WASHINGTON – Following is text, as prepared for delivery, that Governmental Affairs Committee Chairman Joe Lieberman, D-Conn., delivered on the floor of the Senate Tuesday morning before a vote on the Lieberman-Daschle amendment to strike certain special interest provisions from the homeland security bill.
Mr. President, I rise to voice my support for this amendment, which I’m proud to co-sponsor with Senator Daschle.
I do so believing deeply in the urgent need for a Department of Homeland Security, and believing deeply that the vast majority of the underlying bill rises to the critical and difficult challenge of equipping our government to protect the American people from terrorism. The core of this bill is good. The core of this bill is smart. The core of this bill is vital.
But Mr. President, I must register my strong opposition to a number of the provisions in this bill which, in my view, threaten to do serious damage to an otherwise urgently necessary piece of legislation.
Some members of Congress have seized upon the likely passage of this bill as an opportunity to load it up with unwise, inappropriate, and hastily considered provisions, many of which protect special interests.
That’s a shame and an embarrassment. A common cause as urgent and weighty as this one should not be corrupted by a bevy of last minute favors, surprises, and slapdash attempts to address controversial problems, some of which are unrelated to homeland security. That may work in back rooms, but it should not be the way business is done on the floor of the U.S. Senate, especially not with an underlying responsibility as serious as protecting the American people from terrorism.
Think of this new Department that we’re trying to build as a house. We need this house and need it badly, because Homeland Security is now institutionally homeless in the federal government. There’s no one systematically and strategically setting priorities, coordinating resources, and following through with action. Everyone’s in charge, and therefore no one’s in charge. Those are the consequences of the institutional homelessness.
This bill constructs a solid house-one with smart layout and good construction. In all the most important ways, it’s very much like the blueprint some of us have been advocating for more than a year now. But the House Republican leadership has put some terrible carpet in one of the rooms. It’s painted another room with toxic paint. It’s messed up the electrical system and done damage to the plumbing.
I don’t necessarily oppose the substance of every one of the provisions I will discuss here-although I certainly do oppose some and have at least serious concerns about the others. But I do object to the method by which, and the spirit in which, they have found their way into what could have been and should have been a consensus piece of legislation.
Let me dispense with two myths here at the outset. First, some opponents of this amendment have suggested that to alter the underlying bill in any way will be to kill homeland security legislation in this. But this is just wrong. The House passed H.R. 5710, a new bill. Before Senator Daschle and I made the decision to offer this amendment, the leadership of both Houses understood that the House would need to act on the version of the bill sent to them by the Senate. The House has not adjourned for the year, and is in a position to pass items by unanimous consent that the Senate sends to them.
The only difference now is that if the special interest provisions are Stripped from the bill, the House now has an opportunity to clean Homeland Security bill.
Second, some of my colleagues are saying that a vote for this amendment is a vote against the President. That unfortunately reminds me of a fairly familiar refrain we heard frequently leading up to the elections-in which some on the other side of the aisle tried to turn national security issues into a loyalty test.
Mr. President, I believe that the seven extraneous provisions our amendment targets have hurt this bill. And I believe that, by essentially sneaking these measures into what could have and should have been a common cause, the Republican leadership has all but admitted that the provisions cannot withstand independent scrutiny. So no matter what some may say, it is our obligation not to simply hold our tongues, accept the bill as written, and go home. This is not the Iraqi Parliament, in which the chief executive’s directives must be swallowed whole. It is the United States Senate, and if we see fit to amend a piece of legislation to extricate a handful of odious and ill-considered provisions, that is not only our right but our responsibility.
This amendment would strike six specific provisions in the underlying bill and amend a seventh. None of these provisions go to the heart of the Department we want to and need to create. As I said, I am one of the strongest proponents for the underlying bill in this chamber. I’ve spent more than a year with Senator Specter and others trying to convince my colleagues to create this Department.
That’s precisely why these seven serious shortcomings frustrate me so. They are completely extraneous to the urgent mission before us.
Childhood Vaccine Liability Shield
First, this bill includes a surprise provision-one that wasn’t in any earlier version of homeland security legislation, and we’ve gone through at least six (Lieberman-Specter bill, initial GAC-reported bill, President’s proposal, revised GAC-reported bill, original House bill, Gramm-Miller)-that would dramatically alter the way certain vaccine preservatives are treated for liability purposes under the law.
To quickly summarize, the bill would take complaints about vaccine additives out of the courts and require them to be made through what’s called the Federal Vaccine Injury Compensation Program, which handles other vaccine-related claims. In addition, the provisions are retroactive. This would mean that a host of existing lawsuits would be interrupted-including claims involving the mercury-based preservative, thimerasol, which some have linked to rising rates of autism in children.
It’s not at all clear that thimerasol is responsible for autism. It’s not clear whether thimerasol manufacturers should be liable. It is not even clear whether these claims should be resolved in the courts or the Federal Vaccine Injury Compensation Program.
That’s not what this amendment is about. Let me be clear.
In fact, I often support liability protections for companies that design and manufacture life-saving products. In 1998, Senator McCain and I sponsored, and the Senate passed, the Biomaterials Access Assurance Act, which helped assure that patients would not lose access to implantable devices like brain shunts, pacemakers and defibrillators by giving the companies that manufacture their raw materials some liability protection.
And in this Congress, I introduced a bill that would offer a comprehensive package of incentives to biotech and pharmaceutical companies that develop vaccines, antidotes, and other countermeasures for biological and chemical weapons-a package that includes liability protections.
So this amendment is not a judgment on whether and to what degree those who manufacture vaccines or vaccine additives should be liable for the harm their products may cause.
What it’s about is respecting the seriousness and sensitivity of this issue, and respecting the fact that both House and Senate committees have been struggling to reach consensus on it for more than a year now. They have been working hard to craft a broad and balanced bill on childhood vaccines that would address all of these issues-that would help the families and give vaccine manufacturers reasonable protections.
This provision would pull the rug right out from under the committee deliberations, offering a quick and dirty answer that is sure to do more harm than good.
Indeed, I know that our distinguished House colleague Rep. Burton, who chairs the House Government Reform that has been holding hearings on this issue, is deeply concerned that if these quick-fix changes to the compensation program are made, as in this bill, without at the same time making the broader changes that we need to make to the Vaccine Injury Compensation Program, many families will be left completely in the lurch-without any compensation whatsoever. And because these provisions prematurely terminate ongoing litigation, we will not be able to simply undo these harmful effects in the next session.
Some of my colleagues, including Senator Frist, have tried to make the case that the provisions are necessary to maintain a plentiful vaccine supply in case of a bioterror attack. While I admire my friend from Tennessee and I respect his medical and scientific knowledge, I must say, I’m afraid he has misunderstood or misrepresented what our amendment would do.
Contrary to Senator Frist’s suggestion, the amendment does not alter the bill’s bioterrorism vaccine liability protections, including provisions to provide liability protections for the makers of smallpox vaccine. Let me repeat. Our amendment does not touch those provisions. We only strike Sections 1714 to1717, inserted at the very end of the bill-the provisions that apply to the unrelated issue of these childhood vaccine additives. Furthermore, the Vaccine Injury Compensation Program does not include bioterrorism vaccines and the House bill does not even take this opportunity to extend the program to these much-needed drugs.
[[And I must also strongly refute Senator Gramm’s suggestion that we will suddenly have to throw away all of our smallpox vaccine doses if we strike this narrow provision. That’s just pure fiction. The Vaccine Injury Compensation Program does not cover claims against smallpox vaccine or any other vaccine used in the fight against bioterrorism. Moreover, thimerasol has not been used at all since 1999, and the NIH confirms that none of the stores of smallpox vaccine nationwise contain it. So the Senator’s attempt to make a vote for our amendment a vote against bioterrorism preparedness carries no water whatsoever. The argument that we will have to throw away all of our smallpox doses in storage if we don’t provide retroactive indemnification for thimerasol is just wrong.]]
So let me repeat. Our amendment only strikes the extraneous and inappropriate language inserted at the very end of this bill, that which specifically targets childhood vaccines. And we do so because it’s wrong to try to force through a slipshod solution to this complex and controversial issue. This is a statement of principle.
In Friday’s Washington Post, a spokesman for Representative Armey admitted that this wasn’t something that the House leadership ever sought to include in the bill-it was something the White House requested. Fair enough, but why didn’t they ask for it before-sometime in the last half year-when we would have had the time to consider it carefully? The only answer I can imagine is that they did not believe it could withstand honest scrutiny, and hoped nobody would have the time, inclination, or political energy to challenge it.
Excuse the pun, but this provision is an additive. It is a harmful additive. And I hope we can remove it from the bill. We in the Senate owe the parents, children, and companies on all sides of this issue a serious solution-not some patchwork change of the law. We should strike this provision.
Another problematic provision we would strike involves companies that shift their headquarters offshore as a tax avoidance scheme and then seek to do business with the federal government. An amendment to our committee-approved bill that was offered by our esteemed late colleague Senator Wellstone and accepted by the Senate would have barred companies that have set up offshore tax havens from getting federal homeland security contracts, with the Secretary of the Department retaining the right to waive that prohibition for national security reasons.
This bill would essentially nullify that prohibition by expanding the list of criteria the Secretary can use in granting a waiver beyond simply national security reasons to include: preventing the loss of U.S. jobs, or preventing the government from incurring any additional costs that would otherwise not occur. I obviously support those aims, but adding these escape clauses is clearly an attempt to gut the Wellstone amendment.
If this provision is unaltered, we may as well not have the ban on doing business with these companies at all. A corporation that’s able to escape paying American taxes by setting up a shell headquarters in Bermuda or elsewhere will probably have lower overhead, and will probably be able to offer its goods or services to the government at a lower cost than its competitors. So that essentially puts us right back where we started. It’s no wonder this language did not appear in any previous version of the bill-either on the House side or the Senate side.
Mr. President, a vote for a Homeland Security Department need not and should not be a vote for giving government contracts to companies that are finding clever ways to evade their taxes. It should not be a vote against giving government contracts to companies that decide to stay honest and pay United States taxes like everybody else. I urge my colleagues to support our amendment, which would strike this unfortunate addition.
Transportation Security Regulations
Our amendment would also move to strike from the bill a measure that would require the Transportation Security Oversight Board to ratify within 90 days emergency security regulations issued by the Transportation Security Agency. If the oversight board does not ratify the regulations, under this bill, they would automatically lapse. Despite the TSA having decided that they are necessary, 90 days later, lacking the Board’s approval, they’d disappear.
Mr. President, this doesn’t make any sense. In the current climate, shouldn’t we be trying to find new ways to expedite and implement TSA rules, not ways to disrupt and derail them? This bill is contrary to new procedures that the Senate passed just a year ago in the aviation security bill. Under that law, regulations go into effect and remain in effect unless they are affirmatively disapproved by the Board. I think that’s a better system.
My esteemed colleague from Texas, Senator Gramm, has claimed that our amendment would strike from the underlying bill the one-year extension of the deadline by which all airlines must install new security scanning equipment. I don’t know whether he got that idea based on this provision or not; regardless, he is mistaken. We keep that extension in tact, and striking the new cumbersome approval process, as our amendment seeks to do, would have no effect whatsoever on it.
I urge my colleagues to strike this provision.
Airport Screening Company Immunity
Another provision would extend liability protection to companies that provided passenger and baggage screening in airports on September 11th.
But we in the Senate already carefully considered and rejected such liability protection. First, the airline bailout bill limited the liability of the airlines-but not of the security screeners, due to ongoing concerns about their role leading up to September 11th. Then, the conference report on the Transportation Security bill extended the liability limitations to others who might have been the target of lawsuits, such as aircraft manufacturers and airport operators, but explicitly considered and rejected limiting screeners’ liability.
Mr. President, the earlier Gramm-Miller substitute and the bipartisan Governmental Affairs Committee-approved legislation also left this provision out for the very same reasons.
Now, somehow, this provision is back again. Like that little mole you hit with the mallet in a whack-a-mole game, somehow this provision has reappeared.
I cannot support it. At this late hour, in this context, it is just inappropriate to reverse the Senate’s carefully considered judgment without clear justification. We must strike this provision.
Another unnecessary and overreaching provision our amendment seeks to strike would give the Secretary of the new Department broad authority to designate certain technologies as so-called “qualified anti-terrorism technologies.” His granting of this designation-which appears to be unilateral, and probably not subject to review by anyone-would entitle companies selling that technology to broad liability protection from any claim arising out of, relating to, or resulting from an act of terrorism, no matter how negligently-or even wantonly and willfully-the company acted.
The bill goes well beyond what Republicans were advocating just last month in the Gramm-Miller substitute, which would have provided sellers with indemnification, but wouldn’t have left many victims without any compensation at all, as this bill does. This bill seems to say that in many cases, the plaintiff can’t recover anything from the seller unless an injured plaintiff can prove that the seller of the product that injured him or her acted fraudulently or with willful misconduct in submitting information to the Secretary when the Secretary was deciding whether to certify the product.
Even in cases where a seller isn’t entitled to the benefit of that protection, the company still isn’t fully-or in many cases even partially-responsible for its actions, even if it knew there was something terribly wrong with its product . Let me say that again. This bill gives protection even to those sellers who knowingly put anti-terrorism on the market that they know won’t work to keep people safe against an attack. Perhaps worst of all, this measure would cap the seller’s liability at the limits of its insurance policy. In other words, if injured people were lucky enough to get through the first hurdle and even hold a faulty seller liable, they still could go completely uncompensated even if a liable seller has more than enough money to compensate them.
Again, I ask, is this really the kind of provision we want to fold up and cram into this vital legislation? I ask my colleagues on both sides of the aisle to stop, carefully consider the consequences, and then vote for our amendment, which would strike this provision.
Federal Advisory Committee Act
The substitute bill also unwisely and unnecessarily allows the Secretary to exempt the new Department’s advisory committees from the open meetings requirements and other requirements of the Federal Advisory Committee Act (FACA). I’m well aware that this isn’t a provision that will get big headlines-but it ought to raise some eyebrows.
Agencies throughout government make use of advisory committees that function under these open meetings requirements. Existing law is careful to protect discussions and documents that involve sensitive information-in fact, the FACA law currently applies successfully to the Department of Defense, the Department of Justice, the FBI, the State Department-even the secretive National Security Agency.
So why should the Department of Homeland Security alone be allowed to exempt its advisory committees from its requirements? Why should its advisory committees be allowed to meet in total secret with no public knowledge? Again, if those rules work for the Department of Defense and the National Security Agency, I think they can work for the Department of Homeland Security.
What’s the harm? Conceivably, this could allow the Secretary to create forums that operate in secret in which lobbyists for various special interests could advance their agendas and get back channel access with this and future Administrations, without concern that the public would ever find out-and that’s regardless of whether their discussions were about security, business, or anything else. I’m not suggesting that this is what the Administration intends, or what the authors of the bill intend, but the danger is real and must be recognized.
We all say, and say often, that we’re for “good government”-for openness, integrity, and accountability. But if we pass this bill unamended, few of us will be able to say with confidence that the new Department’s advisory committees are designed to be as independent, balanced, and transparent as possible. I know full well that the Homeland Security Department will deal with sensitive information involving life and death, but so does the National Security Agency. So does the FBI. So does the Department of Defense. Their advisory committees aren’t allowed to hide themselves away from the public. I hope my colleagues join with me to reject this unfortunate and short-sighted provision.
Finally, our amendment would alter a provision in the substitute bill creating a university-based homeland security research center. Now, I have nothing against creating a university research center focused on homeland security. There are currently many effective university center programs-centers for expertise and excellence-established through competitive processes by the National Science Foundation and other science agencies. And the science and technology division in this homeland security bill closely tracks what we proposed in the legislation that came out of the Governmental Affairs Committee-which would give the Department many exciting new tools to harness talent in our universities and companies and focus it on meeting the unprecedented challenge we face to out-think and out-innovate our enemies.
But there’s a problem with this particular proposal as it is written. Based on the fifteen criteria outlined in the bill, the research center that it would create is described so narrowly, through fifteen specific criteria, that it appears Texas A&M University has the inside track, to say the least, to get the funding and house the center. House aides have admitted as much to The Washington Post.
Mr. President, Texas A&M is a fine school that may be perfectly suited to run such a federal research center-but there are many other fine schools that may also be well suited to run a homeland security research center, and Congress should not predetermine the best site.
Science in this country has thrived over the years because, by and large, Congress has refused to intervene in science decisions. Science has thrived through peer review and competition over the best proposals-which are fundamentals of federal science policy. We are violating them here. This is nothing short of “science pork.”
This provision was strongly opposed by the Chairman of the House Science Committee. And it has been roundly criticized by the university community as an inappropriate Congressional intervention in science program selection.
My friend, the Senator from Texas, has suggested that a few other institutions conceivably could assemble the qualifications to meet the 15 criteria that Texas A&M has specified. But I urge him to look at the list, which is breathtaking in the particularity of its detail. And even if a handful of schools might meet in theory these requirements, that does not solve our problem. We face grave dangers here, lives are at risk. We should all agree that we need to apply the most competitive possible process, the one that brings our best scientific brainpower brought to bear on this problem.
Suppose for the sake of argument that a few other schools technically do qualify. Then think about the agency employee, sitting at his desk at the new department, who receives the application from Texas A&M. A&M meets all the criteria specified in the statue, and meets them to a tee. The employee knows that Rep. DeLay wants this done. Realistically, how do we think this decision will turn out? We know how it will turn out.
When it comes to making these research funding decisions, we need a playing field that’s truly level-not one that only looks level when you tilt your head. Perhaps that’s why previous versions of this bill were wise enough not to include this provision. The bipartisan Senate Governmental Affairs Committee bill did not make this mistake. Nor did Senator Gramm include them in his earlier Gramm-Miller substitute. I have worked over the years on science policy issues and legislation with Senator Gramm, and I hasten to point out that this provision certainly did not originate with him. He has a strong understanding of the importance of strong science to our nation’s economic and social well-being, of strong federal support for science, and of the need for competitive funding decisions that are based on sound peer review. These provisions did not originate with him.
Our amendment keeps the university-based science center program. However, it removes the list of highly-specific criteria that appear to direct it to a particular university. This can and should be a good program to enable academic talent to assist us in securing our homeland. However, it should be an open and competitive program where all the interested universities in all our states can compete for this funding, with the best, most qualified contender or contenders selected. To strike this provision is to reaffirm the basic values of good science-of competition in federal research funding, which has been and must stay a mainstay of our policy. That’s the way we get the best science, not by making Congressional allocations to particular institutions.
Mr. President, I was under the impression that this homeland security bill would be clean. What does that mean? That it wouldn’t be, for lack of a better word, mucked up with lots of extraneous provisions that are marginally relevant or irrelevant to the central mission of this department, which of course is protecting the American people from 21st Century terrorism with every ounce of talent, every tool, every technology at our disposal.
I understand the legislative process. I know that, as a wise person once said, compromise is what makes nations great and marriages happy. I did not expect this substitute bill to look exactly like the bipartisan bill approved by the Governmental Affairs Committee I am privileged to chair.
But I did expect that this bill would be clean-and clean it is not. I believe passionately in the need to create a Homeland Security Department. And I recognize and appreciate the many good things in this bill. It has moved much closer to our vision of how to combine our strengths and minimize our weaknesses on intelligence to protect the American people from terrorism. So too has it embraced our creative and comprehensive vision of the new Department’s science and technology division. And when we step back and look at the big picture, it looks pretty good. And more important than looking good, it looks and is necessary to protect the American people.
But these flaws are real. They are serious. And they are utterly unnecessary.
Luckily, they are easy for us to fix. One amendment, one vote. I once again urge my fellow Senators to pass this amendment.
I thank the chair and yield the floor.