Joseph Lieberman

Mr. LIEBERMAN

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

Mr. LIEBERMAN. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LIEBERMAN. Mr. President, I ask unanimous consent that the pending amendment of Senator Byrd be laid aside so I might offer another amendment.

Mr. LIEBERMAN

Mr. LIEBERMAN. Mr. President, I ask unanimous consent that Senator Reed of Rhode Island be recognized for up to 10 minutes to speak as in morning business; that when he has completed his remarks, a quorum call be entered, and that when the quorum call is ended, the Senator from Connecticut, as manager of the pending legislation, be recognized.

Mr. LIEBERMAN. I thank my friend. My answer would be, again, I have not seen the exact components of the substitute from the Senator from Texas, but as my staff has heard it described, it follows pretty closely after the House bill, which, again, if I were in the chair I would think are germane. I want to yield a few moments--as much time as he would like--to the distinguished Senator from Nevada.

Mr. LIEBERMAN. For a question.

Mr. LIEBERMAN. Mr. President, I wish to speak very briefly, and then I will yield. The Senator from Nevada has withdrawn his request to speak. Let me say a few words. My friend from Oklahoma has talked about his concern that the substitute that the Senator from Texas, Mr. Gramm, has fashioned would not be ruled germane. I don't know because I have not seen it. But, of course, there is another alternative here, which is the normal course. I refer back to our Governmental Affairs Committee's deliberations on the bill in which, after we put our mark down, Senator Thompson, as ranking member, offered several amendments going to powers of the President to reorganize, the latitude over appropriations, obviously much interest in civil service, collective bargaining questions, some dispute over the exact powers of division of intelligence in the new Department that all of us agree ought to be created, but we disagree on what powers it should have. Again, I am not the Parliamentarian, but picking up on what the Senator from West Virginia has said, it certainly would seem to me there would be ample basis for whomever the Presiding Officer is at the time to rule that the kinds of amendments that the Senator from Tennessee offered in committee--which put it in issue and give the Senate a choice of what I think are the remaining relatively small number of issues in controversy--would, in fact, be ruled germane. So that is the way to get this moving.

Mr. LIEBERMAN. Mr. President, I yield the Senator a minute of my time.

Mr. LIEBERMAN. Does the Senator wish unanimous consent for an additional moment?

Mr. LIEBERMAN. I ask my friend from Oklahoma--I have not had an opportunity given to me to look at the substitute that may be offered by the Senator from Texas--why would it be germane if parts of it don't relate to homeland security?

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

Mr. LIEBERMAN. The suggestion Senator Byrd raises is since neither side is using the time allocated, he has a statement he would like to make in the remaining time.

Mr. LIEBERMAN. I have no objection.

Mr. LIEBERMAN. Mr. President, I suggest the absence of a quorum, and I ask the time be equally divided.

Mr. LIEBERMAN. I suggest the absence of a quorum.

Mr. LIEBERMAN. Mr. President, I yield myself such time as I may consume. I rise to speak in favor of the cloture motion Senator Daschle has filed. It does seem to me that it is time to begin heading toward a conclusion of our deliberations on homeland security and to have a final vote as soon as we can. This cloture petition is a way to begin to do that. I have said before, and I will say it again, briefly, some of members on the Governmental Affairs Committee have been at this for almost a year now. In fact, a certain amount of activity began in Congress before that. Congressman Thornberry of Texas, a distinguished Member of the other body, introduced legislation early in 2001, months before September 11, to create a Department of Homeland Security. That was based on the work of the so-called Hart-Rudman Commission. Our committee was carrying out hearings on this matter, held one prescheduled on September 12 on the question of how to protect the American people from terrorist assaults on our cyber-systems, a point of vulnerability that we have to organize ourselves to protect against. We held 18 hearings in our committee related to homeland security and the creation of the Department. Our committee reported out a bill in May by a 9-to-7 vote, unfortunately, a partisan split on the committee at that point. President Bush endorsed the idea of a Homeland Security Department, and his proposed Department, most of the recommendations were quite similar--some exactly the same--as those contained in the bill that had come out of our committee in May on a partisan vote. We worked together with the White House and members of the committee. On July 24 and 25 of this year, we had two long, thoughtful, productive days of markup in our committee and reported out the amendment before the Senate as the underlying amendment creating a Department of Homeland Security. We came to this bill immediately after we returned after Labor Day. This is the third week. A lot of the days have not been full days. We have had the two-tiered system with appropriations matters in the morning and homeland security in the afternoon. There has been a lot of debate and I hope a lot of consideration of the merits and demerits of the various ideas. Some of our colleagues on the other side of the aisle have begun to complain about the pace of action; that the longer we wait to adopt a homeland security measure, the longer it will take to set it up, the more the American people will be exposed to danger from the terrorists who are clearly out there. We see it every day in the paper. We know it ourselves from briefings we have had, both open and classified. The enemy is there and not just at our door, but as we see from the arrests that occurred in Lackawanna, NY, within the last week, they are inside the house. It is time to move forward on the 90 percent of ideas that are pretty much the same. We have some parts on which we are in disagreement. Senator Gramm and the occupant of the chair, I gather, have a substitute amendment. We have various amendments to try to alter the underlying amendment. Let's get on with it. I must say, I am puzzled, having heard the Senator from Texas speak a few moments ago, how those who have claimed we are not moving fast enough toward adopting a Department of Homeland Security bill because of the dangers involved are now going to vote against this cloture petition, which, of course, as all the Members know, would essentially narrow the debate, begin to move us toward germane amendments, and hopefully say to our colleagues and to our country that we are getting close to that time when we have to act. I am puzzled why people who have complained about the pace of action on the Department of Homeland Security bill would vote against this cloture motion, against a vote on cloture. I hope they give it a second thought. Not only is there a critical urgency that we move forward to adopt this bill, get it to a conference committee with the House, get it to the President's desk, have it adopted, begin the work of creating the Department, but, Lord knows, we have a lot of other important work to do in this Senate and in the Congress generally, with appropriations bills, with matters related to potential military action against Iraq, matters related to the economy--particularly the retirement security of the American people, reactions to the corporate scandals that have occurred about which there is broad bipartisan interest in having us do something. I think the time is now. I think each of us ought to vote for cloture and then let's have a system for having a finite number of amendments come before the Chamber. Let's give people the opportunity to make this bill as it came out of the committee better than it is. I think we have done a pretty good job. I described it yesterday, I believe, here on the floor as obviously not perfect but the first best effort toward taking the disorganization that exists now, that is dangerous, and organizing not just our Federal Government but our national strength to meet the terrorist threat. I just came from a meeting with some families of victims of September 11. I have met with them several times before. There were about 120 who we lost, who were residents of Connecticut--a grievous loss. From the first time I met with them, they asked the question that echoes in my mind and my heart, which is, How could this have happened? And the subquestion is, Could this have been prevented so I would not have lost a spouse, a child, a parent, a friend? This Department proposal is an answer to that question--not fully the answer to the question of how it could have happened, but surely an answer to the plea that we take action to make sure nothing such as September 11 ever happens again. It is for that reason I support the cloture motion and hope my colleagues, on a bipartisan basis, will vote for it so we may then go forward on a bipartisan basis to adopt a bill that will, as soon as possible, create a Department of Homeland Security. I yield the floor.

Mr. LIEBERMAN. Madam President, I yield 5 minutes to the Senator from California for that purpose.

Mr. LIEBERMAN. Yes. Does the Senator wish to speak on the cloture motion?

Mr. LIEBERMAN. I am happy to yield time to the Senator as he needs.

Mr. LIEBERMAN. Mr. President, how much time is remaining?

Mr. LIEBERMAN. Senator Thompson asked me to yield him up to a minute, and then I ask that Senator Akaka, a member of our committee, be allowed to close the debate with the remainder of our time.

Mr. LIEBERMAN

Mr. LIEBERMAN. I thank the Senator from West Virginia. I would like to complete my statement. Then I will be glad to respond to any comments or questions he has. Let me make three general points about what troubles me about the amendment. First, the amendment destroys what might be called the holistic design of a new Department. By that I mean the whole will be greater than the sum of its parts. Indeed, since the very beginning, the entire purpose of formulating this Department has been to create a cohesive and unified organization in which all the pieces fit together tightly with all the other pieces. We have strived to bring to our legislation a global understanding of the capabilities our Government has and the capabilities it currently lacks. We have thought carefully about the interrelationships of the different agencies and directorates that will make up the Department. The result, I am confident, is a Department in which the six constituent divisions strengthen one another such that the whole is greater than the sum of the parts. Splitting this Department into a number of separate pieces that will be created in organizational isolation from each other will undercut the wide angle focus that is necessary for us to best meet the terrorist threat. We will revert to essentially creating a number of different divisions that are linked to one another in name but not necessarily in function. In the process, I fear the Byrd amendment will threaten one of the core purposes of a single Department of Homeland Security under a unified chain of command; that is, namely, to leverage the benefits of bringing together these 28 different agencies and programs in a synergy, in a way that the whole is greater than the sum of the parts. Pulling the pieces apart and rebuilding them will lose that understanding of our capabilities. Just think about the pieces of the new Department that will need to work together every day. I cite the intelligence directorate again. It is going to communicate with the directorate on critical infrastructure protection and on border transportation security, and it is going to need to develop threat assessment and threat dissemination systems and protocols. The directorate on science and technology will need to learn from the directorate on emergency preparedness and response precisely what technologies are required at the Federal and local level, and then we will have to develop an action plan to deploy those technologies. Every directorate in the organization will have to draw on the science and technology directorate's expertise for critical analysis and decisionmaking regarding scientific or technical issues. This Department should work like a carefully crafted machine with interlocking gears. If we conceive of it as six separate gears turning in isolation from one another, we are going to drastically diminish its effectiveness. I fear the process that the Byrd amendment would set up will do just that. Second, I know there was a concern expressed on the floor and off the floor that the committee's proposal for a new Department of Homeland Security fails to put in place adequate checks and balances on executive authority. I disagree. Those checks and balances and the desirability of them in our system of government were very much in our mind as we proceeded with this legislation. In fact, we gained great insight and assistance from Members of the Senate as we crafted this legislation, particularly the senior Senators from West Virginia and Alaska who brought not only their considerable experience but their love for the Senate and devotion to the concept of checks and balances, which assisted us in crafting our amendment. So we have gone to great lengths to ensure that the Congress will remain actively engaged in the life of this Department--not just in the traditional way in which Congress, in some senses, always has the last word, which is through the appropriations process, but through the transition process as this legislation becomes law. We have very important work to do with the executive branch and the transition process of this new Department. We have to make sure the reorganization is proceeding apace. We have to make further changes in law, if and when such changes are needed. We have to finance the new Department, consistent with its needs, as determined in the first instance by the Appropriations Committees of both bodies and, of course, by the membership of both bodies. And we have to make sure that critical, nonhomeland security functions of the constituent agencies don't fall through the bureaucratic cracks. That is why we have specifically required that the administration come back to Congress at least every 6 months during the reorganization process to update us and the American people on the progress being made and, if necessary, to request that we make additional amendments and improvements. The committee members are well aware of the complexity and the enormity of what we are proposing. So these required reports during the reorganization process should give Congress an opportunity-- our committee first and then Congress--to assess the progress and make necessary adjustments. The important point here is to get started. No one--least of all me-- thinks this is going to be a perfect proposal. It will be a work in progress. To make it progress as rapidly and perfectly as we want, we are going to have to work together--Executive and Congress--in making that so. Our interest in guaranteeing proactive congressional oversight is spelled out in even more detail in our proposal. Contrary to the President's proposal, which originally sought to give the executive branch unchecked authority to reorganize the constituent agencies within the new Department and unprecedented power to move between 3 and 5 percent of funds appropriated to the constituent agencies of this Department, we have taken a very different path and rejected those requests from the administration. We will insist on the accountability of the appropriations process. We understand the Constitution gives Congress--and only Congress--the responsibility to appropriate the expenditure of the public's money. So we have specifically rejected the administration's calls for broad, unchecked power to move public money around without the consent of Congress. We have said that while the administration can reorganize agencies within the new Department to the extent that it does not conflict with existing law, if the administration wants to change existing law, contrary to its proposal originally, we require it to come back to us for approval to do that. Congress cannot delegate to the Executive the authority to obviate statutes that are on our books without the consent of Congress. That, of course, is an affirmation of the importance of ongoing congressional involvement in an approval of the reorganization process. I know Senator Byrd is concerned about the speed with which this is moving forward. I believe this is not moving forward near rapidly enough. I know he has a historic and proud concern about Congress yielding too much authority to the executive branch, and I share that concern. My strong reassurance to him, and to the other Members of the Senate, is that the Senate Governmental Affairs Committee proposal does what Congress has done since its creation, since its beginning, which is to legislate, create a new Department, but not to give that Department unchecked authority to go forward but to require it to come back for appropriations and require it to live within the law. And if it decides, as it goes forward, that it needs to alter the law, then, of course, it must come back to us and not be allowed to waive laws and repeal them on its own, as it originally asked to do. Congress will remain, under our proposal--a careful, measured proposal--an active and aggressive board of directors overseeing this merger every step of the way. Third, this amendment is based on the faulty assumption that we have written our legislation hastily, without due consideration of exactly how the Department ought to be structured. As I said at the outset, the fact is we have been working for nearly a year and, in some cases more than a year, to determine what this Department should look like, and to do everything humanly possible to prevent another September 11-type attack. We have studied these issues exhaustively. We have considered the implications rigorously, and we have written this legislation carefully. Now, any Member of the Senate has the right, of course, to come out and say that a given part of our proposal is not quite right and not what it should be, and that is what the amendment process is all about. Of course, there have been many amendments filed that go exactly to that point. What Senator Byrd's amendment does is to remove the fruits--all the fruits pretty much--from the tree, except the very few at the top, that we have nourished and worked so hard to cultivate over this year. (Mrs. CLINTON assumed the Chair.)

Mr. LIEBERMAN. No. Titles II and III, incidentally, are in the White House office.

Mr. LIEBERMAN. Mr. President, earlier I spoke at some length expressing my opposition to the amendment introduced by Senator Byrd. Members have come to the floor and have spoken not so much on the amendment offered by the Senator from West Virginia as they have on another question which engages some considerable debate among Members of the Senate, and that is the question of civil service and management flexibility. I want to respond to the statements of the Senator from Texas and the Senator from Arizona and, to some extent, my friend, the Senator from Tennessee. I have been disturbed and disappointed by the criticisms of the legislation that came out of our Governmental Affairs Committee, which are based on the claim that it fails to give the President and the new Secretary of Homeland Security the authority they need to manage an effective Department. That is a serious charge and one that I respectfully say is simply not right. Those who have followed the development of this proposal through our committee know my intention since the beginning has, in fact, been the opposite, which is to give the President and the Secretary all the power they need to build a strong, efficient, and effective Department; in fact, more power to do so than this President wanted for some period of months. Ever since last October, along with other Members of the Senate, I have been asking for a Cabinet Department with authority and accountability precisely because I was convinced the President's initial creation of an Office of Homeland Security, headed by Governor Ridge, without statutory authority or budget authority, was too weak to get the job done. It seems ironic to me now that the President, who for months resisted the idea of a Department of Homeland Security and said that the Office of Homeland Security, headed by a coordinator, was all we needed to safeguard the Nation, now says that the Department we would create gives him inadequate authority. I think this debate is really a detour from what should be our urgent common cause, and that is the creation of a new Department that will protect the security of the American people, about which we agree on the majority of its components. This is a debate that is being conducted in a kind of inside-the- beltway vocabulary and not in good old, plain spoken English. On civil service rights, union rights, appropriations, and transition authority, the President claims he deserves flexibility and that our legislation denies him flexibility by threatening to handcuff him and the Secretary from exercising their rightful authority, but the President's pleas for flexibility are, in fact, a request, in my view, for broad and unchecked authority in this regard. If we in the Congress do not provide that broad and unchecked and, in my opinion, often unprecedented authority to this President and Secretary, we are being branded as inflexible. Congress has a duty to the American people in this case to write the civil service laws. If we in the Senate turn over all that responsibility and authority to the executive branch, simply because the President urged us to do so, I suppose one could say it might streamline things somewhat but we would be very much like a board of directors yielding all authority to the management--and we have seen in recent times what can happen when boards of directors do that. President Bush and Governor Ridge suggest our legislation will create an ineffective Department of Homeland Security because we decided not to give them the authority they requested in the President's bill to unilaterally waive and rewrite civil service law. That is what they want. Extraordinary new powers. And they claim that without that authority this Department is somehow not even worth creating, and they are threatening a veto if they do not get exactly their way on these provisions. That, in my opinion, is a distortion of the facts and a confusion of priorities. The fact is, the Department of Homeland Security our legislation envisions will be a modern, performance-driven Federal agency, one that the Secretary and the President will have extensive authority to manage. The committee-endorsed bill contains flexible civil service provisions, including a broad, bipartisan civil service reform package, provisions that strengthen the administration's hand when it comes to managing the new Department. But we have incorporated these reforms responsibly, not haphazardly, preserving the central idea of the civil service system, which is accountability in the workplace. That is at the core of the civil service system that was codified in law more than 20 years ago. It would preserve the appropriate authority in the legislature to write those laws. I ask my colleagues to look carefully and honestly at what the civil service system is, what kinds of reforms we provide in our legislation, and what the amendments being discussed to alter the civil service and collective bargaining rights of Federal employees, as protected in our committee's work, would do. The civil service system, first, is often derided, but rather than taking the road of caricature, let's try to understand what it does and why it was developed. Once upon a time in government the rule used to be to the victor goes the spoils--all the spoils. Most of us know about the age of the spoils system officially ushered in by Andrew Jackson, in which elected officials used the Federal payroll to reward their friends and supporters who, not surprisingly, were not always the most prepared people to fulfill those particular functions. That may have been good for the politicians of their day, but it wasn't good for the American people because it produced a government with minimal institutional memory, minimal incentive for meritorious employees to work hard, to rise through the ranks, and with both of those, minimal public trust. The civil service system changed that, moving the executive branch from a spoil system to a merit system with limits on favoritism and cronyism and to a transparent framework for attracting and retaining the most talented public servants. That system has evolved over time, but at the core it is still designed to shield most public servants and the public they serve--us--from the forces of partisanship and favoritism and special interest influence that can erode the merit- based workplace in any administration. When the opponents of this legislation deride the civil service system, these are the principles they deride. When they mock the system, these are the values they mock. Today, the top echelons of Departments are subject to political appointment, as they should be, to allow a President to select the loyal agency leadership he needs and deserves. But the bulk of public employees are protected against the whims of changing political climates. We now understand that effective Departments are made up of both types of employees, working closely together and depending on one another. Career civil servants who develop expertise, know the ins and outs of Government, and carry on the vital work of our Government from one administration to the next, on the one hand; and political appointees who lead the Departments, set high-level policy and advance the agenda of the President's administration. I will not stand here and defend every phase or clause of the civil service system, just as I doubt anyone would stand and defend every clause of the Tax Code. At times the system has been too slow or too rigid to adapt to the changing workplace, to recognize and reward excellence and to root out failure. Some of the flaws have been fixed over time. Others have not and remain challenges. I strongly support the system's fundamental principle which is to provide a check on the politicalization and patronage to which Government agencies will otherwise be susceptible in any administration. Civil service laws not only assert that personnel decisions should be based on considerations of merit, but they provide procedures and remedies if those principles are violated. Think for a moment what it could mean to lose the public accountability assured by the civil service system. Talented senior managers, who dedicated their careers to public service, could be pushed out and replaced with patronage appointees. Potential whistleblowers at all levels of the organization would know they have little or no real protection against retaliation. Remember, we all praised Colleen Rowley when, in the courageous memo, she exposed the FBI's weaknesses so we could repair them. Those who would dismantle the civil service system make it more likely that the Colleen Rowleys of tomorrow and the Department of Homeland Security would be silenced, not heard. There was an actual case following exactly that pattern that occurred with a Federal employee who became a whistleblower after September 11, crying out that there was inadequate protection on our northern border. In fact, he was suspended by his Department. His union came to his defense and he was given back his job because a suspension for blowing a whistle in pursuit of the public interest was irrational, unfair. Employees' union representatives, if allowed at all, could be stripped of much of their ability to protect rank-and-file workers against abusive or self-protective political appointees. Veterans and minorities under the proposals made by the President for so-called management flexibility can see their statutory rights ignored or left with insufficient remedies. That is why our committee did not just deride the system. We tried to fix it, and I think made some real progress. Rather than just handing the President the authority to eliminate whole chunks of existing civil service protections, we developed the details for the key reforms we need to make this new Department work well. I believe existing laws also give the President and Secretary far more authority and flexibility to run an efficient, effective, and performance-based Department of Homeland Security than the President and Governor Ridge have acknowledged. The administration says that the new Department cannot function without ripping up the civil service system and starting from scratch. That is a myth. The General Accounting Office reported a few years ago describing the civil service law as codified in title 5 of the United States Code: We found that, over the years, Title 5 has evolved to give federal agencies more flexibility than they once had--and often, more than they realize--to tailor their personnel approaches to their missions and needs. In a similar vein, last year the Bush administration's own Office of Personnel Management issued a handbook entitled ``Human Resources Flexibilities and Authorities in the Federal Government.'' That handbook painted a much different picture of the civil service law than we are now hearing from the administration: We have designed this handbook to communicate with you about the myriad human resources (HR) flexibilities and authorities currently available and how they can be used to manage your human capital challenges. We serve as a resource for you as you use existing HR flexibilities to strategically align human resources management systems with your mission. Through this handbook, you may be surprised to discover how flexible Title 5 is in meeting your organizational needs. I respectfully suggest to the White House that perhaps, if they looked at this handbook put out by their own Office of Personnel Management, they, to use the words of the handbook, would be: . . . surprised to discover how flexible title 5 is in meeting your organizational needs. If we in Congress were to believe the administration's recent claims that the civil service system is a hidebound anachronism, we, too, might be surprised to discover how flexible title 5 actually is. There is substantial flexibility in existing law, as I have said. But to rise to the challenge of the war against terrorism, we wanted our legislation to go further. So we have incorporated sensible consensus reforms to improve the way Government manages personnel. We have updated the civil service system to give the Secretary of Homeland Security and the President all the tools they could conceivably need to build the most effective Department of Homeland Security without compromising the underlying values of the civil service system. In fact, if our legislation, as currently before the Senate from our Governmental Affairs Committee, is adopted, the Secretary of Homeland Security will literally have more management flexibility than any Secretary has today. Incidentally, I want to give special credit to Senators Voinovich and Akaka, who worked together over a long period of time to develop the reforms in our bill. We have adopted these significant and governmentwide improvements in the civil service system. To support research and development, we also authorized the Secretary to use innovative techniques to hire personnel in the new Science and Technology Directorate, for instance. Taken together, this package gives the Secretary the ability to speed up staffing of new employees, to recruit and retain top science and technology talent, to reshape the Federal workforce, to procure temporary services outside the civil service system when there is a critical need, to provide more effective bonuses for exemplary service, and to make other valuable changes to help the new Department attract, maintain, and motivate the best employees. Senator Voinovich has been a tireless advocate on behalf of a principle and a reality that does not get much attention around here but is critically important to the functioning of the Federal Government and that, again, is described in a Washington beltway term, ``human capital management.'' The point is, how do we get the best people to come to work for the Federal Government and then get them to have the widest latitude for their talents and encouragement to continue in Federal service? Part of that clearly is the protections offered by the civil service system. I cannot emphasize enough that the provisions contained in our legislation have been hammered out over time with many contentious issues being carefully and, I might say, cooperatively resolved in a bipartisan fashion. We all know how detailed this can be and how much care rewriting the law demands. The reforms we have incorporated, the Voinovich-Akaka reforms, reflect collaboration, consensus building, and the input of countless experts. I want to say particularly that Senator Akaka, our distinguished colleague from Hawaii who is chair of the Governmental Affairs Subcommittee on International Security Proliferation and Federal Services, has now been working hard for 3 full years, with Senator Voinovich of Ohio and others, to adapt the civil service system to the demands of the modern workforce and contemporary Government. They are unsung heroes in bringing human capital management into the 21st century. Out of their collaboration has emerged this bipartisan package of bold but sensible civil service reforms that are incorporated in the bill that came out of the Governmental Affairs Committee. Now, on the other hand, the administration wants to throw everything out. Our bill has done, I think, the difficult work--but the work that Congress has an obligation to do--of separating the good from the bad, discarding the chaff and keeping the wheat. In fact, our reforms do more to constructively change what is commonly viewed as one of the most inflexible areas of civil service law--namely, the ability to swiftly hire top-flight talent--than any other proposal I have seen, and certainly any other that is on the table. The President would wreak havoc on the current framework and put nothing in its place. I hope critics of the approach the committee has taken will look carefully at these flexibilities I have described, which are substantial indeed. Let me elaborate just a bit more on what some of those authorities are. First, we give the administration the power to put the right people in the right place at the right time. Existing law allows the Secretary to move employees around in the Department, either by permanent reassignment or temporary detail. I would guess that most Members do not appreciate that. Existing law allows the Secretary to move employees around the Department, either by permanent reassignment or temporary detail. Collective bargaining agreements may not affect the authority of a manager to assign employees and to assign work. Again, in all the discussion about collective bargaining and national security, this is a fact that is being overlooked. It reminds us how limited are collective bargaining rights of Federal employees. They can't strike--that is prohibited by law. But collective bargaining agreements actually may not deal with the authority of a manager to assign employees and to assign work. Any employee who refuses to be reassigned can be fired, and existing law allows managers to offer recruitment bonuses, special salary rates, and even high critical pay levels to attract high-quality employees. New provisions in our legislation significantly simplify hiring so that employees can be hired with little or no red tape. A government- wide amendment offered by the aforementioned Senators Voinovich and Akaka allows for the direct appointment of candidates to positions that have been publicly noticed when it has been determined by OPM that there is a severe shortage of candidates and a critical hiring need. A second Voinovich-Akaka amendment will allow agencies to select employees without applying the rule of three, under which agencies may not look beyond the three top-scoring candidates for a competitive position. To accommodate special needs of the Department, the Secretary may procure personnel services whenever necessary, due to an urgent homeland security need, for periods of not more than a year, without regard to the usual pay caps. Let me go back. Our legislation says to the Secretary of the new Department of Homeland Security: You can actually enter into a contract with people for services for not more than a year without regard to the usual pay caps when you say there is an urgent homeland security need to do that. Finally, in this regard, to support research and development, the Secretary, as I mentioned, is authorized to use innovative techniques to recruit top science and technology talent. In fact, the bipartisan package of flexibilities in our legislation offers more in the area of hiring than does even the bill that passed the House, which does not include the direct hire authority in cases of critical need. Second, the Governmental Affairs Committee legislation amendment before the Senate gives the Secretary new authority to reward good performance so we can create a Department that encourages excellence among all its employees. Starting under existing law, the civil service law provides managers numerous avenues for providing incentives and rewards for good performance. Managers can decide, for instance, whether employees have earned raises known as step increases based on performance, and can award further ``quality step increases'' for exceptional performance. Managers can also grant incentive awards for overall high performance or for exceptional work on a particular assignment. Managers can pay special bonuses to help with retention or relocation of particularly desirable employees. Contrary to what some in the Administration have been saying, civil service rules impose no cumbersome process for managers to gain approval of a pay raise. President Bush and the new Secretary will be free to fashion as streamlined a process for giving merit raises as they can. The bipartisan Voinovich/Akaka amendments included in our legislation strengthen performance bonuses for senior managers, by revising outdated rules that had required that bonuses for senior employees be spread over two years. Finally, it is critical to recognize that under existing law, the administration has the power it needs to discipline and remove poor performers. Under civil service law, during the first year of employment, a Federal worker may be fired for virtually any reason without notice. Following the one-year probationary period, under civil service statutes, an agency must grant the employee a reasonable time to improve performance, after which the agency owes the employee 30 days' notice of a decision to demote or fire. And contrary to stereotype, outside appeals are handled after an employee is off the payroll. If a manager is sufficiently concerned about an employee's poor performance or misconduct, the employee can be pulled from duty immediately, without hesitation or red tape. If necessary for national security, the employee may be suspended without pay immediately. After investigation and review, if necessary, the employee can then be fired without appeal. The President can authorize any agency head to suspend and fire where necessary for national security, and the President is free to give this power to the new Secretary of Homeland Security. The allegations which have been made on the floor that we will limit the powers of the President regarding national security just do not take into consideration this provision in the law. The President can authorize any agency head to suspend and fire where necessary for national security immediately and without pay. I have seen some opponents of our approach contend that under our legislation, incompetent, irresponsible, or even intoxicated employees couldn't be removed from duty. This is simply wrong. And I regret that this myth is being stated as fact occasionally by one or another representative of the administration. The truth is, under current law, such an employee can be removed from duty immediately, without hesitation or red tape. And the employee can be taken immediately off the payroll if the Secretary determines that he or she might endanger national security. But that is not all. We understand the Secretary may need more authority down the road. That is why we explicitly leave the door open for the executive branch to get more power, as needed--because neither we, nor, I believe, the administration, yet knows what the experience of assembling this big new Department will teach its managers about the specific modifications to the Department's personnel system that may prove necessary. We want to give the Congress and the administration the opportunity to tailor additional authorities and flexibilities to the specific circumstances we face. And they are free to come back and make that case to us. During the initial 18-month startup period for the new Department, our legislation specifically requires the Secretary to submit to Congress semi-annual legislative recommendations that will help integrate the disparate personnel systems in the new Department and will provide any further personnel authority that is necessary to meet the needs of the new Department. All we ask is that these requests are based on some experience, not on ideology or assumption. We want them to be specific, not hopelessly broad. And we want the process to respect the proper role of Congress to consider the proposals and write that law. It is not appropriate for Congress--it has a familiar ring to it, I say to Senator Byrd--to write a blank check for a new Department regarding the civil service law allowing them to disregard that law--no more appropriate than it would be for us to write a blank check for it to give a new Department blanket exemption, for instance, from environmental law, civil rights law, or protection of the rights of the disabled. Rather, what we should do--and what we do do in our bill--is to provide a swift and acceptable mechanism to provide more authorities if and when the administration makes the case that they need them. In developing the provisions of our bill that invite the Secretary to come back to Congress with requests for further personnel flexibility if he deems it necessary, our committee was influenced by my experience working with the Comptroller General when he asked a couple of years ago for additional personnel authority at GAO. He advised the Governmental Affairs Committee that the legislative flexibilities he received might not be appropriate for other Federal agencies, but that the process he and Congress undertook to justify that legislation would be appropriate. I would like to read an excerpt from Mr. Walker's testimony on that subject: Congress can play a defining role in determining the scope and appropriateness of additional human capital flexibilities agencies may seek through legislation. For agencies that request legislative exceptions from current civil service constraints, Congress can require that they make a sound business case based on rational and fact-based analyses of their needs, the constraints under which they presently operate, and the flexibilities available to them. For example, before we submitted human capital legislative proposals for GAO last year, we applied the due diligence needed not only to identify in our own minds the flexibilities we need to better manage our human capital, but also to give Congress a clear indication of our needs, our rationale, and the steps we were committed to taking in order to maximize the benefits while managing the risks. The process we followed included a thorough analysis of our human capital needs and flexibilities, clear standards of implementation, and multiple opportunities for employee involvement and feedback. GAO's advice on this subject was even clearer in another submission to the committee, which said, ``agencies should be required to prepare a business case and take steps to address their challenges within existing law before being granted any additional legislative flexibility.'' In other words, Comptroller General Walker laid out the case for what reforms he needed. He asked for specific authorities--not for a blanket exemption. We considered his request, and we gave him what he wanted. That is the way it ought to work. That is the way our committee's proposal regarding civil service would have it work. Some of my colleagues have claimed that in our bill, we gave less personnel flexibility and authority to the Secretary of Homeland Security than we in Congress gave to the heads of the FAA, the IRS, and the TSA. That is just wrong. It is not true that Congress simply granted personnel flexibility to the heads of those agencies. To the contrary, the personnel flexibilities that Congress provided for those agencies is shared through a collective bargaining process between agency managers and the Federal employee unions at those agencies. And in the best companies in our country today, following modern management techniques, the old labor-management divisions have ended. People are working together in a cooperative fashion. I visited an automobile parts company in Ypsilanti, MI, a couple of years ago. There are remarkable changes. The workers on the floor elect the foreman for a set period of time. They can reelect him or not. The executives moved out of their offices and turned their office space into a fitness center for all employees. Management moved their desks right out on the floor where they are working together. That is the standard for modern management practice. That is what we adopted for the IRS. For example, we granted several authorities that can be applied to unionized employees. There is real management flexibility--where there is a written agreement between the union and the IRS. I have heard references from some of our colleagues who say they are upset about our civil service provisions which basically protect existing law and ask for more reforms. They have cited the IRS as an example of what good can be done when an agency is given authority. But, again, we gave the IRS authority to carry out management flexibilities with the written agreement of their employees' union, and it has worked. At the FAA, for instance, agency managers must bargain with Federal employee unions over wages, and also must negotiate with the unions in developing and making any changes to the agency's personnel management system. So in some ways the IRS and the FAA follow much more of a private sector model today, which is very progressive, with lessening of civil service controls in certain areas, and with a corresponding increase of the role of unions and collective bargaining in establishing the terms and conditions of employment. It is true that our legislation does not in fact go down that road, but of course neither does the administration's proposal for the Department of Homeland Security. Some of the proposals I have seen, from the White House and elsewhere, including from colleagues in the Senate, would empower the Secretary to cut back on the rights and roles that Federal employees and their unions would have at this new Department. I have not seen a proposal from the administration for the Department that would replace civil service protections with an enhanced statutory role for collective bargaining and the unions. So I ask, why do administration supporters, on the floor in this debate, keep referring to the IRS and FAA precedents as though they were advocating anything like them now? If they were really advocating something like them, I think we might have the basis of a bipartisan agreement. Let's give the Secretary of the Department of Homeland Security broad authority to enact further civil service reforms with the written agreement of the unions representing his or her employees. It has worked at the IRS and the FAA, and it might well work at the Department of Homeland Security. As I said, President Bush does not seek to seriously reform the civil service system or make a solid business case for any new authorities. Instead, he really seeks to rip out big chunks of civil service law and to push that change through in the context of this urgent common cause of creating a new Department of Homeland Security. Though the House, in its bill, has done a bit more homework, it still fails the test. The House bill states that several fundamental civil service provisions will apply to the new Department. Those include requirements to provide a preference in hiring and retention of veterans, which the President's proposal would eliminate; the protection of whistleblowers, which the President's proposal would eliminate; it prohibits nepotism, favoritism, and other forms of discrimination, which the President's proposal would eliminate; and it protects the right to unionize, which the President's proposal would also eliminate. However, almost all of these rights are provided in name only in the House bill, unfortunately. In major areas, the House bill would then turn over, again, a blank check to this administration to waive or rewrite civil service protections and procedures, with the administration having given us no indication of how they will use this extraordinary power. Second, the House bill states that employees would be able to join unions, but then allows the administration to unilaterally rewrite all the statutory rules of collective bargaining that give unionization whatever significance it has under existing Federal law. Third, the House bill would also turn over power to the administration to rewrite other central elements of the civil service system, including performance appraisal, discipline, and job classification and pay. These aspects of civil service provide for fairness across Government, avoid destructive bidding wars among agencies, and provide employees protection, most importantly, against unfair, arbitrary, or discriminatory decisions. The House bill essentially throws out all of those. Finally, under the House bill, as the proposed new rules are developed for the Department, the bill relegates union representatives to the role of receiving notice and making recommendations for the Secretary's consideration. This is far more constrained than the traditional function of unions, limited as they are under Federal law, which is to bargain over matters where management has discretion. When Congress enacted legislation, again, allowing the FAA and IRS to develop alternative personnel rules, we specified that the unions would have a place at the bargaining table regarding those rules. That is fair, that is progressive, that is productive, and that is modern. The House provision limiting the role of employees and their representatives is unfair and unacceptable. Finally, the choice before us on civil service is simple: Improve it or remove it. Make it better or rip it up. While our legislation lives up, in my view, to Congress's responsibility to improve the civil service system, the alternatives proposed by the administration and in the House bill don't meet that responsibility. They, to use a word familiar to us during this season, punt. They leave it all to the administration. They would have Congress leave it all to the administration to rewrite the law. That would be problematic in just about any realm, but it is particularly problematic here, as the administration represents management, one of the parties directly affected by the law. Powers are strictly separated in our constitutional system for a reason. I have not hesitated to make clear that I believe the President, in his role as Commander in Chief, for instance, should have substantial powers to determine when and how we take military action to protect national security. But rewriting laws is the job of Congress, the responsibility of Congress. Indeed, the separation of powers is especially important in the case of civil service law, again, for the reason I have stated: Because the administration is the management, it is one of the two parties directly affected by the law. Congress, in effect, must play the role of a fair and honest mediator, broker, and legislator. Only Congress should change the law. So we have two choices here: To embrace significant reforms, as included in our bill, and leave additional changes that may seem to be necessary, after some experience, for consideration in the future, based on a solid business case made by the Secretary is one choice. On the other hand, we can simply abdicate and give the administration the right to rewrite the current civil service system by administrative fiat. That, of course, is an easy choice for me. Also, I would state, in response to the underlying amendment the Senator from West Virginia has proposed, what we have done here in civil service is very much similar to what we have done in most of the rest of the bill; that is, we have tried to dispatch Congress's responsibility to write the law, not to give the administration a blank check in any area, to respect the executive branch and the need for authority in the executive branch, but to understand that constitutionally we have the responsibility to legislate. That is exactly what we have done in a progressive fashion with regard to the civil service laws for our Federal workers. I had not intended to speak on this this afternoon, but those of our colleagues who have come to speak not on the Byrd amendment but against the civil service provisions in the committee's proposal required a response on this day. I thank the Chair and yield the floor. I suggest the absence of a quorum.