Fred Thompson

Mr. THOMPSON

Mr. THOMPSON. I ask consent for an additional 30 seconds.

Mr. THOMPSON. We have not made that kind of distinction; we have not made a distinction between those countries that pose a threat and countries that do not. We are going to have to address all of those issues and mainly we are going to have to address the question of whether or not we want to also intervene, as a Congress, with regard to those instances where the administration is not imposing sanctions when this Congress believes they should; where this administration is granting waivers to Russia and China time and time again with regard to their activities of proliferation.

Mr. THOMPSON

Mr. THOMPSON. The Chairman is correct. On June 8, 1998, Y-12 cast its first enriched uranium part since September, 1994. This achievement is a credit to the dedication and commitment of everyone at Y-12, and is a testament to the leadership and management expertise of Lockheed Martin and their teammates at the Department of Energy. It is also critically important to our national security, because Y-12 operations are crucial to the success of our Stockpile Life Extension Program. In fact, Y-12 is currently involved in the life extension program for the Peacekeeper Missile warhead, called the W87. Initial delivery of key components of this weapon are due at the end of this year, and manufacturing will continue for several years. I am very pleased that operations at Y-12 are up and running again, so that these critical national security missions can continue on schedule and uninterrupted. In that vein, I want to express my concern about any action on the Department of Energy's part that would disrupt the progress that has been made at Y-12 and jeopardize the timely completion of this very important Stockpile Life Extension project.

Mr. THOMPSON. As the Chairman knows, production activities at Y-12 were placed in a stand down mode on September 22, 1994, due to procedural and criticality safety concerns identified by the Defense Nuclear Safety Board. Since then, Y-12 has made significant progress improving its operations throughout the plant. Since the stand down, Y- 12 personnel have worked tirelessly to restart operations in the following mission areas: Receipt and Shipment, Disassembly and Storage Operations, Depleted Uranium Operations, and Stockpile Surveillance, while continuing to meet all defense mission requirements.

Mr. THOMPSON. I thank the Chairman. dod teacher quality

Mr. THOMPSON. I know the Chairman of the Armed Services Committee agrees with me that nuclear deterrence is the cornerstone of our national defense policy, and we should do everything we can to maintain a strong, viable nuclear deterrent in this country. This requires a robust nuclear weapons program, the ability to ensure that our weapons are both safe and reliable, and the ability to remanufacture any component of any weapon in the stockpile at any given time.

Mr. THOMPSON

Mr. THOMPSON. I thank the Chairman for his cooperation and assistance.

Mr. THOMPSON. Mr. President, I was planning to offer an amendment to this bill that would provide relief to the 2,200 civilian Tennesseans working at Ft. Campbell who are being unfairly taxed by the Commonwealth of Kentucky. My amendment would also provide relief to South Dakotans working on the Gavins Point Hydroelectric Dam who are being unfairly taxed by Nebraska, and the Washingtonians working on the Columbia River Hydroelectric Dams who are being unfairly treated by Oregon. I am joined in my efforts by Senators Frist, Gorton, Daschle, Murray, and Johnson. Mr. President, the folks working at these facilities may live in Tennessee or South Dakota, but they are being forced to pay state income tax to Kentucky and Nebraska, even though they receive absolutely no services or benefits from these states. These employees are being unfairly taxed by their non-resident state simply because their work takes them across the border into the neighboring state. The employees enter the neighboring state only on federal property. They do not travel on the neighboring states' roads during the course of their work. There is no reciprocal tax agreement between the two states to ensure that individuals pay tax only to one state (as is usually the case between neighboring states). So, these employees are fully supporting the governments of both their resident state and the neighboring state. At Fort Campbell, Tennessee civilians enter Fort Campbell on the Tennessee side of the post and cross into Kentucky on a Fort Campbell road that is maintained by the federal government. The Tennesseans do not travel on a Kentucky road to reach the Kentucky side of the post. And all emergency fire, police and medical services at Fort Campbell are provided by the federal government. We have a situation where Tennesseans are forced to pay the same Kentucky state income tax as a Kentucky resident, but they are not eligible to receive any benefits from the Commonwealth of Kentucky, such as unemployment compensation, in-state tuition, in-state hunting licenses or in-state fishing licenses. The federal employees working at the Gavins Point Dam and the Columbia River Dams face comparable situations. My amendment is very narrowly drawn so as not to establish a broad precedent. It would only affect the three listed facilities. In the past, Congress has acted to provide tax relief in similar extraordinary situations. Congress has exempted active duty military personnel, Members of Congress and their staffs, and Amtrak and other multi-state transportation employees from taxation except by their resident states. The legislation on which my amendment is based, H.R. 1953, has passed the other body twice this Congress and was reported by the Senate Committee on Governmental Affairs by a vote of 15 to 0. It is currently pending in the Senate Finance Committee. The Chairman of the Senate Committee on Finance, has expressed his support for this measure. Mr. President, I understand that the Senator from Kentucky has clearly indicated his intention to prevent the Senate from voting on my amendment. It is not my intent to hold up action on the DOD Authorization bill. I want to ask my distinguished colleague from South Carolina, the Chairman of the Committee, then for an assurance that he will work with me and the other cosponsors of this amendment in the conference to retain the provision identical to my amendment that was included in the other body's version of the DOD Authorization bill. This is a very serious matter for my state of Tennessee, for South Dakota and for Washington state, which must be addressed.

Mr. THOMPSON

Mr. THOMPSON. Daniel Smith's many and great accomplishments are far too numerous to list in this venue, but are celebrated daily in the freedom of our Nation and the struggles of the early Westward movement. Thomas Jefferson wrote of Smith after his death: For intelligence, well cultivated talents, for integrity, and usefulness, in soundness of judgement, in the practice of virtue and in shunning vice he was equaled by few men, and in the purity of motive, excelled by none. As Tennessee's United States Senators, we salute the vision of General Daniel Smith. He saw the vast potential in this young nation's early Westward movement, and his love of Tennessee is an inspiration to us all. We are proud to follow in his footsteps in the United States Senate, and we join our fellow Tennesseans in remembering this proud statesman on the 250th anniversary of his birth.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, our democracy depends not just on our citizens exercising the franchise at every election. It also depends on the active participation of citizens in the operations of the government. To that end, the federal government has sought input and advice from citizens on a wide variety of issues by creating advisory committees. To solicit this input, however, costs the government around $180 million a year, and results in an accretion of advisory committees that continue long after their useful purpose is satisfied. The operations of advisory committees are governed by the Federal Advisory Committee Act of 1972, commonly called ``FACA.'' This law was enacted out of a concern that federal advisory committees were proliferating without adequate review, oversight, or accountability. In adopting the FACA, Congress intended that the number of advisory committees be kept to the minimum necessary and that all advisory committees operate openly under uniform standards and procedures. Although the FACA was not enacted until 1972, agencies of the federal government had been using advisory committees for many years. For example, the Board of Visitors of the Naval Academy was established by Congress in 1879. There are four types of advisory committees used by federal agencies: committees mandated by Congress; committees authorized, but not mandated, by Congress; committees mandated by executive order of the President; and, finally, committees established by agencies under their organic statutes. Over the years, the number of advisory committees grew. In enacting the FACA, Congress mandated that all then-existing advisory committees terminate within two years but did not apply this mandate to advisory committees established directly by Congress, only to those created by agencies themselves. Despite this termination mandate, the number of advisory committees continued to increase after enactment of the FACA. Many of the advisory committees terminated two years after the FACA's enactment were simply reestablished, and many new committees have since come into existence. While allowing public participation in government, advisory committees cost the federal government money. According to the General Services Administration, the 968 federal advisory committees used by federal agencies cost the government $178 million in fiscal year 1997 and consumed 1254 full-time equivalent positions. Advisory committees are expected to cost the government $183 million this year. Even though the number of advisory committees has fallen from 1305 in 1993, their costs have continued to increase, even in constant dollars. In 1988, the cost to operate advisory committees was $93 million. The cost to operate fewer advisory committees in 1997 was about $136 million in 1988 dollars. The costs associated with advisory committees would be even higher were it not for initiatives taken to reduce the number of advisory committees created by executive branch agencies. The number of these ``discretionary'' committees, those created not at the direction of Congress or the President, is limited to 534. The GSA also conducts an annual review of advisory committees that no longer serve a useful purpose. Through this review, GSA has identified 61 advisory committees mandated by law that should be eliminated. The termination of these committees would save $8.4 million this year. The time has come for Congress to step up and do its part to achieve further cuts in current advisory committees. Unless Congress acts, the cost of advisory committees will continue to increase, as new committees are created and old, useless committees continue with no legitimate purpose. Today, joined by a bipartisan group of my colleagues on the Committee on Governmental Affairs, I am introducing the Advisory Committee Termination and Streamlining Act of 1998. I am pleased to be joined by the ranking member of the Committee, Senator Glenn, who has a long history of involvement with the FACA; Senator Cochran; Senator Levin, who formerly chaired the Subcommittee with oversight responsibility for the FACA; Senator Brownback, Chairman of the Subcommittee on Oversight of Government Management and Restructuring; and Senator Lieberman, the ranking member on the Government Management and Restructuring Subcommittee. This bill has been developed with the assistance of the Administration, which proposed many of its provisions. Let me briefly lay out what this legislation would accomplish. The focus of the legislation is to force the reappraisal of the need for all current advisory committees. To achieve this goal, the bill would terminate all advisory committees within three years of the bill's enactment. This three-year window applies to all advisory committees, whether established by congressional or presidential mandate, congressional authorization, or agency decision. Any advisory committee established by presidential order or agency decision will be subject to continuation if an affirmative decision is made that the committee's continuation is warranted. Similarly, three years will allow Congress enough time to review the advisory committees it has mandated, determine which of these continue to serve useful functions, and reauthorize such committees. This provision will clear away many advisory committees that continue to exist from inertia but no longer serve a useful function. The bill excludes two categories of advisory committees. Advisory committees that provide peer review of grant applications, such as those used by the National Institutes of Health, will continue, whether or not they are reauthorized, as the termination provision does not apply to them. The second category exempt from the termination provision covers those committees that provide advice relating to the academic certification of federal institutions. This category includes the Boards of Visitors of the service academies. Finally, the bill exempts from the termination provision all advisory committees that ``address critical needs relating to health, safety, national security, or other concerns as the President may certify.'' This exemption allows sufficient flexibility to preserve those advisory committees that continue to serve useful purposes in areas deemed important by the President. The other provisions of the bill can be quickly summarized. First, the bill allows the GSA to issue binding regulations and not just administrative guidelines. This change, proposed by the Administration, is needed to promote consistent, uniform application of the FACA's requirements throughout the executive branch. Second, the bill changes the date on which the Administration's annual report on advisory committees must be submitted to Congress from December 31 to March 15. The GSA has consistently failed to meet the December 31 deadline, due largely to its inability to collect the necessary information from other agencies in a timely manner. This change will provide a more realistic date for submission of the report, and the GSA has assured us that it will be able to meet the new March 15 deadline. Finally, the bill will allow the GSA to promulgate regulations authorizing notice of advisory committee meetings through means other than publication in the Federal Register. Many who have an interest in the work of specific advisory committees do not read the Federal Register, and the Administration is interested in experimenting with providing notice of meetings through the Internet or other electronic formats in order to determine whether other forms of notice are more effective at reaching large numbers of interested persons. Mr. President, this bill would streamline the government and save us money. It will have the additional benefit of requiring Congress and the Administration to work jointly to revisit the charters of all advisory committees and evaluate the need for their continuation. I thank the Administration for working with us to develop this bill and my cosponsors for working towards a consensus on this matter. I ask unanimous consent that the bill and a copy of a June 22, 1998 article from the Gannett News Service entitled ``Committees Dwindle-- but Costs Don't,'' which details some of these facts, be inserted in the Record.

Mr. THOMPSON

Mr. THOMPSON. Madam President, I ask unanimous consent that the pending motion and amendments be laid aside and it be in order for me to call up amendment No. 2813 relative to tax compensation at Fort Campbell and no second-degree amendment be in order.

Mr. THOMPSON. Madam President, I regret the objection of my colleague. At this time, I put Members on notice that I will attempt to get this issue agreed to on the next available bill. This is an important issue to many people in my State. Consequently, I hope to have the cooperation of a majority of colleagues when I move next to enact this legislation. I yield the floor.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I will offer three technical amendments on behalf of myself as chairman of the Governmental Affairs Committee and Senator Glenn, the Committee's ranking minority member, and Senators Thurmond, Levin, Santorum, and Lieberman. Senator Glenn and I thank the chairman and ranking member of the Armed Services Committee for their cooperation and assistance in preparing these amendments which will benefit not only the procurement process within the Department of Defense, but other agencies across the Federal Government as well. executive compensation The National Defense Authorization Act for Fiscal Year 1998 included a provision prohibiting executive agencies from reimbursing the salaries (in cost-type contracts) of contractors' senior executives in excess of the median income for senior executives in all publicly- traded corporations ($340,000 per year). The provision was intended to apply to the five most highly-paid executives of a defense contractor, and of each division of the contractor. However, the provision caused unnecessary confusion as to which contractor officials were covered, because it used terms that are not currently defined in statute or regulation. The proposed amendment would address this problem by defining ``senior executives'' of a contractor as ``the five most highly compensated employees in management positions at each home office and segment of the contractor.'' The terms ``home office'' and ``segment'' are defined in regulation (subpart 31.001 of the Federal Acquisition Regulation and Cost Accounting Standard 403-30(a)) and are understood by both government and private sector procurement officials.

Mr. THOMPSON. Mr. President, the Truth In Negotiations Act authorizes agencies to waive the requirement for contractors to provide certified cost or pricing data in ``exceptional circumstances.'' Under current law, however, a subcontractor under a contract or subcontract for which an exceptional circumstances waiver has been granted may still be subject to the requirement to provide certified cost or pricing data. The administration has requested a change to this law to provide that exceptional circumstances waivers extend not only to a contract or subcontract, but also to subcontractors under that contract or subcontract. The proposed amendment would give agencies the authority to grant waivers that extend to subcontractors under a contract or subcontract, but would not require that they do so in every case. In addition, it would make a technical change to correct a section reference. At the same time, the sponsors of the amendment are concerned by some of the statements made by the Administration in submitting the proposed amendment. The section-by-section analysis of the Administration proposal contains the following statements: The Federal Acquisition Streamlining Act revised [the Truth in Negotiations Act] to permit the head of the procuring activity to grant waivers, rather than the head of the agency. In response to the legislative change, the Federal Acquisition Regulation was revised to encourage the use of waivers when the contracting officer can determine the contract price to be fair and reasonable without the submission of cost or pricing data. As a result, more waivers are being granted today than previously. If the government does not require certified cost or pricing data from a prime contractor because contract price can be determined to be fair and reasonable without the submission of such data, then it should be presumed that there is no need to collect the data from lower tiers. The sponsors disagree with the implication that a waiver is appropriate whenever a contracting officer thinks that he can determine the contract price to be fair and reasonable without the submission of cost or pricing data. The Truth In Negotiations Act, as amended, still specifies that a waiver may be granted only in ``exceptional circumstances.'' It is the view of the sponsors that the term ``exceptional circumstances'' requires more than the mere belief of the contracting officer that it may be possible to determine the contract price to be fair and reasonable without the submission of cost or pricing data. For example, a waiver may be appropriate in circumstances where it would be possible to determine price reasonableness without the submission of cost or pricing data and the contracting officer determines that it would not be possible to enter a contract with a particular contractor in the absence of a waiver. The amendment would give agencies the flexibility to extend exceptional circumstances waivers to subcontractors when it is appropriate to do so. However, it is the expectation of the sponsors that the executive branch will clarify the circumstances in which an ``exceptional circumstances'' waiver may be granted, consistent with the understanding of Congress, as expressed in this statement.

Mr. THOMPSON. Mr. President, section 805 of the bill contains the ``Defense Commercial Pricing Management Improvement Act,'' which is designed to improve DoD's management practices and help address the spare parts pricing problems identified in the Armed Services Subcommittee on Acquisition & Technology hearing on March 18. Among other things, section 805 would require the Secretary of Defense to issue regulations clarifying the procedures and methods to be used in determining the reasonableness of prices charged for sole-source commercial items. The amendment would provide that the regulations should be issued on a government-wide basis, as a part of the Federal Acquisition Regulation and applicable to all federal procurements, rather than being issued by the Secretary of Defense and applicable only to DoD procurements. This change is consistent with the Senate's ten-year effort to place DoD and civilian agency procurements on an equal statutory footing.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, I think that the premises on which this legislation began were faulty. And I think they still are. I think it is basically the premise that in order for us to express our hatred for the tobacco companies and in order for us to express our love for our children, we must pass a tax increase in excess of $800 billion a year over a 25-year period, which is three times our annual defense budget. That, Mr. President, is a faulty premise. It is based on the faulty premise that we can raise taxes and raise the price of cigarettes to a point that it will discourage youth smoking; we can raise it high enough to do that but not so high as to create a black market. I understand that one out of every five packs of cigarettes sold in the State of California today are black-market cigarettes. It is based upon the premise that if you will raise prices of cigarettes that the youth of America will substantially decrease smoking, even though there is no evidence to indicate that. I yield the floor.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, on behalf of myself and a bipartisan group of senators, I introduce today the Federal Vacancies Reform Act of 1998. This legislation is needed to preserve one of the Senate's most important powers: the duty to advise and consent on presidential nominees. The Framers of the Constitution established a procedure for the appointment of all government officers: they were to be nominated by the President and confirmed by the Senate, unless Congress decided that the appointment of specified inferior officers was to be made by the President alone, the courts, or by department heads. The First Congress, however, recognized that vacancies would arise in executive positions, and enacted legislation providing for officials to temporarily exercise the powers of an office even without Senate confirmation. The law was adopted essentially in its current form in 1868, and was last amended in 1988. As amended, the first assistant or another Senate-confirmed individual can serve for 120 days after the vacancy, and, in addition, may serve beyond those 120 days if the President submits a nomination for that office to the Senate within those 120 days. Unfortunately, the Vacancies Act is honored more in the breach than in the observance. For the past 25 years, administrations of both parties have claimed that the Justice Department is exempt from the Vacancies Act. And since the Reagan Administration, other departments, at the behest of the Justice Department, make the same argument, purportedly based on the authority of the heads of each of the executive departments to delegate their authority to other department personnel. Following this argument to its logical end, none of the departments is bound by the Vacancies Act, so that the act is a dead letter. Certainly, this Administration has conducted itself as if the Vacancies Act applies to none of the departments. Each department has at least one temporary officer who has served more than 120 days before any nomination was sent to the Senate. Of the 320 executive department advise and consent positions, 64 are held by temporary officials. Of the 64, 43 have served longer than 120 days before any nomination was submitted to the Congress. The Commerce Department is the worst offender in number and in degree. For instance, the acting head of the Census Bureau is neither the first assistant nor a person who has been confirmed by the Senate, a mind-boggling violation of the law. Nor has a nomination been made, although the prior Census chief announced her departure more than five months ago. The government's important functions should be carried out by permanent officials. That means that the President must submit nominations and the Senate needs to provide its advice and consent. This administration seems not to want to subject its appointees to such scrutiny. Acting on that desire is unconstitutional and a violation of the Vacancies Act as well. The Appointments Clause is not a technical nicety. As the Supreme Court has stated, the Appointments Clause is designed to keep the Executive and Legislative Branches within their appropriate spheres, so as to better preserve individual liberty. The Governmental Affairs Committee recently held an oversight hearing on the Vacancies Act. In that hearing, it became apparent that the Administration was regularly acting in violation of the law, but faced no consequence for its actions. The Committee also heard testimony from Senators Byrd and Thurmond, who had each introduced bills designed to ensure compliance with the Vacancies Act through clarifying the scope of agencies covered and providing an enforcement mechanism. Our colleagues owe a debt of gratitude to Senators Byrd and Thurmond for raising these important issues and offering solutions to address them. I have found the approaches in the Byrd and Thurmond bills to have contributed importantly to the drafting of the legislation I introduce today. It is extremely important to ensure that the Vacancy Act period run from the date of the vacancy, to clarify that it covers all departments, and to impose a sanction for noncompliance. Subsequent to the introduction of the Byrd and Thurmond bills, the United States Court of Appeals for the District of Columbia Circuit issued a decision on the meaning of the Vacancies Act, approving the four year service of an acting head of the Office of Thrift Supervision as appointed by the departing head of the agency. Overruling several portions of that decision have become a priority. The legislation I introduce today provides that in the event of a vacancy in a position in an executive agency requiring the advice and consent of the Senate, the officer's first assistant is allowed to perform the functions and duties of the office on an acting basis, for up to 150 days. Under current law, the period is 120 days, but the vicissitudes of the modern vetting process appear to require that the time be lengthened, to my regret. Alternatively, the President may direct another person who has already received Senate confirmation to serve as the acting official for 150 days. To prevent these restrictions from being gamed, the bill provides that the acting officer must have been the first assistant for 180 of the 365 days preceding the vacancy. The length of temporary service can be extended beyond the 150 days if the President submits a nomination to the Senate for the vacant position. If the nomination is withdrawn, or if the Senate rejects or returns it, the acting official can serve only for 150 days after that event. The bill makes clear that the Vacancies Act applies to all offices in executive agencies for which appointment is required to be made by the President by and with the advice and consent of the President. Nonetheless, we do not write on a clean slate. There are a number of laws already on the books that provide a process by which persons can serve as acting officers when particular offices are vacant. In most instances, these officials can serve until a successor is confirmed, without regard to the Vacancies Act. The bill preserves those specific statutes, but, to clearly reject the position of the Justice Department, it expressly repudiates the contention that a law authorizing the head of a department to delegate or reassign duties among other officers is a statute that provides for the temporary filling of a specific office. For the future, Congress will have to expressly provide that it is superseding the Vacancies Act if it wishes to override the Vacancies Act as to the temporary filling of advise and consent provisions. The bill also establishes a second enforcement mechanism. If a nominee is not submitted to the Senate within 150 days of the vacancy, then the office is vacant until a nominee is submitted. While the routine functions of the office would be allowed to continue, those functions and duties that are specified to be performed by that official could only be performed by the head of the department. In fact, no specified duty of the officeholder that existed by regulation for the 180 days preceding the vacancy could be diminished in an effort to avoid the bill's vacant office provisions. However, if the President submits a nomination at any point after the 150 days, the acting officer would again be allowed to serve while the nomination was pending in the Senate, until confirmation, or until 150 days after the rejection, withdrawal, or return of the nomination. Actions taken by any acting official in violation of these provisions would be of no effect, and no one would be permitted to ratify the actions of the acting official that were taken in violation of the vacant office provisions. Enforcement is further enhanced by requiring each executive agency to report to the Comptroller General the existence of vacancies, the names of persons serving as acting officers and when such service began, the name of any nominee and when such nomination was submitted to the Senate, and the final disposition of the nomination. The Comptroller General will then notify the Congress, the President, and the Office of Personnel Management when the 150 day limitations have been reached. Mr. President, the Framers established a system for appointing important officials in which the President and the Senate would each play a role. Not only did the Framers wish to ensure that more than one person's wisdom was brought to the appointment process, but that the President, in selecting nominees, would be aware that they would face scrutiny. When a vacancy occurs in such an office, it is important to establish a process that permits the routine operation of the government to continue, but that will not allow the evasion of the Senate's constitutional authority to advise and consent to nominations. I am pleased that a number of my colleagues are joining with me to formulate a structure that will achieve these ends. I look forward to the Senate's passage of this legislation in the near future. I ask unanimous consent that the bill be printed in the Record.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, on behalf of myself and a bipartisan group of senators, I introduce today the Federal Vacancies Reform Act of 1998. This legislation is needed to preserve one of the Senate's most important powers: the duty to advise and consent on presidential nominees. The Framers of the Constitution established a procedure for the appointment of all government officers: they were to be nominated by the President and confirmed by the Senate, unless Congress decided that the appointment of specified inferior officers was to be made by the President alone, the courts, or by department heads. The First Congress, however, recognized that vacancies would arise in executive positions, and enacted legislation providing for officials to temporarily exercise the powers of an office even without Senate confirmation. The law was adopted essentially in its current form in 1868, and was last amended in 1988. As amended, the first assistant or another Senate-confirmed individual can serve for 120 days after the vacancy, and, in addition, may serve beyond those 120 days if the President submits a nomination for that office to the Senate within those 120 days. Unfortunately, the Vacancies Act is honored more in the breach than in the observance. For the past 25 years, administrations of both parties have claimed that the Justice Department is exempt from the Vacancies Act. And since the Reagan Administration, other departments, at the behest of the Justice Department, make the same argument, purportedly based on the authority of the heads of each of the executive departments to delegate their authority to other department personnel. Following this argument to its logical end, none of the departments is bound by the Vacancies Act, so that the act is a dead letter. Certainly, this Administration has conducted itself as if the Vacancies Act applies to none of the departments. Each department has at least one temporary officer who has served more than 120 days before any nomination was sent to the Senate. Of the 320 executive department advise and consent positions, 64 are held by temporary officials. Of the 64, 43 have served longer than 120 days before any nomination was submitted to the Congress. The Commerce Department is the worst offender in number and in degree. For instance, the acting head of the Census Bureau is neither the first assistant nor a person who has been confirmed by the Senate, a mind-boggling violation of the law. Nor has a nomination been made, although the prior Census chief announced her departure more than five months ago. The government's important functions should be carried out by permanent officials. That means that the President must submit nominations and the Senate needs to provide its advice and consent. This administration seems not to want to subject its appointees to such scrutiny. Acting on that desire is unconstitutional and a violation of the Vacancies Act as well. The Appointments Clause is not a technical nicety. As the Supreme Court has stated, the Appointments Clause is designed to keep the Executive and Legislative Branches within their appropriate spheres, so as to better preserve individual liberty. The Governmental Affairs Committee recently held an oversight hearing on the Vacancies Act. In that hearing, it became apparent that the Administration was regularly acting in violation of the law, but faced no consequence for its actions. The Committee also heard testimony from Senators Byrd and Thurmond, who had each introduced bills designed to ensure compliance with the Vacancies Act through clarifying the scope of agencies covered and providing an enforcement mechanism. Our colleagues owe a debt of gratitude to Senators Byrd and Thurmond for raising these important issues and offering solutions to address them. I have found the approaches in the Byrd and Thurmond bills to have contributed importantly to the drafting of the legislation I introduce today. It is extremely important to ensure that the Vacancy Act period run from the date of the vacancy, to clarify that it covers all departments, and to impose a sanction for noncompliance. Subsequent to the introduction of the Byrd and Thurmond bills, the United States Court of Appeals for the District of Columbia Circuit issued a decision on the meaning of the Vacancies Act, approving the four year service of an acting head of the Office of Thrift Supervision as appointed by the departing head of the agency. Overruling several portions of that decision have become a priority. The legislation I introduce today provides that in the event of a vacancy in a position in an executive agency requiring the advice and consent of the Senate, the officer's first assistant is allowed to perform the functions and duties of the office on an acting basis, for up to 150 days. Under current law, the period is 120 days, but the vicissitudes of the modern vetting process appear to require that the time be lengthened, to my regret. Alternatively, the President may direct another person who has already received Senate confirmation to serve as the acting official for 150 days. To prevent these restrictions from being gamed, the bill provides that the acting officer must have been the first assistant for 180 of the 365 days preceding the vacancy. The length of temporary service can be extended beyond the 150 days if the President submits a nomination to the Senate for the vacant position. If the nomination is withdrawn, or if the Senate rejects or returns it, the acting official can serve only for 150 days after that event. The bill makes clear that the Vacancies Act applies to all offices in executive agencies for which appointment is required to be made by the President by and with the advice and consent of the President. Nonetheless, we do not write on a clean slate. There are a number of laws already on the books that provide a process by which persons can serve as acting officers when particular offices are vacant. In most instances, these officials can serve until a successor is confirmed, without regard to the Vacancies Act. The bill preserves those specific statutes, but, to clearly reject the position of the Justice Department, it expressly repudiates the contention that a law authorizing the head of a department to delegate or reassign duties among other officers is a statute that provides for the temporary filling of a specific office. For the future, Congress will have to expressly provide that it is superseding the Vacancies Act if it wishes to override the Vacancies Act as to the temporary filling of advise and consent provisions. The bill also establishes a second enforcement mechanism. If a nominee is not submitted to the Senate within 150 days of the vacancy, then the office is vacant until a nominee is submitted. While the routine functions of the office would be allowed to continue, those functions and duties that are specified to be performed by that official could only be performed by the head of the department. In fact, no specified duty of the officeholder that existed by regulation for the 180 days preceding the vacancy could be diminished in an effort to avoid the bill's vacant office provisions. However, if the President submits a nomination at any point after the 150 days, the acting officer would again be allowed to serve while the nomination was pending in the Senate, until confirmation, or until 150 days after the rejection, withdrawal, or return of the nomination. Actions taken by any acting official in violation of these provisions would be of no effect, and no one would be permitted to ratify the actions of the acting official that were taken in violation of the vacant office provisions. Enforcement is further enhanced by requiring each executive agency to report to the Comptroller General the existence of vacancies, the names of persons serving as acting officers and when such service began, the name of any nominee and when such nomination was submitted to the Senate, and the final disposition of the nomination. The Comptroller General will then notify the Congress, the President, and the Office of Personnel Management when the 150 day limitations have been reached. Mr. President, the Framers established a system for appointing important officials in which the President and the Senate would each play a role. Not only did the Framers wish to ensure that more than one person's wisdom was brought to the appointment process, but that the President, in selecting nominees, would be aware that they would face scrutiny. When a vacancy occurs in such an office, it is important to establish a process that permits the routine operation of the government to continue, but that will not allow the evasion of the Senate's constitutional authority to advise and consent to nominations. I am pleased that a number of my colleagues are joining with me to formulate a structure that will achieve these ends. I look forward to the Senate's passage of this legislation in the near future. I ask unanimous consent that the bill be printed in the Record.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, today I am introducing the ``Regulatory Right-to-Know Act'' of 1998. I believe that this legislation will serve as an important tool to promote the public's right to know about the benefits and burdens of regulation; to increase the accountability of government to the people it serves; and, ultimately, to improve the quality of our government. This continues the effort begun by Senator Stevens, then the Chairman of the Governmental Affairs Committee, when he passed the Stevens Regulatory Accounting Amendment in 1996. This legislation would not change any statutory or regulatory standard; it simply would provide information to help the public, Congress and the President to understand the scope and performance of our regulatory system. As OMB stated in its first report under the Stevens Amendment, ``Over time, regulation . . . has become increasingly prevalent in our society, and the importance of our regulatory activities cannot be overstated.'' It is my hope that more information on the benefits and costs of regulation will help us make smarter decisions to get more of the good things that sensible regulation can deliver, and reduce needless waste and redtape at the same time. That's plain common sense. Regulations have played an important role in improving our quality of life--cleaner air, quality products, safer workplaces, and reliable economic markets--to name a few of the good things that sensible regulation can produce. Achieving these benefits does not come without cost. In its first regulatory accounting report, OMB estimated that the annual cost of regulation of the environment, health, safety and the economy is about $300 billion. Other studies, which include the full costs of paperwork and economic transfers, estimate that regulation costs about $700 billion annually. Those costs are passed on to American consumers and taxpayers through higher prices, diminished wages, increased taxes, or reduced government services. The tab for the average American household is thousands of dollars each year--$7,000 per year by some estimates. At the same time, the public wants and deserves better results from our regulatory system. As the costs of regulation rise with public expectations of better results, the need is greater than ever to get a handle on how regulatory programs are performing, so we can find ways for our government to perform better. It's no surprise that the seriousness of this need is not widely appreciated, because the costs of regulation are not as obvious as many other costs of government, such as the taxes we pay each year; and the benefits of regulation often are diffuse. But there is substantial evidence that the current regulatory system often misses opportunities for greater benefits and lower costs. As noted by the President's chief spokesperson on regulatory policy, Sally Katzen: Regrettably, the regulatory system that has been built up over the past five decades . . . is subject to serious criticism . . . [on the grounds] that there are too many regulations, that many are excessively burdensome, [and] that many do not ultimately provide the intended benefits. Our regulatory goals are too important, and our resources are too precious, to miss out on opportunities to do better. It's time to move toward a more open and accountable regulatory system. I am pleased to be introducing this bill with Senator Breaux. It's important that members from both sides of the aisle work together to solve these problems. I appreciate that Chairman Tom Bliley introduced a similar bill in the House last fall, and I look forward to working with him. Finally, I appreciate the effort that a few dedicated professionals put into OMB's first regulatory accounting report. While this report is certainly not perfect, it shows that regulatory accounting is doable and can help us better understand the benefits and burdens of regulation. Now let's do better. This bill will promote some important improvements, including: Making regulatory accounting a permanent requirement. Adding requirements for a more complete picture, including, to the extent feasible, the costs and benefits of particular programs, not just an aggregate picture, as well as an analysis of regulation's impacts on the State and local government, the private sector, and the federal government. Ensuring higher quality of information. Requirements for OMB guidelines and peer review should improve future reports. Ensuring better compliance with basic legislative requirements which the first report neglected. These deficiencies include failing to recommend improvements to current programs; failing to assess the indirect effects of regulation; failing to provide information on specific programs where feasible; and failing to provide a full accounting of all mandates. This bill will help address these problems. As OMB said in their first regulatory accounting report, ``regulations (like other instruments of government policy) have enormous potential for both good and harm.'' I believe that better information will help us to increase the benefits of regulation and decrease unnecessary waste and red tape. I think we need to work together to contribute to the success of government programs the public values, while enhancing the economic security and well-being of our families and communities. Mr. President, I ask unanimous consent that the ``Regulatory Right- to-Know Act'' be printed in the Record.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, today I am introducing the ``Regulatory Right-to-Know Act'' of 1998. I believe that this legislation will serve as an important tool to promote the public's right to know about the benefits and burdens of regulation; to increase the accountability of government to the people it serves; and, ultimately, to improve the quality of our government. This continues the effort begun by Senator Stevens, then the Chairman of the Governmental Affairs Committee, when he passed the Stevens Regulatory Accounting Amendment in 1996. This legislation would not change any statutory or regulatory standard; it simply would provide information to help the public, Congress and the President to understand the scope and performance of our regulatory system. As OMB stated in its first report under the Stevens Amendment, ``Over time, regulation . . . has become increasingly prevalent in our society, and the importance of our regulatory activities cannot be overstated.'' It is my hope that more information on the benefits and costs of regulation will help us make smarter decisions to get more of the good things that sensible regulation can deliver, and reduce needless waste and redtape at the same time. That's plain common sense. Regulations have played an important role in improving our quality of life--cleaner air, quality products, safer workplaces, and reliable economic markets--to name a few of the good things that sensible regulation can produce. Achieving these benefits does not come without cost. In its first regulatory accounting report, OMB estimated that the annual cost of regulation of the environment, health, safety and the economy is about $300 billion. Other studies, which include the full costs of paperwork and economic transfers, estimate that regulation costs about $700 billion annually. Those costs are passed on to American consumers and taxpayers through higher prices, diminished wages, increased taxes, or reduced government services. The tab for the average American household is thousands of dollars each year--$7,000 per year by some estimates. At the same time, the public wants and deserves better results from our regulatory system. As the costs of regulation rise with public expectations of better results, the need is greater than ever to get a handle on how regulatory programs are performing, so we can find ways for our government to perform better. It's no surprise that the seriousness of this need is not widely appreciated, because the costs of regulation are not as obvious as many other costs of government, such as the taxes we pay each year; and the benefits of regulation often are diffuse. But there is substantial evidence that the current regulatory system often misses opportunities for greater benefits and lower costs. As noted by the President's chief spokesperson on regulatory policy, Sally Katzen: Regrettably, the regulatory system that has been built up over the past five decades . . . is subject to serious criticism . . . [on the grounds] that there are too many regulations, that many are excessively burdensome, [and] that many do not ultimately provide the intended benefits. Our regulatory goals are too important, and our resources are too precious, to miss out on opportunities to do better. It's time to move toward a more open and accountable regulatory system. I am pleased to be introducing this bill with Senator Breaux. It's important that members from both sides of the aisle work together to solve these problems. I appreciate that Chairman Tom Bliley introduced a similar bill in the House last fall, and I look forward to working with him. Finally, I appreciate the effort that a few dedicated professionals put into OMB's first regulatory accounting report. While this report is certainly not perfect, it shows that regulatory accounting is doable and can help us better understand the benefits and burdens of regulation. Now let's do better. This bill will promote some important improvements, including: Making regulatory accounting a permanent requirement. Adding requirements for a more complete picture, including, to the extent feasible, the costs and benefits of particular programs, not just an aggregate picture, as well as an analysis of regulation's impacts on the State and local government, the private sector, and the federal government. Ensuring higher quality of information. Requirements for OMB guidelines and peer review should improve future reports. Ensuring better compliance with basic legislative requirements which the first report neglected. These deficiencies include failing to recommend improvements to current programs; failing to assess the indirect effects of regulation; failing to provide information on specific programs where feasible; and failing to provide a full accounting of all mandates. This bill will help address these problems. As OMB said in their first regulatory accounting report, ``regulations (like other instruments of government policy) have enormous potential for both good and harm.'' I believe that better information will help us to increase the benefits of regulation and decrease unnecessary waste and red tape. I think we need to work together to contribute to the success of government programs the public values, while enhancing the economic security and well-being of our families and communities. Mr. President, I ask unanimous consent that the ``Regulatory Right- to-Know Act'' be printed in the Record.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, it gives us great pleasure to bring to the Senate's attention one of the new premier events in the world of music: Chet Atkins' Musician Days. Known by many as ``Mr. Guitar,'' Chet Atkins is the most recorded solo instrumentalist in music history. As a studio musician, his work has gilded the records of artists from Elvis Presley to the Everly Brothers to Hank Williams. Chet has been named Musician of the Year nine times by the Country Music Awards and has won thirteen Grammies, more than any other artist in the history of country music. Now it's no secret that the State of Tennessee has provided the world with more than its share of great music, from the blues of Memphis' Beale Street to the bluegrass of Appalachia to the country sounds of Nashville. But it's also true, even in Tennessee, that we sometimes forget the performers who stand just outside of the spotlight, the musicians who accompany the stars but rarely take center stage. That gave Chet Atkins an idea: organize an event to honor the musicians, or, as Chet puts it, ``the people who make the singers sound good!'' I now yield to my colleague from Tennessee.

Mr. THOMPSON

Mr. THOMPSON. I have a question. It seems to me that we both agree that we have a bill that we do not like and that we have an arbitration provision in that bill that we do not like. That legislation has not passed yet. The Senator says we are doing all of these things--we might; we might not; that has not passed. Would it not be better for the Senator from Texas and me to join in trying to defeat that arbitration provision and trying to defeat that bill instead of adding to a bad provision an even worse provision that goes against our principles, that gets us involved in private litigation, and that causes people to have to send billing records up to the Judiciary Committee where we go through and try to justify some kind of an hourly rate?

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

Mr. THOMPSON. Thank you, Mr. President. Mr. President, I rise in opposition to this amendment, not because I favor the underlying bill. I do not favor the underlying bill. I want to specifically address this amendment and what is going on with regard to this amendment. We need to get back to the basic question of what we are all doing here, why we came here, and what we ought to be doing as U.S. Senators. We who pretend to call ourselves conservatives ought to really ask the question, whether or not we want to get into lawsuits that have already been decided pursuant to contracts that have already been executed between private practitioners of the law and sovereign States, and to go in and say that we are going to abrogate what you have done to private citizens agreeing to cases that have already been decided and say we will undo all of that. We, the Federal Government, we, the U.S. Senate, are going to get right into the middle of that and we are going to require you to send billing records to the Judiciary Committee that I sit on. I did not come to the U.S. Senate to review billing records from lawyers in private lawsuits. Now, we need to get away from deciding who the good guys are and the bad guys are and just jumping on the bad guys. Nobody likes trial lawyers. You heard a defense already about how great contingent fees are and they are necessary, and all that is true, and so forth. It is beside the point with regard to this. The point is really us. This particular amendment has nothing to do with the tobacco deal. This applies whether or not a company is making a deal with the government or not. It applies to Federal lawsuits. It applies to State lawsuits. This has nothing to do with the tax money we are going to be raising if this bill passes, which I will oppose. It is dipping into a completely different area that has nothing to do with the tobacco legislation because we feel like trial lawyers are getting fees that are too great. Mr. President, I don't care what the trial lawyers get, if it is something that is agreed to by the parties and is something that is supervised by the courts. It has been pointed out that in one case in Florida the courts found that the fee was outrageous. That is the very point. If a court determines that a fee is outrageous, they can set it aside. It is regulated by the courts. It is regulated by the States. Every State in this Union regulates attorneys' fees. If it is outrageous, if it is not justified, people can take a claim to the States. Should the Federal Government and should we on our side of the aisle, of all people, be urging the Federal Government to get into the middle of private lawsuits and deciding what fees ought to be in cases where there is a Federal court or a State court that has already decided, and has nothing to do with Federal legislation otherwise? I think that is tremendously bad policy. I think this whole tobacco approach, quite frankly, is bad policy. I think this idea of taxing waitresses and cab drivers in order to give these same lawyers attorneys' fees of any kind is a bad idea. But the tobacco companies are bad guys, the trial lawyers are bad guys, and we are forgetting the principles that we came up here and are supposed to be supporting; that is, let the Federal Government do what they are supposed to be doing, let individuals have individual responsibility, let sovereign States make the laws, if they want to, and let private litigants go to court and fight it out before a jury of their peers. Therefore, I oppose the amendment. I thank the Chair.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, despite the respect that I have for Members who are co-sponsors of this legislation, I must oppose S. 1605. I do not oppose this legislation because I believe that encouraging local law enforcement officers to be provided body armor is a poor idea. Rather, it is not an appropriate activity of the federal government. If this new grant program passes, we will once again encourage people in communities all across the country to drive on past city hall, drive on past the state capitol, drive to the airport, fly to Washington and ask the Congress to help them solve a local problem. I believe that local problems can and should be solved by local people. There is hardly any more local issue than the equipment of local law enforcement officers. Some localities are enlightened and have provided money for body armor. This bill penalizes them. Under this bill, residents of those communities, who have already paid taxed for body armor for their own law enforcement agents, would be taxed to pay for 50 percent of the cost of body armor of law enforcement in communities that have not taxed their citizens to pay for it. Well, as George Bernard Shaw said, ``Any government that robs Peter to pay Paul can always count on the support of Paul.'' The only purpose for which this money can be used by local government is to provide body armor. Communities that have not provided body armor and communities that have not managed to reduce their crime rates receive first preference for the award of the money. That certainly creates an unfortunate incentive. And it means that in the future, localities may forego important law enforcement efforts on the hope that if they wait a bit, taxpayers in other parts of the country will pay 50 percent of the cost. Under this bill, taxpayer money will be returned to the people who paid it, less the carrying charges and with strings attached. What if the locality or state would like to spend the money on some other purpose than body armor? They are prohibited from doing so. Even if a community that has not provided body armor has a more pressing law enforcement need, they cannot spend the money on anything but body armor. This is an unwarranted intrusion on federalism. Maybe we would help more if we left more tax money to remain in localities in the first place. This is exactly why the federal government should stay out of this. The era of big government is over I keep hearing, but here is a proposal to make it bigger. And somebody will have to pay for it with money that could have stayed right in the community where it was raised. If this bill passes, there will be lots of opportunity to pass the buck. Municipalities that do not provide body armor can pass the buck to Washington, saying that the federal government now has the responsibility of doing so. The federal government will point out that most of the funds will have to come from the states and localities. Fingers will point everywhere and accountability will rest nowhere. This is undesirable in a democracy. Therefore, I record my opposition to this legislation.