard it because of the history I want to recite now. The President, or somebody in the White House--maybe the President himself--said if the bill, as it came out of our committee, had the provisions with regard to Federal employees, homeland security workers, in it, that the President probably would veto the bill. I must say when that was said and the media asked me about it. I said: I can't believe the President would veto this bill based on that difference because we agree on 90 to 95 percent of the components of the bill. It is creating a new Department. We all agree it is urgent. Let's get it done. We can argue about this. As a matter of fact, Governor Ridge was good and honorable enough to say to me at a meeting about this subject a week or 2 ago: I do remember at the beginning you, Senator Lieberman, said to me, Please, let's not get into a fight over civil service. Let's pass the bill. And then we can come back in 6 months--in fact, our committee bill requires the new Secretary to come back in 6 months. OK. We went ahead. We adopted the Voinovich-Akaka bipartisan reform on civil service in our committee bill. But we did not give the President any of the waivers he asked for and other provisions of civil service. On the question of this extraordinary authority that Presidents have had since President Carter to remove collective bargaining rights, we set up essentially an appeals process to a Federal board, the FLRA, of which the President appoints two of the three members. That is the one the President made clear he believed would be a cut in his national security authority and said he would veto. We came to the floor in a spirit of compromise, with my full encouragement. Senator Nelson and Senator Breaux began to see if we could find some common ground with the White House and the folks on the other side of the aisle. And there was substantial movement. In fact, I think we have been quite flexible in that regard. We may disagree, but one thing I want to say is, at least as I interpret it, we have ended up with a compromise amendment which does not at all diminish the national security authority of this President or any future President if it is passed. With regard to civil service, it gives the President new authority to change civil service law. It asks that, as we have done quite successfully with the IRS--and it is done in the public sector all the time--the best way to get changes in work rules is to not shove them down the throats of workers; try to negotiate them. So this bill says: Try to negotiate them with your workers. And if that does not work, send it to the Federal Services Impasses Panel, which has seven members, all appointed by the current President. So it is not a hostile board. In regard to the collective bargaining rights, we say now--and there is no appeal to the board I mentioned before. The compromise says the President has to make his case, incidentally, not just job by job; the order is he simply has to claim that the mission and responsibilities of the agency or subdivision have materially changed, as Senator Breaux said, and the majority of the employees within the agency are involved in national security work. That is final. Incidentally, there has been one court case, as Senator Breaux said-- we are going to get it, look at it, and maybe enter it in the Record-- which said the substantive determination on a question of national security is not reviewable by a court.

Mr. LIEBERMAN

Mr. LIEBERMAN. Mr. President, the Senator from Texas has asked us to consider what is best for the security of the American people. What is best for the security of the American people is to quickly adopt legislation that creates a Department of Homeland Security to protect them, and not to maintain a stubborn insistence that before you are willing to do that, the President must have an up-or-down vote on his proposal. That is something on which the Republican House did not insist. They gave Members the opportunity to introduce amendments, including one just like this. I urge my colleagues, vote for cloture. Let's adopt this bill.

Mr. LIEBERMAN. Mr. President, I yield such time as the Senator from Nebraska requires.

Mr. LIEBERMAN. Mr. President, I yield myself up to 3\1/2\ minutes. One of my favorite expressions is: Only in America, this great country of ours. I was thinking, as we approach this debate on the motion to invoke cloture, that only in the Senate, the great deliberative body we are, would we find Members about to do what I fear they are going to do, which is to vote against a proposal that they themselves have made because they want to vote on it without anyone else having a right to amend it. That is where we are. We have had a good debate. We have the Gramm-Miller substitute amendment to the underlying Senate Governmental Affairs Committee proposal that created the Homeland Security Department. Senator Gramm and Senator Miller said their proposal and ours are 95 percent the same. We have a disagreement about how to protect homeland security workers in the new Department and still retain the authority of the President over national security. Senator Ben Nelson of Nebraska and Senator John Breaux of Louisiana, working together with Senator Lincoln Chafee of Rhode Island, have found common ground. They presented and crafted an amendment that gives a little bit of reassurance against arbitrary action to the Federal workers before they have their union rights, collective bargaining rights, taken away because the President determines those rights are in conflict with national security. It gives the President some new authority to reform the civil service system but encourages him to try to negotiate those changes with the unions. If that does not work out, then it is decided by a board, where the President appoints all the members. This achieves some due process and fairness for homeland security workers but does not diminish the final word of the President of the United States at all. In short, with all respect, I say to my colleagues who support Gramm- Miller but who are going to oppose the end of a filibuster of Gramm- Miller, they do not know how to accept a yes to the question they have asked. The Nelson-Chafee-Breaux amendment says yes to the question they have asked: How can we create a Department of Homeland Security, retain the authority of the President, and still protect some fairness and due process for homeland security workers? What they are asking for is an up-or-down vote on the Gramm-Miller proposal, the President's proposal, denying us, apparently--the majority of us, now 51--the right to vote on an amendment which, incidentally, is pretty much the exact same amendment Congresswoman Connie Morella, a Republican of the House, was allowed by the Republican leadership of the House to put on the President's proposal. We can at least offer the same courtesy and rights to three bipartisan Members of the Senate. I yield the floor.