Fred Thompson

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I am pleased that the essentials of S. 2176 have been incorporated into the Omnibus Appropriations bill, H.R. 4328. I appreciate the work of my colleagues, Senator Byrd in particular, in seeing that this bill becomes law. Mr. President, I wish to address the changes that have been made to S. 2176 since it was reported out of the Governmental Affairs Committee. The legislative history of the bill is largely described in the Committee report, S. Rep. 105-250. However, this is the opportunity to discuss the subsequent changes made in the bill. The term ``first assistant to the office'' is incorporated into 5 U.S.C. Sec. 3345(a)(1), rather than ``first assistant to the officer.'' This change is made to ``depersonalize'' the first assistant. Questions have arisen concerning who might be the vacant officer's first assistant if the acting officer dies or if the acting officer resigns while a permanent nomination is pending. The term ``first assistant to the officer'' has been part of the Vacancies Act since 1868, however, and the change in wording is not intended to alter case law on the meaning of the term ``first assistant.'' A third category of ``acting officer'' is now permitted apart from first assistants and presidentially designated persons who have already received Senate-confirmation to hold another office. The President (and only the President) may also direct an officer or employee of the executive agency in which the vacancy arises to be the acting officer if that officer or employee served in that agency for 90 days preceding the vacancy caused by the departure of the prior Senate-confirmed officer and, the officer or employee has been paid at a rate at least equal to a GS-15. Concerns had been raised that, particularly early in a presidential administration, there will sometimes be vacancies in first assistant positions, and that there will not be a large number of Senate-confirmed officers in the government. In addition, concerns were raised about designating too many Senate-confirmed persons from other offices to serve as acting officers in additional positions. The 180 day period in Sec. 3345(b) governing the length of service prior to the onset of the vacancy that the first assistant must satisfy to be eligible to serve as the acting officer is reduced to 90 days. Under Sec. 3345(b)(1), the revised reference to Sec. 3345(a)(1) means that this subsection applies only when the acting officer is the first assistant, and not when the acting officer is designated by the President pursuant to Sec. Sec. 3345(a)(2) or 3345(a)(3). The 90 day service requirement is inapplicable to a first assistant who has already received Senate confirmation to serve in that position. New Sec. 3345(c) was added to address the special case of an executive department (not executive agency) officer who serves not at the pleasure of the President, but under a fixed term, and without a holdover provision that governs acting service in that office following expiration of the fixed term. In that situation, without passing judgment on the constitutionality of fixed term appointees within executive departments, if the person whose term expires is renominated without a break in service, that already Senate-confirmed officer may continue to serve in the position subject to the time limits contained in Sec. 3346 until the Senate confirms or rejects that person's renomination, notwithstanding the adjournment of the Senate sine die. The subsection does not apply until the incumbent officeholder is renominated, or when a person other than the previously appointed officeholder is nominated. In Sec. 3346(a), an exception is added for ``sickness,'' a narrower category than ``unable to perform the functions and duties of the office.'' If the Senate-confirmed officer cannot serve because he is sick for more than 210 days, the acting officer may continue to serve during the sickness, and no nominee need be submitted to the Senate to avoid the vacant office provisions of Sec. 3348. The office is not vacant if the Senate-confirmed officer is sick, and he may reclaim the office even after 210 days if he is no longer ill. However, the 210 day limit will apply if the Senate-confirmed officer is unable to perform the functions and duties of the office for other reasons. For instance, the Doolin court stated that the current language of the Vacancies Act does not apply when the officer is fired, and for similar reasons, it might not apply when the officer is in jail if he does not resign. To make the law cover all situations when the officer cannot perform his duties, the ``unable to perform the functions and duties of the office'' language was selected. Sickness is the only exception to the 210 day limit, since in other circumstances when the officer is unable to perform the functions and duties of the office, there is no reason to allow the officer to reclaim his duties sometime after 210 days. The 150 day period adopted in the Governmental Affairs Committee was lengthened to 210 days in each place it appeared in Sec. 3346 as an accommodation to the Administration in light of the increased time the vetting process now consumes. The amendment's striking of ``in the case of a rejection or withdrawal'' in Sec. 3346(b)(2) is to ensure that an acting officer can serve for 210 days if a second nomination is made of a person whose first nomination was returned by the Senate. The phrase ``applicable to'' is replaced by ``the exclusive means for temporarily authorizing an acting official to perform the functions and duties of'' in Sec. 3347(a) to ensure that the Vacancies Act provides the sole means by which temporary officers may be appointed unless contrary statutory language as set forth by this legislation creates an explicit exception. The phrase ``statutorily vested in that agency head'' is added to Sec. 3347(b) to clarify that so-called ``vesting and delegation'' statutes that permit the agency head to delegate functions and duties to subordinates in the department whose positions lack defined statutory duties apart from assisting the agency head do not permit the agency head to appoint acting officials. Thus, the organic statutes of the Cabinet departments do not qualify as a statutory exception to this legislation's exclusivity in governing the appointment of temporary officers. Changes were made to Sec. 3348(b) to provide that the vacant office provisions of the legislation apply not only when an acting officer has served more than 210 days without a nomination for the office having been submitted to the Senate, but also prior to the 210 days after the vacancy occurs unless an officer of employee performs the functions of the vacant office in accordance with Sec. Sec. 3345, 3346, and 3347 of this legislation. The tolling period provided in Sec. 3348(c) when the 210th day falls on a day on which the Senate is not in session is extended from the first day that the Senate is next in session and receiving nominations to the second such day. The changes clarify Sec. 3348(d) to provide that actions taken by persons not acting under Sec. Sec. 3345, 3346, or 3347 or as provided by Sec. 3348(b) of any function of a vacant office to which Sec. Sec. 3346, 3347, 3348, 3349, 3349a, 3349b, and 3349c apply shall have no force or effect. Added to the list of positions in Sec. 3348(e) that are not subject to the vacant office provisions are any chief financial officer appointed by the President by and with the advice and consent of the Senate, since the head of the agency should not be permitted to execute the functions of such an official. The amendment also adds to the same list any other positions with duties that statutory provisions prohibit the agency head from performing. The Comptroller General's duties under Sec. 3349(b) are now to be performed ``immediately'' upon his or her determining that the 210 day period has been exceeded. Section 3349b is changed to preserve all statutory holdover provisions in independent establishments, not merely those independent establishments headed by a single officer. The list of excluded officers contained in Sec. 3349c is expanded to include any judge appointed by the President by and with the advice of the Senate to an Article I court. This includes the Court of Federal Claims, but this exclusion does not apply to administrative law judges, since they are not appointed by the President by and with the advice and consent of the Senate. The list is also expanded to include members of the Surface Transportation Board, which, like the Federal Energy Regulatory Commission, is denominated an ``independent establishment'' despite its location in an Executive department. New Sec. 3349d addresses the situation when the 210 day service period for an acting officer expires without a nominee having been submitted to the Senate, and the 211th day occurs during a Senate recess or adjournment of more than 15 days. Rather than wait until the Senate reconvenes to avoid the vacant office provisions of Sec. 3348 from taking effect, the President may submit to the Senate a written notification of intent to nominate a permanent officer for a particular office after the recess or adjournment. At that point, an acting officer qualified to serve as such by this law may begin to serve as the acting officer for that particular position. So long as the President actually submits the nomination of the person so designated in the written notification for that particular office within two days of the Senate's reconvening, the actions of the acting officer are valid from the date the acting officer begins service and so long as the nomination is pending. However, if the President does not actually nominate the person who was the subject of the written notification for the particular subject designated in the written notification within two days of the reconvening of the Senate, then the notification considered a nomination that permitted the acting officer's service shall be treated after the second day the Senate reconvenes as a withdrawn nomination is treated under this legislation. The effective date of this portion of the bill is 30 days after the date of its enactment. For any vacant office as of the date of enactment, the time limitations under Sec. 3346 apply as if the office became vacant as of the effective date of this section. If the President nominates a person after the effective date of this section for an office to which that person had been nominated before the effective date, that second nomination will be treated as a first nomination under this section. All other changes are intended to be purely technical.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I thank my colleague from Michigan for his hard work on and dedication to information technology issues. The Committee on Governmental Affairs which I chair has had a long and involved history with this issue. This bill which we are addressing today seeks to take advantage of the advances in modern technology to lessen the paperwork burdens on those who deal with the Federal Government. This is accomplished by requiring the Office of Management and Budget, through its existing responsibilities under the Paperwork Reduction Act and the Clinger- Cohen Act, to develop policies to promote the use of alternative information technologies, including the use of electronic maintenance, submission, or disclosure of information to substitute for paper, and the use of acceptance of electronic signatures. The Federal Government is lagging behind the rest of the nation in using new technologies. Individuals who deal with the Federal Government should be able to reduce the cumulative burden of meeting the Federal Government's information demands through the use of information technology. This bill hopefully will provide the motivation that the Federal Government needs to make this possible for our Nation's citizens. I thank Senator Abraham for offering us the opportunity to work with him on this important issue.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, in the closing days of the 105th Congress, the Senate passed two pieces of copyright legislation that will have enormous impact. As Charles Dickens might say, it is the best of times and the worst of times for those who create the property that is protected by copyright. First, the Senate passed S. 505, which extended the terms of copyrights by 20 years, to life plus 70 years from life plus fifty years. For a number of years, our trading partners and competitors have protected their copyrights for the life of the author plus 70 years. Under the rule of the shorter term, these nations protected American copyrights for only the life of the author plus 50 years. The United States is the world leader in copyright, and should afford the greatest protection for copyrighted works of any nation, both to encourage creativity that benefits all, and for our own national interest with respect to the balance of trade. The extension of copyright terms will be of enormous benefit to songwriters and others who create copyrighted works. It will benefit the public through enhanced creative activity, and the further public performance of already existing works to be enjoyed by future generations. But S. 505 contained a bitter pill to swallow, the so-called Fairness in Music Licensing Legislation. These provisions are terribly unfair to those who create music. When a person profits from a public performance of music, he or she should fairly compensate the creator of that music through royalty payments. This is an elemental necessity for the creation of music. To paraphrase Justice Holmes, if music did not pay, no one would write it. The average songwriter receives less than $5,000 per year in royalties, and the average restaurateur pays only a few hundred dollars a year to play music in his establishment, about 1% of revenues. At the same time, the restaurateur uses music to create an ambience that will cause people to come to his establishment, and to spend more time and money there than they would without the music. But the restaurateurs, retailers, and others wanted something for nothing. The songwriters were even willing to help out the mom and pop restaurants by exempting broadcast performances of their music in about two-thirds of the Nation's restaurants. But that was not good enough for the music users, who had the House pass outrageous legislation that amounted almost to stealing from the songwriters. A House that purports to defend property rights passed the most anti-property rights legislation in many years. We worked in the Senate to improve that House-passed bill. We preserved vicarious liability, a necessity to ensure that royalties are paid. We prevented retailers and restaurants from challenging their rates in any city they chose, which would have been an unacceptable burden on the ability of songwriters to protect their rights. We eliminated provisions that would have enabled department stores to use music for free. In addition, we increased enforcement of payments because a judge can award double the licensing fees for up to three years instead of current law's limits of statutory damages. But I still have major concerns about S. 505, even with these changes. Songwriters' property taken from them and used by others without payment. The exemptions are too generous, as they go well beyond the interest of small establishments. In fact, the vast majority of songwriters are smaller business people than many of the establishments that will be exempted from paying royalties by this bill. At the same time, this bill runs counter to our international treaty obligations under the Berne Convention and the TRIPS Agreement. Those treaties benefit Americans more than any other country. We have the greatest interest in ensuring compliance by all signatory countries with these treaties. Yet we have passed a bill that is inconsistent with these treaty obligations. What will happen when foreign countries do not live up to their promises to protect intellectual property, citing our own example of this legislation back to us? Songwriters may not be the only losers; copyright protects computer software and other non-performing arts creative material. Some of the companies who may be hurt by international retaliation may be member companies of organizations that insisted on the music licensing provisions. Only time will tell if the World Trade Organization will find that this bill violates international treaties that are binding on this country. But there is a good chance that these unfair music licensing provisions will not be able to stand. It became clear in the final days of this Congressional session that in order to obtain copyright term extension and the WIPO implementing legislation, unfair music licensing legislation would have to be included. Although the music licensing provisions are considerably better than those contained in the House-passed bill, they are still unfair. However, the 20-year extension in copyright terms is a significant benefit to songwriters, and the WIPO Treaty implementing legislation will assist creative artists in the digital age, as well as enhance worldwide protection of copyrighted materials. In implementing this treaty, it is unfortunate that my colleagues have passed legislation that violates our existing treaty obligations. Mr. President, there are times when the bad has to be taken with the good. The music licensing provisions are indefensible, but a necessary cost of obtaining very important legislation for the benefit of creative artists. It should not have been this way. I am confident that the music licensing issue is not yet over, and I regret the likely embarrassment that will ultimately fall upon this body when the language it has passed is ruled to violate our treaty obligations.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, today I am pleased to introduce the Government for the 21st Century Act of 1998, a bill to establish a commission to bring the structure of our government in line with the needs of our Nation in the next century. This bipartisan legislation is the result of work over several months between myself and Senators Glenn, Brownback, Lieberman, Roth, and Stevens. It has been carefully crafted to address not just what our government should look like, but the more fundamental question of what it should do. We all know the old adage, ``form follows function''--but in the case of our government, form too often impedes function. The federal infrastructure should enable it to respond to national needs and the needs of individual citizens quickly, efficiently, and successfully-- but years of outmoded bureaucracies, procedures and red tape have impeded the kind of responsible service our citizens deserve and expect. The government we have today was designed for a world which has long since passed into history, a world in which personal computers did not exist, two-income families were the exception and no one had ever heard of a ``sport utility vehicle''. In short, it is time to modernize the federal government, and there is no more appropriate time to do it than on the eve of the next century. It seems to me that the federal government is doing too many things to do them all well. I believe we must reevaluate the functions of government to improve government service where it is needed, redirect resources where it is necessary, and get the federal government out of activities in which it does not belong. Our Founding Fathers envisioned a government of defined and limited powers. I can imagine their dismay if they knew the size and scope of the federal government today. We need to return to the limited government that the Founders intended, and the Commission established in the legislation we are introducing today is a major step in that direction. The Government Restructuring and Reform Commission established by this legislation would take a hard look at federal departments, agencies and programs and ask-- Can and should we consolidate these agencies and programs to improve the implementation of their statutory missions, eliminate activities not essential to their statutory missions, and reduce duplication of activities while increasing accountability for performance? How can we improve management to maximize productivity, effectiveness and accountability? What criteria should we use in determining whether a federal activity should be privatized? Which departments or agencies should be eliminated because their functions are obsolete, redundant, or better performed by state and local governments or the private sector? We all want a federal government that is as innovative and responsive as the government we envision. Our challenge is to determine how to get there. We must start by asking ourselves what the essential functions of government will be in the next century, so we may tailor the scope and structure of the executive branch accordingly. Some activities now performed by the federal government may require more resources; others will surely require less. The Commission on Government Restructuring and Reform will give us a blueprint for designing a federal government to meet our Nation's needs now and in the future. I am pleased that Senators Lieberman, Brownback, Roth, and Stevens are joining me in introducing this bill today, and I thank them for the time and staff they have devoted to the effort. I look forward to working with them on this important legislation. I ask unanimous consent that the Government for the 21st Century Act, along with the brief summary and section-by-section analysis, be printed in the Record.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, today I am pleased to introduce the Government for the 21st Century Act of 1998, a bill to establish a commission to bring the structure of our government in line with the needs of our Nation in the next century. This bipartisan legislation is the result of work over several months between myself and Senators Glenn, Brownback, Lieberman, Roth, and Stevens. It has been carefully crafted to address not just what our government should look like, but the more fundamental question of what it should do. We all know the old adage, ``form follows function''--but in the case of our government, form too often impedes function. The federal infrastructure should enable it to respond to national needs and the needs of individual citizens quickly, efficiently, and successfully-- but years of outmoded bureaucracies, procedures and red tape have impeded the kind of responsible service our citizens deserve and expect. The government we have today was designed for a world which has long since passed into history, a world in which personal computers did not exist, two-income families were the exception and no one had ever heard of a ``sport utility vehicle''. In short, it is time to modernize the federal government, and there is no more appropriate time to do it than on the eve of the next century. It seems to me that the federal government is doing too many things to do them all well. I believe we must reevaluate the functions of government to improve government service where it is needed, redirect resources where it is necessary, and get the federal government out of activities in which it does not belong. Our Founding Fathers envisioned a government of defined and limited powers. I can imagine their dismay if they knew the size and scope of the federal government today. We need to return to the limited government that the Founders intended, and the Commission established in the legislation we are introducing today is a major step in that direction. The Government Restructuring and Reform Commission established by this legislation would take a hard look at federal departments, agencies and programs and ask-- Can and should we consolidate these agencies and programs to improve the implementation of their statutory missions, eliminate activities not essential to their statutory missions, and reduce duplication of activities while increasing accountability for performance? How can we improve management to maximize productivity, effectiveness and accountability? What criteria should we use in determining whether a federal activity should be privatized? Which departments or agencies should be eliminated because their functions are obsolete, redundant, or better performed by state and local governments or the private sector? We all want a federal government that is as innovative and responsive as the government we envision. Our challenge is to determine how to get there. We must start by asking ourselves what the essential functions of government will be in the next century, so we may tailor the scope and structure of the executive branch accordingly. Some activities now performed by the federal government may require more resources; others will surely require less. The Commission on Government Restructuring and Reform will give us a blueprint for designing a federal government to meet our Nation's needs now and in the future. I am pleased that Senators Lieberman, Brownback, Roth, and Stevens are joining me in introducing this bill today, and I thank them for the time and staff they have devoted to the effort. I look forward to working with them on this important legislation. I ask unanimous consent that the Government for the 21st Century Act, along with the brief summary and section-by-section analysis, be printed in the Record.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I am pleased that we passed a regulatory accounting provision in the Treasury and General Government Appropriations bill. I appreciate that the conferees retained the provision I introduced to the Senate bill. I believe that this legislation will help promote the public's right to know about the benefits and costs of regulatory programs; to increase the accountability of government to the people it serves; and ultimately, to improve the quality of our government. This amendment aims to provide better information on the performance of regulatory programs. This information should help us assess what benefits our regulatory system is delivering, at what costs, and help us understand what need to do to improve it. The American people deserve better results from the vast time and resources spent on regulation--$700 billion per year, or $7,000 for the average American household by some estimates. By regulating smarter, we could have a cleaner environment, safer workplaces, quality products, and a higher standard of living at the same time. As the Office of Management and Budget stated in its first Report to Congress on the Costs and Benefits of Federal Regulations in 1997: [R]egulations (like other instruments of government policy) have enormous potential for both good and harm. . . . The only way we know how to distinguish between the regulations that do good and those that cause harm is through careful assessment and evaluation of their benefits and costs. Such analysis can also often be used to redesign harmful regulations so they produce more good than harm and redesign good regulations so they produce even more net benefits. I am pleased that there is broad support for this amendment, particularly from Majority Leader Lott and Senators Breaux, Robb, and Shelby, who cosponsored it. There is a broad bipartisan coalition in the House that supported this provision. And it continues the efforts of my precedessors. Senator Ted Stevens first passed a regulatory accounting amendment in 1996 when he was the Chairman of the Governmental Affairs Committee. Regulatory accounting also was a part of a regulatory reform bill that unanimously passed out of committee in 1995 when Bill Roth chaired Governmental Affairs. I added several new requirements to the Stevens amendment to improve the credibility and usefulness of the report. First, OMB is required to arrange for peer review of its draft report and draft guidelines. The peer review must be conducted by an organization independent and external from the government, with expertise in regulatory analysis and regulatory accounting. It is critical that the peer review be performed by experts who will critique the draft based on the state of the art-- not by a partisan interest group. Last year, the American Enterprise Institute and the Brookings Institution sponsored a conference on OMB's first regulatory accounting report. A distinguished group of independent economists unanimously agreed that OMB had fallen short in many respects. That is the kind of constructive peer review we need. Second, OMB must take a more active role in ensuring the quality and credibility of information used in the report. OMB must issue guidelines to the agencies to standardize plausible measures of costs and benefits and the format of regulatory accounting statements. Third, OMB must provide more detailed information on the incremental costs and benefits of regulation, broken down by agency and by agency program. Thus far, OMB has failed to provide that information, despite repeated statements in legislative history and in correspondence to OMB. A great deal more information on the incremental costs and benefits of agency programs can be assembled by OMB, especially for programs run by big agencies such as EPA, DOT, OSHA, FDA and the Department of Labor. Fourth, OMB must count the paperwork burden. A 1995 report of the U.S. Small Business Administration, entitled The Changing Burden of Regulation, Paperwork, and Tax Compliance, estimated the process costs of regulation at $229 billion for 1998. Clearly, this must be accounted for. Finally, OMB must assess the direct and indirect impact of Federal regulation on small business; State, local and tribal government; wages; and economic growth. This provision addresses several important concerns. Regulation can have a disparate impact on small businesses. The 1995 SBA report found that, for companies with under 20 workers, regulation costs $5,500 per worker each year--far higher than the per worker cost for large companies. Many regulations also impose unfunded mandates on State, local and tribal government. Unfunded mandates are putting a severe strain on these governments, forcing them to raise taxes, reduce essential services, or even face bankruptcy. Finally, the public has a right to know that there is no free lunch. Regulation can reduce productivity, wages and economic growth. In the end, the public pays for regulatory programs through higher prices and taxes, reduced government services, and squandered opportunities to do better. It is time for the Government to come to grips with the good, the bad, and the ugly about regulation so we can design a smarter, more cost-effective regulatory process. Mr. DODD addressed the Chair.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I thank my colleague from Alabama for his cooperation on this matter. The Committee on Governmental Affairs, which I chair, has long been a supporter and friend of the Inspector General (IG) community. Twenty years ago, the Committee's leadership led to passage of the Inspector General Act, legislation which has served Congress, the executive branch, and the public well. As their primary committee of jurisdiction, the Committee has a longstanding and abiding interest in the IGs. Thus, the Committee has an interest in any legislation that affects the duties of the IGs. Portions of the ``Intelligence Community Whistleblower Protection Act of 1998'' amend the IG Act by vesting the Defense Department and Justice Department IGs with authority to act upon allegations received from intelligence community whistleblowers who wish to complain to Congress about problems they see in certain sensitive areas. Recognizing the Committee's jurisdiction and interest in this matter, Senator Shelby solicited my views on how the whistleblower provisions fit within the existing IG statute. I thank Senator Shelby for offering me the opportunity to work with him on this important issue. S.C. Secrecy Reform Act

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I applaud the Senate's action in passing a joint resolution, S. J. Res. 58, recognizing the accomplishments of Inspectors General during the last 20 years. Inspectors General came into being in 1978, when with the leadership of the Senate Governmental Affairs Committee, Congress passed the act creating these vital positions. The initial legislation was modified and expanded in 1988, and today there are IGs at nearly 60 Federal departments, agencies, and other entities. IGs are a unique institution. By design, they are independent voices that owe duties to both Congress and their agency heads. Their job, which is not easy, is to identify and report on waste, fraud, and abuse, and other problems in Federal Government and then recommend solutions. IGs have served the taxpayers of this country well. Every year, they make recommendations totaling billions of dollars on how our government should spend money more wisely. They return hundreds of millions of dollars to the Federal treasury annually through investigative recoveries. And they help protect the integrity of Federal Government operations by successfully prosecuting thousands of criminal cases and suspending or disbarring thousands of individuals and entities who have taken advantage of the government. Naturally, IGs are not always popular at their agencies. No official likes to hear that a policy proposal is going to cost too much money or that a favored program suffers from waste, fraud, or abuse. But delivering news about problems, while sometimes unpopular or unwelcome by an agency, is vital to responsive and wise government management. Thus, we did well to pass this resolution recognizing the achievements of the IGs and thanking them for their services. The Governmental Affairs Committee looks forward to working with the IGs in the future, including considering possible improvements to the IG act to ensure that they are afforded the necessary independence and authority.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I thank my colleague from Michigan for his hard work on and dedication to information technology issues. The Committee on Governmental Affairs which I chair has had a long and involved history with this issue. This language which we are discussing today seeks to take advantage of the advances in modern technology to lessen the paperwork burdens on those who deal with the Federal government. This is accomplished by requiring the Office of Management and Budget, through its existing responsibilities under the ``Paperwork Reduction Act'' and the ``Clinger-Cohen Act,'' to develop policies to promote the use of alternative information technologies, including the use of electronic maintenance, submission, or disclosure of information to substitute for paper, and the use and acceptance of electronic signatures. The Federal government is lagging behind the rest of the nation in using new technologies. Individuals who deal with the Federal government should be able to reduce the cumulative burden of meeting the Federal government's information demands through the use of information technology. This language hopefully will provide the motivation that the Federal government needs to make this possible for our nation's citizens. I thank Senator Abraham for offering us the opportunity to work with him on this important issue.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, just in response on some of the points that my friend from Kentucky made with regard to whether or not the other States need this and whether or not it is worked out permanently to their satisfaction, I think probably the Members of this body who represent those States would be the best witnesses. If the Oregon situation is worked out, then perhaps Senator Gorton and Senator Murray will oppose me on this. But I do not think they do. I think the two Senators from the State of Washington do not feel like it has been worked out. Just as the situation is with South Dakota. I think the distinguished minority leader of this body supports this provision in the legislation. So, regarding the Tennessee/Kentucky situation, the negotiations that my friend refers to, I think the result was a bit different than what has been alluded to. My understanding was there was one meeting in August and the suggestion was that Tennessee absorb the difference; that we give these Tennessee employees a credit and the State of Tennessee absorb the difference. That was not considered to be fair by the people in Tennessee, so those negotiations broke down. With regard to the college tuition situation, at issue here is not that this gentleman moved from Kentucky back to Tennessee; that is for sure. The issue is he was working on the Kentucky side and paying Kentucky income taxes and still not getting that benefit from Kentucky. That is the point. I believe, if my colleague will check--I suppose we cannot resolve it here this morning--but I think, if my colleague will check, he will see that when the situation is reversed, my understanding is when Kentuckians work on the Tennessee side, they get Tennessee instate tuition. I do not want to get into an extended battle between the States here. We enjoy a common border and friendly relationships and all that. But just on the basis of fairness, I believe we are doing a little bit better in that regard, in terms of comity, in terms of out-of-State tuition for workers who work at Fort Campbell. It is just simply based upon the proposition that a person should not have to go across the border, down the hall or down the street or across the street and so forth, when he is assigned new duties, not use any of the Kentucky facilities, and have to pay Kentucky income tax and not get any of the benefits, whether it be college instate tuition or not. I would also point out to my colleague with regard to Kentucky employees working at Fort Campbell who work on the Tennessee side, as far as ``on the post'' is concerned, they do not pay Tennessee sales tax. If they go off the post they will pay Tennessee sales tax, but then they are using Tennessee facilities. The point is just simply not well founded any way that you look at it. With regard to the States rights issue, that is something that, of course, is of concern to all of us. A lot of people strongly believe in federalism and that the proper role of the States should be preserved in the relationship between the State and the Federal Government. I would simply point out that with regard to most of these issues, it has to do with the relationship between the State governments and the Federal Government, and the Federal Government's relationship with the States and their policies vis a vis the Federal Government. This has to do with the way a State government is treating the citizens of another State. Ever since we have had the interstate commerce clause in the Constitution, that has been something that has been appropriately addressed by the Congress of the United States. So I do not want to beat a dead horse here either. I feel, as does my colleague from Kentucky, that we are not going to change very many votes on this debate. But, in closing, I hope our friends in Kentucky do not feel that this is some kind of a power grab, something that is unfair to them, something that we have them over the barrel on. This is something that is supported by Democrats and Republicans in this body. It is very narrowly tailored. My friend refers to 240 other situations. They are not similar. The only comparable or analogous situations would be those situations where Federal facilities straddle a State border, and there are only three of them, and those are the three that we deal with here. We are trying to do what we often do in this body, and that is finely tailor a remedy for something that doesn't affect many people. It doesn't affect many people at all. But with regard to those who are affected, it is important for those folks who on average are making $30,000 a year. It is something we have been trying to work out for 10 years. We have not been able to. I would rather not have to come to the floor of the U.S. Senate and resolve this matter this way, either. After trying all other avenues, we were left with no choice. Mr. President, I thank my colleagues and extend my good wishes and respect to the senior Senator from the Commonwealth of Kentucky who has fought so long and hard for his State. I never look forward to having to come to the floor and take him on in any circumstance, especially when he is defending or representing and taking the side of the Commonwealth of Kentucky, because I know his heart and soul is in it. I respectfully disagree with him on this. I think it is the right thing to do. I think it is fair to these employees, and I urge its adoption. I yield the floor. Mr. FORD addressed the Chair.

Mr. THOMPSON. Will the Senator yield for a moment?

Mr. THOMPSON. Mr. President, I forgot to inquire as to the time situation. I understand we had 30 minutes. May I ask if time was kept on me before, how much time I have remaining on that?

Mr. THOMPSON. I thank the Senator.

Mr. THOMPSON. Mr. President, I rise to express my strong support for the conference report we are considering today. This report includes a provision that will provide relief to approximately 2,000 citizens of my State of Tennessee who are being unfairly taxed by the Commonwealth of Kentucky. These people are civilian employees at Fort Campbell who live in Tennessee and work on the Kentucky side of Fort Campbell. They are being required to pay income tax to Kentucky. But they receive no services from Kentucky. I understand that it has been stated on the floor this morning that Tennessee is taking unfair advantage of Kentucky, that perhaps we will bankrupt the State or do grievous harm to them--basically a conspiracy among Democrats and Republicans, apparently, Tennesseans and Kentuckians, to perpetrate somewhat of an outrage against the good folks of Kentucky. I am sorry that we can't debate it based strictly on the merits of the action being taken, because it is a very, very meritorious objective consideration of what we are doing here today. On any objective consideration in terms of sound policy, or in terms of fairness, this provision stands and survives. We are not taking unfair advantage of the Commonwealth of Kentucky, our good neighbors to the north. What we are doing, as attested to by a vote of 15-to-0 out of the Governmental Affairs Committee, is righting a wrong and correcting an inequity. The Commonwealth of Kentucky has gotten used to being able to tax Tennesseans--levy income tax on them--without providing any services to them. Weaning from a situation like that I guess perhaps can be somewhat painful, but I don't think it is going to do grievous harm to the Commonwealth of Kentucky, which I understand had a $306 million surplus last year, and is perhaps beside the point. But when we are talking about fairness and equity, and some of the other things we are discussing today, and the fact that we are discussing basic principles and so forth, and who looks out for the little guy, we are basically dealing with civilian employees working at Fort Campbell with average incomes of about $30,000 a year. So these Tennesseans are paying about $1,800 a year to Kentucky for nothing in return. So let's just put that in a little bit of perspective. Of course, it is not just the Tennessee-Kentucky situation, it is two other situations where the Federal facility straddles the State border. This provides relief for the State of Washington also. It also provides relief for the State of South Dakota. I don't see the Members of the State of Oregon, which is affected by it, or the State of Nebraska, which is affected by it, to seem to have any problems either with the constitutionality or the fairness of their situations. The situations are basically the same. But we have an issue here today with regard to Tennessee and Kentucky. So be it. As I said, these are civilian Federal employees. They work in Fort Campbell, KY. As it is well known, 80 percent of Fort Campbell is in the State of Tennessee. The mailbox is Kentucky. It is referred to as Fort Campbell, KY. There are several Federal civilian employees who live in Tennessee and who work on the Kentucky side. Some of them have worked on the Tennessee side for a long time and are assigned on the Kentucky side. They have nothing to do with that. It is not within their power, if they want to remain employed. And thereby Tennessee does not have an income tax. Kentucky does. They pay the maximum sales tax and other taxes in Tennessee, plus the income tax of Kentucky. They enter the Federal facilities on the Kentucky side by a Federal route. They do not go on the property of the Commonwealth of Kentucky to enter the place where they are working. As I said, there are no services provided. I understand there was some reference made to some resident facilities being provided with water or some services. Of course, these people do not avail themselves of that. I can't imagine anything other than a most dire emergency where fire, water, sewer, and police protection, and all of that is provided by the Federal Government. If the problem gets so big, I imagine folks in Tennessee and Kentucky would come in and try to help out. But basically, in terms of basic services--fire, police, sewer, and water--none of those services is provided by the Commonwealth of Kentucky for the benefit of these employees. Basically what they are doing is paying income taxes for nothing received. As I said, these people are not in the military. There is already an exemption for the military employees. They can only be taxed in their State of residence. This is a situation where literally some people have been transferred and moved across the street, or even down the hall in their own building, and become subject, just because of that move, to Federal income tax or to income tax from the Commonwealth of Kentucky. When people in that situation--who live in Tennessee, work in Kentucky, only go on Federal property to get to their job, come right back, no services--if those individuals go on unemployment, they can't go to the Commonwealth of Kentucky and get unemployment benefits. We had a witness before the Governmental Affairs Committee, when this was taken up, who makes $15,000 a year--$15,000 a year, and three kids--is a Federal civilian employee, lives in Tennessee, and works on the Kentucky side. When she went on hard times and had to apply for food stamps, she applied to the State of Kentucky and was turned down. There was another witness who appeared before our committee who had been in the Air Force for 20 years, grew up in Kentucky, and paid Kentucky taxes far 20 years; then he moved to Tennessee; then he was assigned at Fort Campbell on the Kentucky side while he was living in Tennessee--the typical kind of a situation we are addressing. His daughter applied to the University of Kentucky. He sought instate tuition rates. He was denied that. He was treated as out-of-State for purposes of tuition when his daughter wanted to go to the University of Kentucky. In other words, he is a Tennessean under some circumstances, when it benefits the Commonwealth, and a Kentuckian in other circumstances, when it benefits the Commonwealth. As I said, it is not just Tennessee that is involved here. Employees at the Gavin's Point Hydroelectric Dam are in a similar situation. This dam is a Federal facility maintained by the Army Corps of Engineers and it straddles the Missouri River. The Missouri River is the border between South Dakota and Nebraska. The 35 South Dakotans who are employed at the dam are subject to Nebraska income tax on half their wages earned on the dam. Nebraska claims that because half of the Gavin's Point Dam is in the State of Nebraska, half the wages earned by South Dakotans on the dam are subject to Nebraska income tax. But these South Dakotans only travel into Nebraska while they are working on the Federal dam and they receive no benefits from Nebraska for the taxes that they are required to pay. They are ineligible for Nebraska unemployment benefits and accident insurance benefits. Likewise, Washingtonians employed at the Columbia River hydroelectric dams were subject to tax by the State of Oregon until just recently. These dams are Federal facilities maintained by the Army Corps of Engineers. They straddle the Columbia River. The Columbia River is the border between Washington and Oregon. One-hundred and forty Washingtonians working on these dams only cross into Oregon when their work takes them across the midpoint of the dams. Oregon had required these employees to keep detailed records regarding the exact amount of the time they spent on the Oregon side of the dam in order to obtain a tax refund from Oregon for time worked on the Washington side of the dam. Oregon also required Washington residents to pay income tax on a prorated amount of their vacation pay based upon the percentage of time during the year worked on the Oregon side of the dam. Because employees at the dam cross back and forth multiple times a day, Oregonians' recordkeeping requirements forced the Federal employees to waste a good portion of their workday documenting their movements across the dam. The Washington residents working on the Columbia River Dam receive no benefits from the State of Oregon. They are not eligible for instate tuition rates at Oregon schools. They are not eligible for Oregon unemployment compensation benefits. In fact, when a Washingtonian who was laid off from Washington at one of the dams applied for Oregon unemployment compensation, he was denied. But when he later received unemployment benefits from Washington, Oregon tried to tax those benefits. I recognize that the Oregon State Legislature enacted a bill last year to exempt Washingtonians employed at the Columbia River Dam from Oregon income tax. But it appears that the State was only reacting to the other body's swift movement of H.R. 1953. Oregon is continuing to require Washington residents to file W-2 forms in Oregon. Therefore, Washingtonians fear that Oregon may repeal the recently enacted exemption in the absence of Federal legislation. Now, there is no question that with the passage of the Buck Act in 1940, States have the authority to tax Federal employees, but over a period of time, after due deliberation by Congress, there have been exceptions that have been made to this. There has been an exception for the military. There has been an exception for Members of Congress. There has been an exception for Amtrak employees, for example, employees who, of course, travel over several States. There was an exemption with regard to the ability to tax pension income from nonresidents. So these have been exemptions, and we can argue and debate the wisdom of each of these exemptions, but it has been long recognized. There is no question about the constitutionality, incidentally. The witnesses even before our committee who did not think that what we were doing was the best way to go, I don't think raised any questions concerning the constitutionality of what we were doing. Congress clearly has the right constitutionally to move in this regard. We can debate the merits of each of these exemptions, but there has been no question over the years after due deliberation there have been exemptions carved out on the basis of what is right and on the basis of fairness. This idea that we are opening up Pandora's box and it is going to affect anybody who works near a Federal facility or anything of that nature is certainly a misplaced concern. But that is not something that has been affected here--not employees who are near a border. We are talking about a specific situation where you have a Federal facility straddling two States. One State does not have a State income tax and the other State does. That is a very, very specific and narrow situation with which we are dealing. It does not affect national parks, for example, where local governments have much more to do with providing emergency services and things of that nature than the Commonwealth of Kentucky or the other two States affected here, the State of Oregon and the State of Nebraska, provide in these situations. I agree that Congress should tread carefully when it acts to limit the taxing authorities of States, but these three situations addressed by the conference report are exceptional, and I believe they meet the elevated threshold which has been set by Congress for preempting a State's taxing authority. At this time I would like to thank my distinguished colleagues who have served as conferees on the Strom Thurmond National Defense Authorization Act for including this important provision in the final bill. I would also like to thank my friends from Tennessee, Congressman Bryant and Senator Frist, for their hard work on behalf of these 2,000 Tennesseans. I am pleased they are finally getting the tax relief they deserve. I urge all of my colleagues to support this conference report. I thank the Chair. I yield the floor.

Mr. THOMPSON. Mr. President, I yield the remainder of my time to the floor manager, Senator Thurmond.

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

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I appreciate Senator Cochran's comments. I am confident my colleagues will agree that any changes to the FEHBP need to be considered carefully through the legislative process in order to ensure the integrity of the program, preservation of choice for enrollees, and competition among plans. Toward that end, I look forward to Senator Daschle and Senator Harkin joining Senator Cochran and me in supporting passage of H.R. 1836.

Mr. THOMPSON

Mr. THOMPSON. Madam President, the Senate today will vote on whether to invoke cloture on the Federal Vacancies Reform Act. This legislation, which enjoys bipartisan cosponsorship, is necessary to restore the Senate's authority as an institution in the process of appointing important Federal officials. Madam President, I request that I be allotted 20 minutes of our time.

Mr. THOMPSON. A couple quick points. My friend from Connecticut makes good points, as usual. I point out, though, that the concern about, someone could not be a first assistant if they had not been there for so many days, that would not keep them from being the acting officer. If they were appointed to the permanent position, they would have needed to have been there for 90 days. But just to be the acting officer, anyone who serves in that position would become the acting officer without having been there any length of time. With regard to the second concern with regard to a new administration, my understanding is there is always a holdover person who is a Senate-confirmed person who traditionally takes care of those problems--essentially the same situation we have had for the last 130 years with regard to those concerns, I believe. I yield the Senator from West Virginia the remainder of my time, which I think is probably 2, 3 minutes. Mr. BYRD addressed the Chair.

Mr. THOMPSON. I ask the Senator from West Virginia if he has additional comments. I yield myself 2 minutes.

Mr. THOMPSON. Mr. President, I have a couple of points. With regard to the desire for symmetry, I point out that the symmetry and the balance are provided for in the Constitution itself. It is not symmetrical to take a constitutional provision and our constitutional duties, on the one hand, and equate it with legislation that people might be for or against, on the other. The Constitution provides that the President has the power to make the appointment, but only with the advice and consent of the Senate. It is part of our separation of powers, part of our checks and balances. Therein is the balance. What we have today is a situation where the President, the current President, as Presidents in the past, has made nominations and figured out ways around the prerogatives of the Senate. We are in a situation today where we are not doing our duty. The U.S. Senate is not doing its duty in upholding its right and protecting and preserving its right. We can bring this matter back. We cannot have cloture and bring this matter back time and time again. But we must recognize, with the provision, of course, of being able to offer germane amendments, we must recognize that this situation is ongoing. We can debate legislation at any time. If it is deemed desirable to put a time limit on the U.S. Senate to consider appointments, we can debate that. I think it is very bad legislation. As most Senators, I think, know, there is more than one reason why nominations languish up here sometimes. Sometimes they languish for very good reasons. Sometimes it is an attempt to work with the White House with regard to someone who has problems. Instead of just saying no and sending it back or telling them to take it back, we find ways to work around the problems we have. There are many reasons why that would be bad legislation, but it is something that can be considered at any time. We have had this vacancies situation with us about 130 years now in terms of this legislation, and there are all kinds of things that can be added to it at this date, that it would probably be better if it were considered separately and invoke cloture today so we can address a problem that is really important in terms of the constitutional responsibilities of this body. With regard to the other objections of the bill and talking about that this is too confining on the front end, actually we either are continuing practices that have been with us for 130 years or we are making them more liberal. We are giving the President greater leeway. We are giving him 150 days instead of 120 under current law. If we do not pass this legislation, he will keep 120 days instead of the 150 we are trying to give him. People are concerned about a new President coming in. We have added an additional 90 days to the 150 days in which a new President will have to make his nominations. We also added another liberalizing provision that, if he lets the 150 days expire and then there is a period of time and then he makes the nomination, the acting person can go back and resume his duties. These are all liberalizing provisions. I understand the need to consider amendments. I was hoping that the possibility of germane amendments would get us through this, in light of the fact that we have spent a lot of time working on a bipartisan basis and making several changes. We have made changes since this legislation was introduced to allow the President to cure a vacancy by sending up a nomination even after 150 days; by modifying the exclusion provision to exclude chief financial officers, for example; to allow a 150-day period when it expires during a recess to be extended to the second day after the Senate reconvenes; to reduce from 180 days to 90 days the length of time a first assistant held that position and can be eligible to be a nominee; extended the transitional period following a new President's inauguration, as I said, from 180 days to 240 days. In most of these cases, we have worked out on a bipartisan basis extensions and liberalizations from what is the current law. While there would not be an opportunity to offer relevant amendments that are not germane, I suggest that this is something whose time has come and that we would be doing a disservice if we did not go ahead and move this legislation--something that, as I say, has to do--it is not just a normal piece of legislation, it has to do with the carrying out of our constitutional duties. I yield the floor.

Mr. THOMPSON. I yield myself 5 minutes.

Mr. THOMPSON. May I inquire how much time remains?

Mr. THOMPSON

Mr. THOMPSON. Mr. President, this country will face an unprecedented problem on January 1, 2000, when many computer systems, in the form of software, hardware and embedded chips, will interpret the year as 1900 rather than 2000, potentially resulting in extensive failures of critical operations. The fix to this problem is not a technological challenge, but a management challenge due to its massive nature and the limited time we have to fix it. With less then 465 days until the new millennium, this problem will affect every level of government, every size of business, and literally every person in this great nation. Although the Year 2000 Information and Readiness Disclosure Act does not represent the silver bullet to remedy this problem, I rise today to voice my support for this legislation. This bill will encourage both public and private sector entities to disclose year 2000 related information, in the form of product readiness, proposed solutions and testing processes, thereby increasing the ability of governments and businesses to update their own systems and avoid potentially catastrophic failures. Mr. President, I had a number of concerns with this legislation in its original form. First of all, this legislation preempts state and local liability law. Typically, neither I nor many of my colleagues would support such preemption of state authority; however, this problem warrants drastic action. In fact, state and local government associations have expressed their support for this bill. Second, this legislation reduces the standard of care required in providing accurate information as currently defined in state and local statutes. Due to the critical nature of this problem, I can support this provision for cases where businesses are sharing information with the intent to identify a common solution and prevent a potentially catastrophic failure. However, in its original form, this bill would have extended this protection to sellers of year 2000 remediation products and services whose statements may be motivated solely by financial interests. Mr. President, to address these concerns I introduced an amendment in the Judiciary Committee which failed to pass. However, I worked with the Committee and other interested parties to develop language that achieved all the goals and intentions of my original amendment. This language has been adopted in section 6(b), and all interested parties agree we have strengthened the bill. My language will mitigate against false and inaccurate year 2000 solicitations while promoting the open sharing of information needed to solve the year 2000 problem. Further, it will expressly prevent vendors which sell year 2000 remediation products from taking advantage of unknowing customers by making the protections of the bill unavailable to any seller of these products who does not inform in writing any entity, including businesses, governments, and non-profit organizations, that its legal rights under state law are reduced by this bill. By imposing a higher duty of care in these instances, failures will be prevented. Since my concerns have been addressed, I support immediate passage of this bill.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I ask unanimous consent that the Committee on Rules and Administration be authorized to meet during the session of the Senate on Monday, September 28, 1998, at 5:30 p.m. to mark up S. 2288, the Wendell H. Ford Government Publications Reform Act of 1998.