Floor Statements

Mr. President, I am pleased to join Senators Akaka, Leahy, Durbin and Dayton today in introducing the Federal Employees Protection of Disclosures Act. Our bill strengthens the law protecting employees who blow the whistle on fraud, waste, and abuse in Federal programs.

Whistleblowers play a crucial role in ensuring that Congress and the public are aware of serious cases of waste,

fraud, and mismanagement in government. Whistleblowing is never more important than when our national security is at stake. Since the terrorist attacks of September 11, 2001, courageous individuals have stepped forward to blow the whistle on significant lapses in our efforts to protect the United States against potential future attacks. Most notably, FBI Agent Coleen Rowley alerted Congress to serious institutional problems at the FBI and their impact on the agency's ability to effectively investigate and prevent terrorism.

In another example, two Border Patrol agents from my State of Michigan, Mark Hall and Bob Lindemann, risked their careers when they blew the whistle on Border Patrol and INS policies that were compromising security on the Northern Border. Their disclosure led to my holding a hearing at the Permanent Subcommittee on Investigations in November 2001, that exposed serious deficiencies in the way Border Patrol and INS were dealing with aliens who were arrested while trying to enter the country illegally. Since the hearing, some of the most troublesome policies have been changed, improving the security situation and validating the two agents' concerns. Despite the fact that their concerns proved to be dead on, shortly after they blew the whistle, disciplinary action was proposed against the two agents. Fortunately in this case, whistleblower protections worked. The Office of Special Counsel conducted an investigation and the decision to discipline the agents was reversed. However, that disciplinary action was proposed in the first place is a troubling reminder of how important it is for us to both strengthen protections for whistleblowers and empower the Office of Special Counsel to discipline managers who seek to muzzle employees.

Agent Rowley, Mark Hall and Bob Lindemann are simply the latest in a long line of Federal employees who have taken great personal risks in blowing the whistle on government waste, fraud, and mismanagement. Congress has long recognized the obligation we have to protect a Federal employee when he or she discloses evidence of wrongdoing in a federal program. If an employee reasonably believes that a fraud or mismanagement is occurring, and that employee has the courage and the sense of responsibility to make that fraud or mismanagement known, it is our duty to protect the employee from any reprisal. We want federal employees to identify problems so we can fix them, and if they fear reprisal for doing so, then we are not only failing to protect the whistleblower, but we are also failing to protect the taxpayer.

I sponsored the Whistleblower Protection Act in 1989 which strengthened and clarified whistleblower rights, as well as the bill passed by Congress to strengthen the law further in 1994. Unfortunately, however, repeated holdings by the United States Court of Appeals for the Federal Circuit have corrupted the intent of Congress, with the result that additional clarifying language is sorely needed. The case of LaChance versus White represents perhaps the most notable example of the Federal Circuit's misinterpretation of the whistleblower law.

In LaChance, decided on May 14, 1999, the court imposed an unfounded and virtually unattainable standard on Federal employee whistleblowers in proving their cases. In that case, John E. White was an education specialist for the Air Force who spoke out against a new educational system that purported to mandate quality standards for schools contracting with the Air Force bases. White criticized the new system as counterproductive because it was too burdensome and seriously reduced the education opportunities available on base. After making these criticisms, local agency officials reassigned White, relieving him of his duties and allegedly isolating him. However, after an independent management review supported White's concerns, the Air Force canceled the program White had criticized. White appealed the reassignment in 1992 and the case has been in litigation ever since.

The administrative judge initially dismissed White's case, finding that his disclosures were not protected by the Whistleblower Protection Act. The MSPB, however, reversed the administrative judge's decision and remanded the case back to the administrative judge, holding that since White disclosed information he reasonably believed evidenced gross mismanagement, this disclosure was protected under the Act. On remand, the administrative judge found that the Air Force had violated the Whistleblower Protection Act and ordered the Air Force to return White to his prior status; the MSPB affirmed the decision of the administrative judge. OPM petitioned the Federal Circuit for a review of the board's decision. The Federal Circuit subsequently reversed the MSPB's decision, holding that there was not adequate evidence to support a violation under the Whistleblower Protection Act. The Federal Circuit held that the evidence that White was a specialist on the subject at issue and aware of the alleged improper activities and that his belief was shared by other employees was not sufficient to meet the ``reasonable belief'' test in the law. The court held that ``the board must look for evidence that it was reasonable to believe that the disclosures revealed misbehavior'' by the Air Force. The court went on to say: ``In this case, review of the Air Force's policy and implementation via the QES standards might well show them to be entirely appropriate, even if not the best option. Indeed, this review would start out with a presumption that public officers perform their duties correctly, fairly, in good faith, and in accordance with the law and governing regulations. . . . And this presumption stands unless there is ``irrefragable proof to the contrary'.''

It was appropriate for the Federal Circuit to remand the case to the MSPB to have it reconsider whether it was reasonable for White to believe that what the Air Force did in this case involved gross mismanagement. However, the Federal Circuit went on to impose a clearly erroneous and excessive standard for him to demonstrate his ``reasonable belief''--requiring him to provide ``irrefragable'' proof that the Air Force had engaged in gross mismanagement.

Irrefragable means ``undeniable, incontestable, incontrovertible, incapable of being overthrown.'' How can a Federal employee meet a standard of ``irrefragable'' in proving gross mismanagement? It is a virtually impossible standard of proof to meet. Moreover, there is nothing in the law or legislative history that even suggests such a standard applies to the Whistleblower Protection Act. The intent of the law is not for a Federal employee to act as an investigator and compile ``irrefragable'' proof that the Federal Government, in fact, committed fraud, waste or abuse. Rather, under the clear language of the statute, the employee needs only to have ``a reasonable belief'' that there is fraud, waste or abuse occurring in order to make a protected disclosure.

LaChance is only one example of the Federal Circuit misinterpreting the law. Our bill corrects LaChance and as well as several other Federal Circuit holdings. In addition, the bill strengthens the Office of Special Counsel and creates additional protections for federal employees who are retaliated against for blowing the whistle.

One of the most important issues addressed in the bill is to clarify again that the law is intended to protect a broad range of whistleblower disclosures. The legislative history supporting the 1994 Whistleblower Protection Act amendments emphasized: ``[I]t also is not possible to further clarify the clear language in section 2302(b)(8) that protection for ``any'' whistleblowing disclosure truly means ``any.'' A protected disclosure may be made as part of an employee's job duties, may concern policy or individual misconduct, and may be oral or written and to any audience inside or outside the agency, without restriction to time, place, motive or content.''

Despite this clear Congressional intent that was clearly articulated in 1994, the Federal Circuit has acted to push a number of whistleblower disclosures outside the protections of the whistleblower law. For example, in Horton versus the Department of the Navy, the Federal Circuit ruled that a whistleblower's disclosures to co-workers, or to the wrong-doer, or to a supervisor were not protected by the WPA. In Willis versus the Department of Agriculture, the court ruled that a whistleblower's disclosures to officials in

the agency chain of command or those made in the course of normal job duties were not protected. In Huffman versus Office of Personnel Management, the Federal Circuit reaffirmed Horton and Willis. And in Meuwissen versus Department of Interior, the Federal Circuit held that a whistleblower's disclosures of previously known information do not qualify as ``disclosures'' under the WPA. All of these rulings violate clear Congressional intent to afford broad protection to whistleblower disclosures.

In order to make it clear that any lawful disclosure that an employee or job applicant reasonably believes is evidence of waste, fraud, abuse, or gross mismanagement is covered by the WPA, the bill codifies previous statements of Congressional intent. Using the 1994 legislative history, it amends the whistleblower statute to cover any disclosure of information without restriction to time, place, form, motive or context, or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee's duties that the employee or applicant reasonably believes is credible evidence of any violation of any law, rule, or regulation, or other misconduct specified in the whistleblower law. I want to emphasize here that, other than the explicitly listed exceptions identified in the statute, we intend for there to be no exceptions, inferred or otherwise, as to what is a protected disclosure. And the prohibition on inferred exceptions is intended to apply to all protected speech categories in section 2302(b)(8) of the law. The intent here, again, is to make it clear that when the WPA speaks of protecting disclosures by federal employees ``any'' means ``any.''

The bill also addresses the clearly erroneous standard established by the Federal Circuit's LaChance decision I mentioned earlier. Rather than needing ``irrefragable proof'' to overcome the presumption that a public officer performed his or her duties correctly, fairly, in good faith, and in accordance with the law and regulations, the bill makes it clear that the whistleblower can rebut this presumption with ``substantial evidence.'' This burden of proof is a far more reasonable and appropriate standard for whistleblowing cases.

In the 1994 WPA amendments, Congress attempted to expand relief for whistleblowers by replacing ``compensatory'' damages with all direct or indirect ``consequential'' damages. Again, despite clear Congressional intent, the Federal Circuit has narrowed the scope of relief available to whistleblowers who have been hurt by adverse personnel actions. Our legislation would clarify the law to provide whistleblowers with relief for ``compensatory or consequential damages.''

The Federal Circuit's repeated misinterpretations of the whistleblower law are unacceptable and demand Congressional action. In response to the court's inexplicable and inappropriate rulings, our bill would suspend for five years the Federal Circuit's exclusive jurisdiction over whistleblower appeals. It would instead allow a whistleblower to file a petition to review a final order or final decision of the MSPB in the Federal Circuit or in any other United States appellate court of competent jurisdiction as defined under 5 U.S.C. 7703(b)(2). In most cases, using another court would mean going to the federal circuit where the contested personnel action took place. This five year period would allow Congress to evaluate whether other appellate courts would issue whistleblower decisions which are consistent with the Federal Circuit's interpretation of WPA protections and guide Congressional efforts to clarify the law if necessary.

In addition to addressing jurisdictional issues and troublesome Federal Circuit precedents, our bill would also make important additions to the list of protected disclosures. First, it would subject certain disclosures of classified information to whistleblower protections. However, in order for a disclosure of classified information to be protected, the employee would have to possess a reasonable belief that the disclosure was direct and specific evidence of a violation of law, rule or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, a substantial and specific danger to public health or safety, or a false statement to Congress on an issue of material fact. A whistleblower must also limit the disclosure to a member of Congress or staff of the executive or legislative branch holding the appropriate security clearance and authorized to receive the information disclosed. Federal agencies covered by the WPA would be required to establish a process to provide confidential advice to employees on how to lawfully make a protected disclosure of classified information to Congress.

Current law permits Federal employees to file a case at the MSPB when they feel that a manager has taken a personnel action against them in retaliation for blowing the whistle. The legislation would add three new personnel actions to the list of adverse actions that cannot be taken against whistleblowers for engaging in protected activity. These actions would include enforcement of any nondisclosure policy, form or agreement against a whistleblower for making a protected disclosure; the suspension, revocation, or other determination relating to a whistleblower's security clearance; and an investigation of an employee or applicant for employment if taken due to their participation in whistleblowing activity.

It is important to note that, if it is demonstrated that a security clearance was suspended or revoked in retaliation for whistleblowing, the legislation limits the relief that the MSPB and reviewing court can order. The bill specifies that the MSPB or reviewing court may issue declaratory and other appropriate relief but may not direct a security clearance to be restored. Appropriate relief may include back pay, an order to reassign the employee, attorney fees, or any other relief the Board or court is authorized to provide for other prohibited personnel practices. In addition, if the Board finds an action on a security clearance to have been illegal, it may bar the agency from directly or indirectly taking any other personnel action based on that illegal security clearance action. Our legislation would also require the agency to review and provide a report to Congress detailing the circumstances of the agency's security clearance decision, and authorizes expedited MSPB review of whistleblower cases where a security clearance was revoked or suspended. The latter is important because a person whose clearance has been suspended or revoked and whose job responsibilities require clearance may be unable to work while their case is being considered.

Our bill would also add two prohibited personnel practices to the whistleblower law. First, it would codify the ``anti-gag'' provision that has been in force since 1988, by virtue of its inclusion in appropriations bills. Second, it would prohibit a manager from initiating an investigation of an employee or applicant for employment because they engaged in a protected activity, including whistleblowing.

Another issue addressed in the bill involves certain employees who are excluded from the WPA. Among these are employees who hold ``confidential policy-making positions.'' In 1994, Congress amended the WPA to keep agencies from designating employees confidential policymakers after the employees filed whistleblower complaints. The WPA also allows the President to exclude from WPA jurisdiction any agency whose principal function is the conduct of foreign intelligence or counterintelligence activities. Our legislation maintains this authority but makes it clear that a decision to exclude an agency from WPA protections must also be made prior to a personnel action being taken against a whistleblower from that agency. This provision is necessary to ensure that agencies cannot argue that employees are exempt from whistleblower protections after an employee files a claim that they were retaliated against.

Another key section of the bill would strengthen the Office of Special Counsel. OSC is the independent federal agency responsible for investigating and prosecuting federal employee complaints of whistleblower retaliation. Current law, however, limits OSC's ability to effectively enforce and defend whistleblower laws. For example, the law provides the OSC with no authority to request the Merit Systems Protection Board to reconsider one of its decisions or to seek appellate review of an MSPB decision. Even when

another party petitions for a review of a MSPB decision, OSC is typically denied the right to participate in the proceedings.

Our bill would provide explicit authority for the Office of Special Counsel to appear in any civil action brought in connection with the whistleblower law. In addition, it would authorize OSC to obtain circuit court review of any MSPB order in a whistleblowing case if the OSC determines the Board erred and the case would have a substantial impact on the enforcement of the whistleblower statute. In a letter to me addressing these provisions, Special Counsel Elaine Kaplan said, ``I believe that these changes are necessary, not only to ensure OSC's effectiveness, but to address continuing concerns about the whittling away of the WPA's protections by narrow judicial interpretations of the law.'' I ask unanimous consent that the OSC letter be printed in the Record.

OSC currently has the authority to pursue disciplinary action against managers who retaliate against whistleblowers. However, Federal Circuit decisions, like LaChance, have undermined the agency's ability to successfully pursue such cases. The Special Counsel has said that ``change is necessary in order to ensure that the burden of proof in these cases is not so onerous as to make it virtually impossible to secure disciplinary action against retaliators.'' In addition to it being difficult to win, if the OSC loses a disciplinary case, it has to pay the legal fees of those against whom OSC initiates disciplinary action. In its letter, OSC said that ``the specter of having to pay large attorney fee awards . . . is a significant obstacle to our ability to use this important authority to hold managers accountable.'' Our bill addresses these problems by establishing a reasonable burden of proof for disciplinary actions and requiring the employing agency, not the OSC, to reimburse the prevailing party for attorney fees in a disciplinary proceeding.

Finally, the bill addresses a new issue that has arisen in connection

with the recent enactment of the Homeland Security Act or HSA. To evaluate the vulnerability to terrorist attack of certain critical infrastructure such as chemical plants, computer networks and other key facilities, the HSA asks private companies that own these facilities to submit unclassified information about them to the government. In doing so, the law also created some ambiguity on the question of whether federal employee whistleblowers would be protected by the WPA if they should disclose information that has been independently obtained by the whistleblower about such facilities but which may also have been disclosed to the government as under the critical infrastructure information program.

While I believe it was Congress' intent to extend whistleblower protections to federal employees who disclose such independently obtained information, the law's ambiguities are troublesome in the context of the tendency of the Federal Circuit to narrowly construe the scope of protections afforded by the WPA. Our bill would thus clarify that whistleblower protections do extend to federal employees who disclose independently obtained information that may also have been disclosed to the government as part of the critical infrastructure information program.

We need to encourage federal employees to blow the whistle on waste, fraud and abuse in federal government agencies and programs. These people take great risks and often face enormous obstacles in doing what they believe is right. The Congress and the country owe a particular debt of gratitude to those whistleblowers who put their careers on the line to protect national security. Since September 11, 2001, we have seen a number of examples of how crucial people like Coleen Rowley, Mark Hall and Bob Lindemann are to keeping our country safe. I request unanimous consent to print a letter from Agent Rowley in the Record. In the letter she says that when she blew the whistle, she was lucky enough to garner the support of many of her colleagues and members of Congress. However, her letter warns that for every Coleen Rowley, ``there are many more who do not benefit from the relative safety of public notoriety.'' It is to protect those responsible, courageous many that we offer this legislation. We need more like them.

I ask unanimous consent to print in the Record a section- by-section explanation of the bill.

Mr. President, I am pleased to join Senators Akaka, Leahy, Durbin and Dayton today in introducing the Federal Employees Protection of Disclosures Act. Our bill strengthens the law protecting employees who blow the whistle on fraud, waste, and abuse in Federal programs.

Whistleblowers play a crucial role in ensuring that Congress and the public are aware of serious cases of waste,

fraud, and mismanagement in government. Whistleblowing is never more important than when our national security is at stake. Since the terrorist attacks of September 11, 2001, courageous individuals have stepped forward to blow the whistle on significant lapses in our efforts to protect the United States against potential future attacks. Most notably, FBI Agent Coleen Rowley alerted Congress to serious institutional problems at the FBI and their impact on the agency's ability to effectively investigate and prevent terrorism.

In another example, two Border Patrol agents from my State of Michigan, Mark Hall and Bob Lindemann, risked their careers when they blew the whistle on Border Patrol and INS policies that were compromising security on the Northern Border. Their disclosure led to my holding a hearing at the Permanent Subcommittee on Investigations in November 2001, that exposed serious deficiencies in the way Border Patrol and INS were dealing with aliens who were arrested while trying to enter the country illegally. Since the hearing, some of the most troublesome policies have been changed, improving the security situation and validating the two agents' concerns. Despite the fact that their concerns proved to be dead on, shortly after they blew the whistle, disciplinary action was proposed against the two agents. Fortunately in this case, whistleblower protections worked. The Office of Special Counsel conducted an investigation and the decision to discipline the agents was reversed. However, that disciplinary action was proposed in the first place is a troubling reminder of how important it is for us to both strengthen protections for whistleblowers and empower the Office of Special Counsel to discipline managers who seek to muzzle employees.

Agent Rowley, Mark Hall and Bob Lindemann are simply the latest in a long line of Federal employees who have taken great personal risks in blowing the whistle on government waste, fraud, and mismanagement. Congress has long recognized the obligation we have to protect a Federal employee when he or she discloses evidence of wrongdoing in a federal program. If an employee reasonably believes that a fraud or mismanagement is occurring, and that employee has the courage and the sense of responsibility to make that fraud or mismanagement known, it is our duty to protect the employee from any reprisal. We want federal employees to identify problems so we can fix them, and if they fear reprisal for doing so, then we are not only failing to protect the whistleblower, but we are also failing to protect the taxpayer.

I sponsored the Whistleblower Protection Act in 1989 which strengthened and clarified whistleblower rights, as well as the bill passed by Congress to strengthen the law further in 1994. Unfortunately, however, repeated holdings by the United States Court of Appeals for the Federal Circuit have corrupted the intent of Congress, with the result that additional clarifying language is sorely needed. The case of LaChance versus White represents perhaps the most notable example of the Federal Circuit's misinterpretation of the whistleblower law.

In LaChance, decided on May 14, 1999, the court imposed an unfounded and virtually unattainable standard on Federal employee whistleblowers in proving their cases. In that case, John E. White was an education specialist for the Air Force who spoke out against a new educational system that purported to mandate quality standards for schools contracting with the Air Force bases. White criticized the new system as counterproductive because it was too burdensome and seriously reduced the education opportunities available on base. After making these criticisms, local agency officials reassigned White, relieving him of his duties and allegedly isolating him. However, after an independent management review supported White's concerns, the Air Force canceled the program White had criticized. White appealed the reassignment in 1992 and the case has been in litigation ever since.

The administrative judge initially dismissed White's case, finding that his disclosures were not protected by the Whistleblower Protection Act. The MSPB, however, reversed the administrative judge's decision and remanded the case back to the administrative judge, holding that since White disclosed information he reasonably believed evidenced gross mismanagement, this disclosure was protected under the Act. On remand, the administrative judge found that the Air Force had violated the Whistleblower Protection Act and ordered the Air Force to return White to his prior status; the MSPB affirmed the decision of the administrative judge. OPM petitioned the Federal Circuit for a review of the board's decision. The Federal Circuit subsequently reversed the MSPB's decision, holding that there was not adequate evidence to support a violation under the Whistleblower Protection Act. The Federal Circuit held that the evidence that White was a specialist on the subject at issue and aware of the alleged improper activities and that his belief was shared by other employees was not sufficient to meet the ``reasonable belief'' test in the law. The court held that ``the board must look for evidence that it was reasonable to believe that the disclosures revealed misbehavior'' by the Air Force. The court went on to say: ``In this case, review of the Air Force's policy and implementation via the QES standards might well show them to be entirely appropriate, even if not the best option. Indeed, this review would start out with a presumption that public officers perform their duties correctly, fairly, in good faith, and in accordance with the law and governing regulations. . . . And this presumption stands unless there is ``irrefragable proof to the contrary'.''

It was appropriate for the Federal Circuit to remand the case to the MSPB to have it reconsider whether it was reasonable for White to believe that what the Air Force did in this case involved gross mismanagement. However, the Federal Circuit went on to impose a clearly erroneous and excessive standard for him to demonstrate his ``reasonable belief''--requiring him to provide ``irrefragable'' proof that the Air Force had engaged in gross mismanagement.

Irrefragable means ``undeniable, incontestable, incontrovertible, incapable of being overthrown.'' How can a Federal employee meet a standard of ``irrefragable'' in proving gross mismanagement? It is a virtually impossible standard of proof to meet. Moreover, there is nothing in the law or legislative history that even suggests such a standard applies to the Whistleblower Protection Act. The intent of the law is not for a Federal employee to act as an investigator and compile ``irrefragable'' proof that the Federal Government, in fact, committed fraud, waste or abuse. Rather, under the clear language of the statute, the employee needs only to have ``a reasonable belief'' that there is fraud, waste or abuse occurring in order to make a protected disclosure.

LaChance is only one example of the Federal Circuit misinterpreting the law. Our bill corrects LaChance and as well as several other Federal Circuit holdings. In addition, the bill strengthens the Office of Special Counsel and creates additional protections for federal employees who are retaliated against for blowing the whistle.

One of the most important issues addressed in the bill is to clarify again that the law is intended to protect a broad range of whistleblower disclosures. The legislative history supporting the 1994 Whistleblower Protection Act amendments emphasized: ``[I]t also is not possible to further clarify the clear language in section 2302(b)(8) that protection for ``any'' whistleblowing disclosure truly means ``any.'' A protected disclosure may be made as part of an employee's job duties, may concern policy or individual misconduct, and may be oral or written and to any audience inside or outside the agency, without restriction to time, place, motive or content.''

Despite this clear Congressional intent that was clearly articulated in 1994, the Federal Circuit has acted to push a number of whistleblower disclosures outside the protections of the whistleblower law. For example, in Horton versus the Department of the Navy, the Federal Circuit ruled that a whistleblower's disclosures to co-workers, or to the wrong-doer, or to a supervisor were not protected by the WPA. In Willis versus the Department of Agriculture, the court ruled that a whistleblower's disclosures to officials in

the agency chain of command or those made in the course of normal job duties were not protected. In Huffman versus Office of Personnel Management, the Federal Circuit reaffirmed Horton and Willis. And in Meuwissen versus Department of Interior, the Federal Circuit held that a whistleblower's disclosures of previously known information do not qualify as ``disclosures'' under the WPA. All of these rulings violate clear Congressional intent to afford broad protection to whistleblower disclosures.

In order to make it clear that any lawful disclosure that an employee or job applicant reasonably believes is evidence of waste, fraud, abuse, or gross mismanagement is covered by the WPA, the bill codifies previous statements of Congressional intent. Using the 1994 legislative history, it amends the whistleblower statute to cover any disclosure of information without restriction to time, place, form, motive or context, or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee's duties that the employee or applicant reasonably believes is credible evidence of any violation of any law, rule, or regulation, or other misconduct specified in the whistleblower law. I want to emphasize here that, other than the explicitly listed exceptions identified in the statute, we intend for there to be no exceptions, inferred or otherwise, as to what is a protected disclosure. And the prohibition on inferred exceptions is intended to apply to all protected speech categories in section 2302(b)(8) of the law. The intent here, again, is to make it clear that when the WPA speaks of protecting disclosures by federal employees ``any'' means ``any.''

The bill also addresses the clearly erroneous standard established by the Federal Circuit's LaChance decision I mentioned earlier. Rather than needing ``irrefragable proof'' to overcome the presumption that a public officer performed his or her duties correctly, fairly, in good faith, and in accordance with the law and regulations, the bill makes it clear that the whistleblower can rebut this presumption with ``substantial evidence.'' This burden of proof is a far more reasonable and appropriate standard for whistleblowing cases.

In the 1994 WPA amendments, Congress attempted to expand relief for whistleblowers by replacing ``compensatory'' damages with all direct or indirect ``consequential'' damages. Again, despite clear Congressional intent, the Federal Circuit has narrowed the scope of relief available to whistleblowers who have been hurt by adverse personnel actions. Our legislation would clarify the law to provide whistleblowers with relief for ``compensatory or consequential damages.''

The Federal Circuit's repeated misinterpretations of the whistleblower law are unacceptable and demand Congressional action. In response to the court's inexplicable and inappropriate rulings, our bill would suspend for five years the Federal Circuit's exclusive jurisdiction over whistleblower appeals. It would instead allow a whistleblower to file a petition to review a final order or final decision of the MSPB in the Federal Circuit or in any other United States appellate court of competent jurisdiction as defined under 5 U.S.C. 7703(b)(2). In most cases, using another court would mean going to the federal circuit where the contested personnel action took place. This five year period would allow Congress to evaluate whether other appellate courts would issue whistleblower decisions which are consistent with the Federal Circuit's interpretation of WPA protections and guide Congressional efforts to clarify the law if necessary.

In addition to addressing jurisdictional issues and troublesome Federal Circuit precedents, our bill would also make important additions to the list of protected disclosures. First, it would subject certain disclosures of classified information to whistleblower protections. However, in order for a disclosure of classified information to be protected, the employee would have to possess a reasonable belief that the disclosure was direct and specific evidence of a violation of law, rule or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, a substantial and specific danger to public health or safety, or a false statement to Congress on an issue of material fact. A whistleblower must also limit the disclosure to a member of Congress or staff of the executive or legislative branch holding the appropriate security clearance and authorized to receive the information disclosed. Federal agencies covered by the WPA would be required to establish a process to provide confidential advice to employees on how to lawfully make a protected disclosure of classified information to Congress.

Current law permits Federal employees to file a case at the MSPB when they feel that a manager has taken a personnel action against them in retaliation for blowing the whistle. The legislation would add three new personnel actions to the list of adverse actions that cannot be taken against whistleblowers for engaging in protected activity. These actions would include enforcement of any nondisclosure policy, form or agreement against a whistleblower for making a protected disclosure; the suspension, revocation, or other determination relating to a whistleblower's security clearance; and an investigation of an employee or applicant for employment if taken due to their participation in whistleblowing activity.

It is important to note that, if it is demonstrated that a security clearance was suspended or revoked in retaliation for whistleblowing, the legislation limits the relief that the MSPB and reviewing court can order. The bill specifies that the MSPB or reviewing court may issue declaratory and other appropriate relief but may not direct a security clearance to be restored. Appropriate relief may include back pay, an order to reassign the employee, attorney fees, or any other relief the Board or court is authorized to provide for other prohibited personnel practices. In addition, if the Board finds an action on a security clearance to have been illegal, it may bar the agency from directly or indirectly taking any other personnel action based on that illegal security clearance action. Our legislation would also require the agency to review and provide a report to Congress detailing the circumstances of the agency's security clearance decision, and authorizes expedited MSPB review of whistleblower cases where a security clearance was revoked or suspended. The latter is important because a person whose clearance has been suspended or revoked and whose job responsibilities require clearance may be unable to work while their case is being considered.

Our bill would also add two prohibited personnel practices to the whistleblower law. First, it would codify the ``anti-gag'' provision that has been in force since 1988, by virtue of its inclusion in appropriations bills. Second, it would prohibit a manager from initiating an investigation of an employee or applicant for employment because they engaged in a protected activity, including whistleblowing.

Another issue addressed in the bill involves certain employees who are excluded from the WPA. Among these are employees who hold ``confidential policy-making positions.'' In 1994, Congress amended the WPA to keep agencies from designating employees confidential policymakers after the employees filed whistleblower complaints. The WPA also allows the President to exclude from WPA jurisdiction any agency whose principal function is the conduct of foreign intelligence or counterintelligence activities. Our legislation maintains this authority but makes it clear that a decision to exclude an agency from WPA protections must also be made prior to a personnel action being taken against a whistleblower from that agency. This provision is necessary to ensure that agencies cannot argue that employees are exempt from whistleblower protections after an employee files a claim that they were retaliated against.

Another key section of the bill would strengthen the Office of Special Counsel. OSC is the independent federal agency responsible for investigating and prosecuting federal employee complaints of whistleblower retaliation. Current law, however, limits OSC's ability to effectively enforce and defend whistleblower laws. For example, the law provides the OSC with no authority to request the Merit Systems Protection Board to reconsider one of its decisions or to seek appellate review of an MSPB decision. Even when

another party petitions for a review of a MSPB decision, OSC is typically denied the right to participate in the proceedings.

Our bill would provide explicit authority for the Office of Special Counsel to appear in any civil action brought in connection with the whistleblower law. In addition, it would authorize OSC to obtain circuit court review of any MSPB order in a whistleblowing case if the OSC determines the Board erred and the case would have a substantial impact on the enforcement of the whistleblower statute. In a letter to me addressing these provisions, Special Counsel Elaine Kaplan said, ``I believe that these changes are necessary, not only to ensure OSC's effectiveness, but to address continuing concerns about the whittling away of the WPA's protections by narrow judicial interpretations of the law.'' I ask unanimous consent that the OSC letter be printed in the Record.

OSC currently has the authority to pursue disciplinary action against managers who retaliate against whistleblowers. However, Federal Circuit decisions, like LaChance, have undermined the agency's ability to successfully pursue such cases. The Special Counsel has said that ``change is necessary in order to ensure that the burden of proof in these cases is not so onerous as to make it virtually impossible to secure disciplinary action against retaliators.'' In addition to it being difficult to win, if the OSC loses a disciplinary case, it has to pay the legal fees of those against whom OSC initiates disciplinary action. In its letter, OSC said that ``the specter of having to pay large attorney fee awards . . . is a significant obstacle to our ability to use this important authority to hold managers accountable.'' Our bill addresses these problems by establishing a reasonable burden of proof for disciplinary actions and requiring the employing agency, not the OSC, to reimburse the prevailing party for attorney fees in a disciplinary proceeding.

Finally, the bill addresses a new issue that has arisen in connection

with the recent enactment of the Homeland Security Act or HSA. To evaluate the vulnerability to terrorist attack of certain critical infrastructure such as chemical plants, computer networks and other key facilities, the HSA asks private companies that own these facilities to submit unclassified information about them to the government. In doing so, the law also created some ambiguity on the question of whether federal employee whistleblowers would be protected by the WPA if they should disclose information that has been independently obtained by the whistleblower about such facilities but which may also have been disclosed to the government as under the critical infrastructure information program.

While I believe it was Congress' intent to extend whistleblower protections to federal employees who disclose such independently obtained information, the law's ambiguities are troublesome in the context of the tendency of the Federal Circuit to narrowly construe the scope of protections afforded by the WPA. Our bill would thus clarify that whistleblower protections do extend to federal employees who disclose independently obtained information that may also have been disclosed to the government as part of the critical infrastructure information program.

We need to encourage federal employees to blow the whistle on waste, fraud and abuse in federal government agencies and programs. These people take great risks and often face enormous obstacles in doing what they believe is right. The Congress and the country owe a particular debt of gratitude to those whistleblowers who put their careers on the line to protect national security. Since September 11, 2001, we have seen a number of examples of how crucial people like Coleen Rowley, Mark Hall and Bob Lindemann are to keeping our country safe. I request unanimous consent to print a letter from Agent Rowley in the Record. In the letter she says that when she blew the whistle, she was lucky enough to garner the support of many of her colleagues and members of Congress. However, her letter warns that for every Coleen Rowley, ``there are many more who do not benefit from the relative safety of public notoriety.'' It is to protect those responsible, courageous many that we offer this legislation. We need more like them.

I ask unanimous consent to print in the Record a section- by-section explanation of the bill.

Mr. President, earlier this week, the Federal Bureau of Investigation released a report on the efficiency and effectiveness of the National Instant Criminal Background Check System, also known as NICS. According to the report, the FBI has improved its ability to respond quickly to gun dealer requests for criminal background checks, with only nine percent of the transactions delayed. These improvements have increased the immediate response rate from an average of 71 percent in early 2001 to 91 percent in 2002.

According to the report, in 2001 the NICS system processed 8.9 million background checks, with approximately 125,000 denials of permission to purchase a gun. While, in 2002, the system performed over 8.4 million checks and denied approximately 121,000 of these purchases. I commend the FBI for its hard work and commitment to improving this important law enforcement tool.

Despite the success of the NICS System and the FBI's hard work, many guns are still being purchased without any background checks being performed. Under current Federal law, criminal background checks on gun purchasers are only required for sales by licensed firearm dealers. Consequently, criminals, fugitives, and terrorists are able to purchase firearms without any background check. They do this by purchasing guns at gun shows. I believe we should require a background check on every gun sale and close the loopholes in Federal law that criminals manipulate to buy and sell guns.

During the last Congress, I cosponsored the Gun Show Background Check Act introduced by Senator Jack Reed. I believe this legislation would be a vital tool in preventing guns from getting into the hands of criminals and other ineligible buyers. This bill would simply apply existing law governing background checks to individuals buying firearms at gun shows. This bill is commonsense gun safety legislation that is supported by a number of major law enforcement organizations including the International Association of Chiefs of Police, the National Troopers Coalition, the International Brotherhood of Police Officers, the Police Executive Research Forum, the Major Cities Chiefs, the National Association of School Resource Officers, the National Black Police Association, the National Organization of Black Law Enforcement Executives, and the Hispanic American Police Command Officers Association.

I believe closing the gun show loophole is an important tool in reducing gun violence and preventing guns from getting into the hands of criminals and foreign terrorists. Since its inception, the National Instant Criminal Background Check System has prevented over 563,000 ineligible buyers from gaining access to guns, but many continue to slip through the gun show loophole. I urge my colleagues to join me in supporting this important piece of gun safety legislation.

Mr. President, I commend Senator Kennedy and all of his cosponsors for offering this amendment. The Senator from Massachusetts has identified a significant shortcoming in our current naturalization law. When we have people who are here legally, legal immigrants who have green cards, who join the Armed Forces, who put their lives on the line for our Nation, the least we can do is to make it easier for them to become citizens through the naturalization process.

A number of things in this amendment highlight the clear and simple message we are trying to send to the men and women who are willing to go into harm's way for us and to make the commitment to our Nation that military service involves.

Just a few elements: Naturalization can be carried out abroad. Right now that is not possible. Men and women of the military would have to come here, back to the geographical limits of the United States, in order to become naturalized. They could be assigned abroad, on duty abroad, and surely we want to make it possible for them to file their naturalization papers, to be interviewed, to take the oath to this Nation abroad at U.S. embassies or consulates or military installations.

We also ought to take care of the members of the family of those who are killed or who die as a result of injury or disease that is incurred pursuant to military service. Those families, those noncitizen spouses and unmarried children and parents, who could become citizens while the loved one is alive surely should not lose that status and protection when the loved one is killed or lost in action or as a result of injury or disease.

So what is done here is fundamentally human but also fundamentally significant in terms of what this Nation is all about. The men and women who are willing to join our Armed Forces to go and put their lives on the line for this Nation surely are owed a major debt by our country. One way we can in part pay this debt to them as well as to all members of the Armed Forces is to adopt the Kennedy amendment.

Again, I commend him and all the cosponsors for offering it.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, I commend Senator Reid for his constancy and his commitment to this cause. His leadership has been nothing less than extraordinary. Last year, the legislation, which he initiated, to repeal this prohibition had 82 cosponsors. He has continued to fight for this repeal, fight the administration's significant opposition. I support that effort, and I think it is particularly important at a time when we have troops being shot at in Iraq and in Afghanistan. We know some of our service members are going to suffer injuries and disabilities because of that service and service elsewhere. We must assure them that if they complete a military career, they will not be deprived of the benefits they have earned. So I support this amendment.

Mr. President, I must add a word of gratitude to Senator Reid for his always gracious commentary. This institution could just simply not function as well as we do with all of the roadblocks we face without Senator Reid. He is utterly unique in this institution in terms of moving the process forward. When we have setbacks or differences, he has overcome more of those than any other person in this Chamber as he serves as our assistant Democratic leader. I think everybody on both sides of the aisle is very much in his debt for his work, as well as for his excessively flattering comments for which I am personally indebted. I thank Senator Dorgan as well for his comments.

One word about Senator Warner. Like him, I always look forward to our work on the Armed Services Committee. To put it in a nutshell, I have

been blessed to have him as a partner. I just cannot conceive of having somebody with whom I would rather work on issues than having Senator Warner working on them as he does day in and day out. I agree with Senator Reid, it would not diminish his contribution militarily----

I will take that as my time is up. I yield back the remainder of my time on Senator Warner.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, how much time remains?

Mr. President, I yield myself 5 minutes.

Mr. President, I oppose the amendment. I believe the men and women in uniform and the taxpayers are served best by ensuring that this 2005 BRAC process go forward. Every day since September 11, they have been on the front lines of our daily fight against terrorism. They have been sent directly into battle in Afghanistan and most recently in Iraq. Every dollar wasted denies them the resources needed to ensure their success and their safety, and the success and safety of future men and women whom we place in harm's way.

The Department of Defense estimates that as much as 25 percent of their current base structure is excess to their needs. We are spending billions of dollars year after year maintaining infrastructure that we simply do not need. It is a waste of public resources to hold onto this infrastructure, and it is an impediment to our efforts to protect our national security.

Estimates of previous savings in previous BRAC rounds stand at $17 billion. Perhaps more significant for this debate are the annual savings we could expect from future base closings which are estimated at $6 billion a year. These savings have been documented countless times by the Department of Defense, by the GAO, and by the Congressional Budget Office in letter after letter saying the savings are significant. Our forces need resources for training, for technology, for weapons, and to maintain facilities in better condition.

How do we justify asking our forces to go into combat and into harm's way if we ourselves are unwilling to take the difficult steps to give them the resources that they need and deserve and

that we have the power to give to them?

One of the most important questions that has been raised is, Does September 11 change all of this? We answered that question 2 years ago when we adopted the 2005 round. We authorized it at that time, after September 11.

On November 16, 2001, GEN Richard Myers, Chairman of the Joint Chiefs, wrote us the following:

We estimate that 23 percent of our facilities are

underutilized. The Services cannot afford the costs

associated with this excess infrastructure. The Department of

Defense must have the ability to restructure the

installations to better meet the current national security

needs. The sustained campaign against international terrorism

will require wise use of our resources and the aggressive

elimination of waste.

A letter written on October 15, 2001--a month after September 11-- signed by I think every former Secretary of Defense, says:

We are concerned that the reluctance to close unneeded

facilities is a drag on our military forces, particularly in

an era when homeland security is being discussed as never

before. The forces needed to defend bases that would perhaps

otherwise be closed are forces unavailable for the campaign

on terrorism. Further, money spent on a redundant facility is

money not spent on the latest technology we'll need to win

this campaign.

I ask unanimous consent that those two letters I have identified be printed in the Record.

Mr. President, there is another issue which has been raised, and that is the future of our overseas bases. The question was asked, How do we consider the base structure in the United States before we determine the overseas base structure and what the requirements will be? There are three ongoing efforts in determining what our overseas presence will be for the future.

First, the BRAC law itself requires an infrastructure facility review on a worldwide basis before the 2005 round can proceed.

Second, in March, Secretary Rumsfeld requested input from the various combatant commanders in developing a comprehensive overseas presence in basing strategy looking out for the next 10 years. The results of that review are expected this July.

Finally, there is a provision in the bill before us that establishes an independent overseas basing commission that will provide recommendations on our overseas presence and a basic strategy to Congress that is due in August of 2004.

Senator Dorgan asked, How are we going to know what our needs are in 2005? That is when the recommendations are made to the Base Closing Commission--in May of 2005.

This isn't something being done now or this year; these recommendations are due in May of 2005.

I thank our colleagues who have maintained the difficult course here, and I yield the floor.

Mr. President, I thank the chairman for the extremely thoughtful and thorough way he handles these bills, the fair way he operates. We are all grateful to the committee and our staffs. We are both grateful to our staffs, and I thank all Members of this body.

This last vote was particularly a difficult vote for everyone, whichever way they voted. It was a difficult vote. We know that. Let's hope we can reach the right result.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

The Chair appointed Mr. Warner, Mr. McCain, Mr. Inhofe, Mr. Roberts, Mr. Allard, Mr. Sessions, Ms. Collins, Mr. Ensign, Mr. Talent, Mr. Chambliss, Mr. Graham of South Carolina, Mrs. Dole, Mr. Cornyn, Mr. Levin, Mr. Kennedy, Mr. Byrd, Mr. Lieberman, Mr. Reed, Mr. Akaka, Mr. Nelson of Florida, Mr. Nelson of Nebraska, Mr. Dayton, Mr. Bayh, Mrs. Clinton, and Mr. Pryor, as conferees on the past of the Senate.

I suggest the absence of a quorum.

Mr. President, I cannot support the fiscally irresponsible and unfair tax cut which is before the Senate because it is not what our country needs. It is ironic that on the same day that a final vote is being taken on this huge tax cut package, the Republican majority also is bringing to the floor legislation that would raise the limit on the national debt by $984 billion, the largest in our Nation's history.

This tax cut bill has more deceptions in it than an Enron financial statement. It purports to cost only $350 billion over the next 10 years, but its true costs are masked by multiple ``now you see them, now you don't'' gimmicks that will in reality cost up to a trillion dollars over the next 10 years. With deficits of over $300 billion projected for this year and the next, the last thing we need are huge tax cuts that will serve to dig us that much further into the deficit ditch. Future generations deserve better.

Furthermore, this approach will be largely ineffective in providing our economy the immediate jumpstart it needs. By giving too much to those who need it the least--the average 2003 tax cut for a millionaire will be about $93,500; the average 2003 tax cut for someone in the middle of the income spectrum will be $217--the bill will be far less effective in stimulating the economy than it would be if the tax cuts were directed to taxpayers of more modest means who would spend the tax cut now. In addition, only 17 percent of this package goes into effect in 2003, when we need it, but instead will take place years down the road. Our economy is struggling right now. Eight-and-a-half million Americans are out of work; 2.7 million private sector jobs have been lost since the beginning of this administration. Michigan lost 17,000 jobs just last month, the most of any State in the country. What we need are immediate jobs and relief, not more of the same ``trickle- down'' policies that have been tried and that failed in the past.

Expert commentators have pointed out that this bill will make it easier for corporate and upper income taxpayers to use tax shelters to even further reduce their tax bills. Instead of ending the so-called double taxation of dividends, this bill provides those with the means to accomplish it a roadmap to no taxation. That's just plain wrong. Providing large tax cuts to the wealthy in the hopes that the benefits with trickle down to everybody else hasn't worked before, and there's little reason to think that it will work now. Following the same approach that failed time and again just doesn't make sense. Just 2 years ago, President Bush was promising that his first massive tax cut of $1.4 trillion would jumpstart the economy and create jobs. It didn't.

Moreover, I am disappointed that the conference report stripped out provisions that were included in the Senate-passed bill that would have cracked down on corporations who engage in sham transactions involving offshore tax havens. Loopholes like these encourage investment overseas, not here in America. We should be closing down corporate loopholes, not preserving them.

While I am pleased that this bill contains some funds to assist our struggling State and local governments, it does not do nearly enough. Our States currently are facing their worst fiscal crisis in over 50 years, with many being forced to raise taxes or cut vital services like Medicaid in order to balance their budgets. Instead of doing all that we should to assist them, this bill includes a dividends reduction provision that will actually strip States of revenues, something which will stimulate neither jobs nor growth.

I supported and voted for an alternative tax package that was about creating jobs now, when we need it, in a way that did not mortgage our future.

The plan I supported was estimated to put more than 1 million people back to work by the end of 2004 at a fraction of this bill's costs. It would have cut taxes for every taxpaying American, providing a tax cut of $1,630 to a family of four through a wage credit, an acceleration of the child tax credit, and an elimination of the marriage penalty. I would have helped small businesses by providing them with a 50 percent tax credit to help employers maintain health coverage for their workers, and would have provided large and small companies with incentives to invest and create jobs by allowing small businesses to immediately write-off more investments and providing bonus depreciation to all companies. It also would have provided unemployment benefits for nearly 4 million laid-off workers, including those who have already exhausted their benefits. What our sagging economy needs right now is immediate jobs, growth, and stimulus, and that's what the plan I supported offered.

Insted, what will pass today is a package that is the wrong medicine for our ailing economy. It will create fewer jobs than what is needed. It will slight middle-class families in favor of the wealthy. And it will dramatically increase the deficit and national debt and drive up interest rates which will make it more expensive in the future to buy a house, pay for college, or pay off credit card debt. This is not what Americans need. I cannot support this legislation.

Mr. President, it is ironic that on the same day that the Republican majority passed a huge tax cut package that will cost, without the gimmicks, up to a trillion dollars over the next 10 years, they also are asking us to raise the limit on the national debt by $984 billion, which would be the largest increase in our Nation's history.

Just 2 years ago, the President asserted that passage of his massive $1.4 trillion in tax cuts would still allow us to eliminate our publicly held debt by 2008. Under the budget resolution that was passed recently, it's estimated that our publicly held debt will be over $5 trillion by 2008. So, under this Administration's fiscal policies, we have gone from an estimate of zero in publicly held debt in 2008 to an estimate over $5 trillion in publicly held debt in 2008. That's an astounding reversal by any measure.

The President also said that his past tax cuts would create jobs. That doesn't jibe with the fact that we've lost 2.7 million private sector jobs since President Bush took office, many of those since his last tax program was adopted.

We need to increase the debt limit, but we need to do it in a fiscally responsible way. Instead of increasing it by a trillion dollars, let's make the increase more reasonable, like the $350 billion increase that Senator Baucus is advocating. This will give us the opportunity to assess our fiscal policies sooner rather than later, to review our economic situation prior to making significant decisions which could harm us down the road. In light of our struggling economy and the huge deficit ditch that we find ourselves in, an opportunity for review sooner rather than later is essential to the economic and fiscal health of our Nation.

Mr. President, in 1994 President Clinton signed into law a ban on the production of certain semiautomatic assault weapons and high-capacity ammunition magazines. The 1994 law banned a list of 19 specific weapons as well as a number of other weapons incorporating certain design characteristics, such as bayonets and pistol grips. This law is scheduled to sunset on September 13, 2004. If the law is not reauthorized, the production of military-style semiautomatic weapons can legally resume.

In March of this year, in testimony before the Senate Judiciary Committee, Attorney General John Ashcroft indicated the Bush administration's support for the current ban on assault weapons but would not indicate support for reauthorization of the ban. Recently, the White House indicated the President does support reauthorizing the ban. However, a senior White House adviser reportedly said that this bill would never make it to the President's desk. And a spokesperson for House Majority Leader Tom Delay recently said ``we have no intentions of bringing it up.''

Failure to reauthorize the legislation would be irresponsible because the assault weapon ban works. According to National Institute of Justice statistics reported by the Brady Campaign to Prevent Gun Violence, gun trace requests for assault weapons declined 20 percent in the first calendar year after the ban took effect, dropping from 4,077 in 1994 to 3,268 in 1995. Over the same time period, gun murders declined only 10 percent and trace requests for all types of guns declined 11 percent.

Given the firepower of these firearms, it is not surprising that so many law enforcement organizations supported the Federal assault weapons ban and worked for its passage. Among the many that supported the ban were the Law Enforcement Steering Committee, the Fraternal Order of Police, the National Sheriffs' Association, the International Association of Chiefs of Police, the Major City Chiefs Association, the International Brotherhood of Police Officers, the National Association of Police Organizations, the Hispanic American Police Command Officers Association, the National Black Police Association, the National Organization of Black Law Enforcement Executives, the Police Executive Research Forum, and the Police Foundation.

It is critical that we reauthorize the assault weapons ban. Absent such action, AK47s, UZIs, and other semi-automatic weapons will again become easily obtainable weapons of choice for gang members, drug dealers, and other dangerous criminals. I urge the President to show his support for this bill by asking the House Republican Leadership to pass this bill in the House and the Senate Leadership to pass it in the Senate.

If I could ask the Senator to yield, it is my understanding that the amendment has been agreed to but the paperwork has not yet been completed to accomplish the agreement.

Mr. President, we have no objection to this amendment.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 805

I offer an amendment on behalf of Senator Sarbanes that would provide for the conveyance of 33 acres of land in Fort Ritchie,

Mr. President, I ask unanimous consent that the pending amendment be laid aside for all the amendments which Senator Warner and I will now be offering.

Mr. President, I move to reconsider the vote.

There is no objection.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 791, As Modified

Mr. President, I offer a modified amendment on behalf of Senator Daschle that would add an additional $20.3 million for B-1B bomber modifications. I believe it has been cleared on both sides.

I am not sure I can hear the Chair.

We do.

Mr. President, I move to reconsider the vote.

It has been cleared on this side.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 806

Mr. President, on behalf of Senator Biden, I send an amendment to the desk which would increase by 30 the personnel end strength of the Air National Guard.

Mr. President, I move to reconsider the vote.

No objection on this side.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 807

Mr. President, on behalf of Senator Bingaman, I offer an amendment which authorizes $2.1 million to conduct research and development activity for the Holloman Air Force Base high-speed test track.

I believe it has been cleared.

Mr. President, I move to reconsider the vote.

Mr. President, we have no objection to the amendment.

There is no objection to the amendment.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 723, As Modified

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 809

Mr. President, there is no objection on this side.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 810

Mr. President, there is no objection on this side.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 760

Mr. President, there is no objection on this side.

Mr. President, I ask unanimous consent that I be added as a cosponsor.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 790, As Modified

Mr. President, on behalf of Senator Bingaman, I offer an amendment that would add a reporting requirement to section 3131.

Mr. President, I move to reconsider the vote.

Mr. President, we support the Warner amendment.

Mr. President, I move to reconsider the vote.

Mr. President, on behalf of Senator Nelson of Florida, I offer an amendment that would authorize travel and transportation allowances for dependents of service members who have committed dependent abuse against a spouse or dependent child.

Mr. President, I move to reconsider the vote.

We have no objection.

I move to lay that motion on the table.

Th motion to lay on the table was agreed to.

Amendment No. 813

Mr. President, we support the amendment.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 814

Mr. President, we have no objection.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 815

Mr. President, on behalf of Senator Mikulski, I offer an amendment that would authorize the Department of Defense and the VA jointly to conduct a program to develop and evaluate integrated healing care practices for members of the Armed Forces and veterans.

Mr. President, I move to reconsider the vote.

We have no objection to the amendment on this side.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 817

We have no objection on this side.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 818

Mr. President, on behalf of Senator Boxer, I offer an amendment that requires the Comptroller General to submit a report regarding the adequacy of special pays and allowances for service members who experience frequent deployments away from their permanent duty stations for periods less than 30 days.

I move to reconsider the vote.

Mr. President, we support the amendment. I ask unanimous consent that I be added as a cosponsor to the amendment.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 789, As Modified

We have no objection on this side.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 820

We have no objection to the amendment.

We have no objection to the amendment on this side.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 821

Mr. President, on behalf of Senator Landrieu, I offer an amendment that would increase the maximum Federal contribution to the National Guard Challenge Program in States from the current 60 percent to 65 percent for fiscal year 2004.

Mr. President, I ask unanimous consent to be added as a cosponsor of the amendment.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 727

We have no objection to the amendment on this side.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 822

There is no objection to the amendment on this side.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 823

Mr. President, I send an amendment to the desk on behalf of Senator Landrieu, which would provide for a feasibility study of the conveyance of the Louisiana Army Ammunition Plant at Doyline, LA.

I move to reconsider the vote.

Mr. President, on behalf of Senator Feinstein, Senator Reid, and Senator Boxer, I offer an amendment that would require the Secretary of Defense to submit to Congress a 2001 survey on potential perchlorate contamination at Department of Defense sites prepared by the U.S. Air Force Research Laboratory.

I move to reconsider the vote.

Mr. President, on behalf of Senator Dodd, I offer an amendment to establish a grant program to support increasing the number of firefighters to address emergencies and terrorist threats.

I apologize.

Mr. President, I also ask unanimous consent to be added as a cosponsor of the amendment. And I ask if we can leave the roll open for cosponsors until 6 o'clock tonight--until we go out--for additional people to be added as cosponsors.

Mr. President, will the Senator yield on that?

Mr. President, I understand the yeas and nays are going to be requested. I thank my good friend from California for her kind words and, as always, the Senator from Virginia for his willingness to work to try to advance the Senate's proceedings in a fair and thoughtful way. I thank him as always for his willingness to try to find some way to bring together diverse views.

We are almost there, Mr. President, but not quite.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 828

Mr. President, on behalf of Senators Kerry and Kennedy, I offer an amendment which would authorize transportation of dependents to the presence of members of the Armed Forces who are retired for illness or injury as a result of active duty.

The amendment has been agreed to on both sides.

I move to reconsider the vote.

We have no objection.

I move to reconsider the vote.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 831

No objection.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

environmental restoration of the former eaker air force base

I also would be glad to help the Senator get this issue addressed and will work with you in contracting the Air Force.

house provision on meals ready to eat (mre)

We have included, however, a requirement for the specific authorization for low-yield warhead development beyond phase 2A or 6.2A. With this amendment, Congress and this committee, will continue to play an important oversight role on nuclear weapons development.

I believe a careful, systematic study is needed by the executive branch on the effects of such a repeal, and especially, how it affects nations such as Russia, where we are cooperatively working to reduce the proliferation of weapons of mass destruction.

I share this concern. I will work with the Senate Armed Services Committee, through our important oversight role, to insure that the Cooperative Threat Reduction Program continues to be carried out effectively by

the Departments of Defense and Energy, especially now that we have repealed the ban on low-yield nuclear weapons.

That is my understanding. I don't know of any other matters that can be resolved.

If the chairman will yield a minute, I join in thanking Senator Byrd. He has a unique role in this institution and in this Nation. He makes a huge contribution in ways sometimes which are visible but often in ways which are not visible and are not known. One of those ways has been on the Armed Services Committee with so many issues. The issues he pointed out where the so-called flexibility was being sought but was not incorporated in this bill is in significant measure a tribute to his strength in defending the role of the legislative branch. It is a reflection of what is not only a big part of him but what he has instituted in so many others as a role model in this institution for fighting for a branch of government which is truly coequal to the executive branch. We have sustained that in this bill.

While the Senator from West Virginia will be voting no for the reasons he gave, the fact that he noted and welcomed the effort we made to keep out the excess power and flexibility in the executive branch to me is very heart warming indeed. I thank him for it.

Mr. President, very briefly, let me thank Senator Warner, our chairman, for his usual courtesy, his indomitable spirit, and his willingness to try to find ways in which we can resolve differences. He has done a masterful job. We thought it was going to get done in record time. It probably didn't end up quite that way, but not because of any failure on the part of our good friend from Virginia.

I thank Rick DeBobes and all the staff on this side, Judy Ansley and all the staff on the Republican side, all the members of our committee who contributed so much, as members of the committee, as chairmen and as ranking members of the subcommittee. I think we have produced a good bill.

Let me add my thanks to Senator Reid in particular. I want to single out Senator Reid, if I may. All the leaders help us, but I must say what a unique whip we have in Harry Reid. He really makes things happen around here which otherwise simply could not happen.

I want to take a moment to acknowledge and thank the minority staff members of the Committee on Armed Services for their extraordinary work on S. 1050, the National Defense Authorization Act for Fiscal Year 2004. To arrive at final passage of this important legislation requires hours and hours of hard work and many personal sacrifices. The committee and the Senate are so fortunate to have men and women of their expertise and dedication so ably assisting us on this bill. Rick DeBobes leads our minority staff of fifteen. Although small in numbers, they all make huge contributions to the work of the Committee each and every day. As a tribute to their professionalism, I thank Chris Cowart, Dan Cox, Madelyn Creedon, Mitch Crosswait, Rick DeBobes, Evelyn Farkas, Richard Fieldhouse, Creighton Greene, Jeremy Hekhuis, Maren Leed, Gary Leeling, Peter Levine, Arun Seraphin, Christy Still, Mary Louise Wagner, and Bridget Whalan.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, my colleagues Senators DeWine and Voinovich of Ohio, Senator Stabenow of Michigan, and I are pleased to introduce the Great Lakes Water Quality Indicators and Monitoring Act. This bill will provide science-based assessments of the health of the Great Lakes and whether restoration projects are working. The bill directs the Environmental Protection Agency to develop indicators of Great Lakes water quality and related environmental factors and a comprehensive network to monitor those indicators.

The Great Lakes contain almost 20 percent of the world's fresh water. Millions of people rely on the lakes for drinking water, for economic livelihoods such as fishing and shipping, and for recreational opportunities, including swimming and boating. But the Great Lakes have suffered from decades of toxic discharges, urban and agricultural runoff, and other environmental challenges. We've made some progress in improving water quality, but we know we have a long way to go.

The stewards of the lakes at the Federal, State, and local levels use a variety of methods to determine the health of the Great Lakes and whether they are improving. For example, EPA and the Fish and Wildlife Service monitor the accumulation of chemicals in Great Lakes fish. The National Oceanic and Atmospheric Administration detects changes in the ecosystem from space-based satellites and waterborne buoys. The Geological Survey samples stream flow and quality, and the states inspect for compliance with water quality standards.

But these efforts to collect scientific data are largely voluntary and suffer from a lack of funding and coordination. They use inconsistent methods that often produce incompatible results.

This week, members of the Great Lakes Task Force released a General Accounting Office report on Great Lakes environmental programs. GAO looked at almost 200 Federal and State programs and found that a lack of coordination, poorly defined goals, and insufficient data make it difficult to evaluate the success of these programs. GAO found that there are no data collected regularly throughout the Great Lakes, and that the existing data are inadequate to determine whether water quality and other environmental conditions are improving.

In 1990, I authored the Great Lakes Critical Programs Act, which strengthened the water quality standards in the Great Lakes region. This year, Congress passed the Great Lakes Legacy Act, to speed the cleanup of contaminated bottom sediment. But we haven't established a way to evaluate the impact of these measures.

A restoration program is only as good as its ability to demonstrate results. To show results, we need science-based indicators of water quality and related environmental factors, and we need to monitor those indicators regularly throughout the ecosystem.

GAO recommends that EPA's Great Lakes National Program Office lead an effort to develop indicators and a monitoring network. Our bill gives that office the mandate to work with other federal agencies and Canada to identify and measure water quality and other environmental factors on a regular basis. The initial set of data collected through this network will serve as a benchmark against which to measure future improvements. Those measurements will help us make decisions on how to steer future restoration efforts. With a clear picture of how the Great Lakes are changing, we can change course when needed and spend public funds on the most pressing demands.

This bill serves a second purpose--it provides EPA with dedicated funding to make sure that data collection can begin in a timely manner and be carried out consistently and comprehensively as long as the Great Lakes are in need.

I encourage my colleagues to support this bill and help speed its passage.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, my colleagues Senators DeWine and Voinovich of Ohio, Senator Stabenow of Michigan, and I are pleased to introduce the Great Lakes Water Quality Indicators and Monitoring Act. This bill will provide science-based assessments of the health of the Great Lakes and whether restoration projects are working. The bill directs the Environmental Protection Agency to develop indicators of Great Lakes water quality and related environmental factors and a comprehensive network to monitor those indicators.

The Great Lakes contain almost 20 percent of the world's fresh water. Millions of people rely on the lakes for drinking water, for economic livelihoods such as fishing and shipping, and for recreational opportunities, including swimming and boating. But the Great Lakes have suffered from decades of toxic discharges, urban and agricultural runoff, and other environmental challenges. We've made some progress in improving water quality, but we know we have a long way to go.

The stewards of the lakes at the Federal, State, and local levels use a variety of methods to determine the health of the Great Lakes and whether they are improving. For example, EPA and the Fish and Wildlife Service monitor the accumulation of chemicals in Great Lakes fish. The National Oceanic and Atmospheric Administration detects changes in the ecosystem from space-based satellites and waterborne buoys. The Geological Survey samples stream flow and quality, and the states inspect for compliance with water quality standards.

But these efforts to collect scientific data are largely voluntary and suffer from a lack of funding and coordination. They use inconsistent methods that often produce incompatible results.

This week, members of the Great Lakes Task Force released a General Accounting Office report on Great Lakes environmental programs. GAO looked at almost 200 Federal and State programs and found that a lack of coordination, poorly defined goals, and insufficient data make it difficult to evaluate the success of these programs. GAO found that there are no data collected regularly throughout the Great Lakes, and that the existing data are inadequate to determine whether water quality and other environmental conditions are improving.

In 1990, I authored the Great Lakes Critical Programs Act, which strengthened the water quality standards in the Great Lakes region. This year, Congress passed the Great Lakes Legacy Act, to speed the cleanup of contaminated bottom sediment. But we haven't established a way to evaluate the impact of these measures.

A restoration program is only as good as its ability to demonstrate results. To show results, we need science-based indicators of water quality and related environmental factors, and we need to monitor those indicators regularly throughout the ecosystem.

GAO recommends that EPA's Great Lakes National Program Office lead an effort to develop indicators and a monitoring network. Our bill gives that office the mandate to work with other federal agencies and Canada to identify and measure water quality and other environmental factors on a regular basis. The initial set of data collected through this network will serve as a benchmark against which to measure future improvements. Those measurements will help us make decisions on how to steer future restoration efforts. With a clear picture of how the Great Lakes are changing, we can change course when needed and spend public funds on the most pressing demands.

This bill serves a second purpose--it provides EPA with dedicated funding to make sure that data collection can begin in a timely manner and be carried out consistently and comprehensively as long as the Great Lakes are in need.

I encourage my colleagues to support this bill and help speed its passage.

I ask unanimous consent that the text of the bill be printed in the Record.

I thank the Senator from Rhode Island for this very important amendment. The bill before the Senate, unless this amendment passes or the Warner amendment passes, removes a 10-year prohibition we have had on research and development of new nuclear weapons that could lead to their production.

Yesterday, we were assured by speaker after speaker who supports removal of that prohibition that all that is intended is to remove the prohibition of research. So the amendment of Senator Reed says, let us put that, then, clearly, into this bill; that what will be prohibited will be the development of new nuclear weapons.

What is very disturbing and why this amendment is so essential, the administration's position is reflected by the Deputy Assistant to the Secretary of Defense for Nuclear Energy, a man named Fred Celec, who says that if a hydrogen bomb can be successfully designed to survive a crash through hard rock, it will get fielded.

We have been assured by the opponents of the prohibition that, no, this is just research we are talking about. So the amendment of Senator Reed puts that clearly into law that what we are now allowing is research; that the prohibition on development will stay. That is a very important, clear message to the rest of the world. We are telling North Korea we do not want you to go there. We may militarily act to prevent you from going to the development and the production of new nuclear weapons. So it is essential that this body send a clear statement that we still have a prohibition on development, although now research would be permitted.

I thank, also, Senator Warner. Even though I think the Reed amendment is clearly better, and the message stronger that we are not removing the prohibition on development by allowing the research, Senator Warner's second-degree amendment is also a constructive addition to this debate and would be surely better than not acting at all.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

I ask unanimous consent that I be permitted to proceed for 1 minute.

Mr. President, I will indicate our strong support for this amendment. A few years ago, we actually made an effort to get this amendment, or something very close to it, adopted. In fact, it was in our bill. It went to conference, where we ran into a real roadblock.

We are going to give it a go again. In addition to the usual suspects, we have the two Senators from Maine and Missouri who will be with us in conference, and I am very hopeful that this time, with their support, we will be able to get it over the goal line with the House, because that is where the impediment was a few years ago.

It is an important amendment. I very much support it. In fact, I ask unanimous consent that I be listed as a cosponsor to the amendment.

I note that Senator Kerry has been working very hard in this area. I want to make that clear for the record, because of his strong interest and support for this approach.

Again, I very much thank the Senator from Maine and the Senator from Missouri for their strong initiative in this area.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, may I just have 3 minutes from the Senator from North Dakota?

Mr. President, I support the amendment offered by the Senator from North Dakota. I think for the reasons he gives, we should not walk down a road which tells both our people and the rest of the world that we are going to consider the development of what was called the bunker buster, which, as a matter of fact, is from 28 to 70 times the size of the Hiroshima bomb.

What we decided last year was we would put a fence around the first year's study and we would get, indeed, a report before that money was spent. It is a report which is totally unsatisfactory.

So there was a lot of doubt--a lot of doubt--in this body about whether we should proceed down a road which considers the utilization of nuclear weapons in new forms that are 28 to 70 times the size of Hiroshima.

Now we are also told, this morning, that now there may be some chemical and biological sites that could be underground for which these weapons would be used.

Well, first of all, conventional weapons are perfectly adequate to close entrances and holes. But putting that aside for a minute, just think about it. The intelligence community said they had identified 590 suspect sites in Iraq--590 sites, according to Secretary Rumsfeld. Now, that used to be a classified number, but apparently the other day it was just declassified by Secretary Rumsfeld, so I will use that number. The intelligence community said 590 sites over there in Iraq are suspect chemical and biological weapons sites.

We are going to drop a nuclear weapon on those sites based on the intelligence of the CIA? Are we kidding? Do we know what we are dealing with when we are talking about nuclear weapons 28 to 70 times the size of Hiroshima? Those are the weapons being considered for modification for the so-called bunker buster. They are not

bunker busters. These are world peace destroyers. These are city destroyers. These are nation destroyers.

For us to casually--and I think it is casual--talk about, ``Let's go down this road, we are not talking about development here, we are only talking about research,'' we have the person who is the top person in the Defense Department as the adviser to the Secretary of Defense on nuclear matters, Fred Celec, who says, ``If a hydrogen bomb could be successfully designed to survive a crash through hard rock, it will ultimately get fielded.''

Now, that is not one of the supporters of the Dorgan amendment who is saying that. That is the top adviser to the Secretary of Defense who is saying: If we can show that it will work, and design it, it will be fielded.

The rest of the world does not ignore what we do here. What we are doing here is marching down a road which is dangerous and reckless in terms of world peace and security. And we should not do it.

This is not just simply a study. This is a step--a very important step--down a road, in a direction which, apparently, according to Fred Celec, who is the Deputy Assistant Security of Defense for Nuclear Matters, will be ultimately fielded.

I support the amendment of the Senator from North Dakota. I do point out that there was a fence around last year's money. It was not as though last year we decided to proceed. There were some conditions which were attached. As far as I am concerned, when you read that report, it is very unsatisfactory, very general, and not at all sufficient to justify moving to the next $15 million.

The Senator is correct. But it is important to point out that there was so much concern about step 1, there was a fence or a condition attached to the expenditure of the money. It is incumbent upon all of us to read the report and ask, does that satisfy us that we ought to take the next step?

It is, indeed.

What dinner would we also be missing?

We are not invited.

That is correct.

Will the Senator be able to go immediately after the disposition of the Lautenberg amendment, which would be about 2 o'clock, or 1:30 or 2?

It may be later than 2.

It would be about 2:30 or quarter to 3. Would the Senator from Iowa be able to do it in that time period?

Madam President, I very much support this effort on the part of the Senator from Florida. It is a very precise, straightforward, and short amendment. The language has great meaning. The Secretary of Energy is not allowed, under this language, to commence the engineering development phase of a robust nuclear earth penetrator without specific authority of the Congress. Each word has meaning. There are not a lot of words in this amendment. It is one of the shortest amendments we have seen around here. But every single word in that amendment has meaning.

I thank not just my good friend from Florida but also the Senator from Virginia because they have really made a constructive contribution to this entire debate by supporting this approach. It is not as strong as some of us would have liked, but it nonetheless is very clear and very specific and says you may not proceed to engineering development unless Congress specifically authorizes that action. It is a significant improvement of the bill.

I thank the Senator for his generosity. His mind works extremely clearly and extremely quickly. However, the good Senator from Florida deserves much of the credit because he has been taking the lead in a whole lot of these areas. I thank both of them.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, I very much support the amendment for the reasons given by the Senator from Virginia. I commend our good friend from Florida for his initiative.

I move to reconsider the vote.

Mr. President, I hate to interrupt our dear friend and mentor from West Virginia but I must do so just to tell him that those remarks of our dear friend from Virginia were merited, indeed.

I commend the Senator from Texas for this amendment. I have, as recently as last weekend been reminded about the role of families as I joined hundreds of families and family members in welcoming home the National Guardsmen and Reserve officers from their tour of duty in Iraq. I was in Battle Creek, MI, to receive back the 110th Tactical Fighter Wing. The contribution of our Guard and Reserve is more and more relied upon, I agree with the Senator, to too great an extent. We have to do something about that.

In the meantime, families are at the center of this effort and we must do more for families. I know the chairman of our committee will seek to protect the language we are adding and enhance it in conference, and I will join him in that effort.

Yes.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Will the Senator yield for a unanimous consent agreement which I believe the Senator is interested in.

How much time does the Senator from Vermont have remaining?

Madam President, I support the Lautenberg-Jeffords-Akaka amendment. It has been said earlier in the debate that the DOD spokesperson said all the Department wants to do is codify the Clinton administration approach to this issue of endangered species on military lands. That is precisely what the Lautenberg amendment does. If we want to codify--as the opponents of the amendment say they want--what the Clinton administration did relative to this issue, this is the way to codify it. If we don't adopt this amendment, it is not in our code. It is not codified.

I support the amendment and hope it can be adopted.

Madam President, how much time is there on this amendment?

Madam President, first I thank and commend the Senator from Iowa for this amendment. It is an amendment which raises a lot of very significant issues about the Department of Defense inventory. It is a subject I had quite a bit to do with many years ago, particularly when we raised issues about the amount of the warehousing that exists in the Department of Defense, the amount of purchases which were made which contributed to that inventory, which was excessive.

We made some progress. This was a number of years ago, but nonetheless we made some progress. I think we actually reduced the number of warehouses at that time by about 40 percent. But it is obvious we still have a problem and we are going to have a greater problem if we do not address it because of the increased size of the Defense budget and the purchases of the Defense Department.

The GAO has issued a report. It is a fairly new report. Frankly, we have not had a chance to even analyze that report. Many years ago, when we took up this subject and had hearings and made some progress on this issue, we had some differences with the GAO over their approach, over the way in which they measured things. I don't know whether that is still a problem because, again, we have just not had a chance to review this report. It is very recent. We have not had a chance to meet with the GAO or the Senator from Iowa and his staff.

If the Senator is willing, I would make a commitment--I know the chairman would join me in this commitment because I have spoken with the chairman about this subject--to look into the GAO report and to do so promptly, to review it, and then to meet with the Senator from Iowa to review it and address those issues he thinks need to be addressed. We will do that promptly. We are not trying to delay it because the Senator has pointed out matters which could save us significant amounts of money.

On the other hand, if we do it wrong, for instance, if we sell things which are excess to inventory which will not be excess a few months from now, if we bring the inventory down--for instance, if we have 2 years of inventory for things we only need a year and a half of, we may not want to sell that extra 6 months; we may want to bring the inventory down to a year and a half.

There are some complications. I have had a chance to talk with our dear friend from Iowa. His heart is absolutely in the right place. His head is in the right place. His staff is in the right place. We want to try to be in the right place with him and join him in this effort and have the opportunity which I have just described to review this GAO report with him and take the appropriate action.

I urge he consider allowing that course to occur and not to press his amendment at this time. I know the chairman of the committee has some thoughts on the subject as well.

Madam President, I suggest the absence of a quorum.

How much time does each side have?

How much time does the sponsor have remaining?

And the opposition?

Well, I certainly am not committed to the bill as written because there are a number of provisions in the bill that I opposed in committee and that I have opposed on the floor.

The chairman is correct. This issue was not brought to my attention until the floor. But there are a number of issues which are brought to our attention for the first time on the floor. I hope any of us can support those issues when they are brought to the floor. We ought to all feel free to do that.

Mr. President, I wonder if I can get the attention of the Senator from New Mexico, and Senator Allard as well. I ask the Senator from New Mexico to yield me 1 minute.

The Senator from----

The Senator from Virginia and the Senator from Colorado have raised a point that there has been a significant amount of money that has been invested in this item, and there should not be a prohibition on reviewing the work, studying the work, on doing research in this area. As I understand the language in the amendment of the Senator from New Mexico, it is not intended to prevent studies or, indeed, research. It is intended to say that before you get to the design stage, which is beyond research and beyond studies, you come back for specific authorization.

So the point being made is, if the Senator from New Mexico is not intending to prevent a review of all the work, which was done apparently in the 1980s, and is not intending to prevent studies or even research under 6.0, 6.1, and 6.2, I wonder whether the Senator from New Mexico would be willing to make that clear and explicit in that amendment, if that addresses satisfactorily the issue raised by the Senator from Virginia.

I have just talked to the Senator from New Mexico. There is no intent in the language to prevent a study of previous work. All this language says is that before you begin the design stage--that is beyond pure research--before you begin the design and development stage, come back and get specific authority. I don't think that is what is intended to be done with this money this year, from what the chairman and Senator Allard have said.

So I ask the question of the Senator from New Mexico whether the Senator would be willing to add language to his amendment that nothing in here is intended to prevent the study of the hit-to-kill capability, or previous analyses, or research prior to the design stage?

Mr. President, I suggest the absence of a quorum.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, will the Senator yield? Do we have a list of all of the amendments on the Republican side?

Will the Senator yield?

Mr. President, if this amendment is presented at this time to the Parliamentarian, will we obtain a ruling as to whether or not it is relevant?

Is there any reason why the request of the Parliamentarian, relative to this amendment as to whether or not it is relevant, cannot be responded to by the Parliamentarian at this time or at any time?

I thank the Chair.

Mr. President, will the Senator yield?

I join in the commendation to the Senator of Delaware for his tenacity in keeping airlift available.

Would the Senator yield? Who has the floor?

I am wondering whether we will have the language of those amendments or amendment this evening?

Any second-degree amendment.

Would the Senator yield?

Do you expect they would be ready tonight if we are here for an additional half hour?

Mr. President, let us try to obtain a copy of that amendment, if I could ask the Senator from Nevada.

Mr. President, it is indeed cleared.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, I ask unanimous consent that the pending amendment be set aside for the duration of this and all other amendments which Senator Warner and I are offering this evening.

Mr. President, on behalf of Senators Wyden, Collins, Clinton, Byrd, and Lautenberg, I offer an amendment which requires a report on contracting for the reconstruction of Iraq.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 794

Would the Presiding Officer hold for one moment.

The amendment is agreed to on this side.

Mr. President, I move to reconsider the vote.

The amendment has been cleared. I urge the Senate to adopt it.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 759

Mr. President, on behalf of Senator Bill Nelson, I offer an amendment that expresses the sense of the Senate that the Secretary of Defense should authorize and publicize a reward of $1 million for information leading to a conclusive resolution of the cases of missing members of the Armed Forces.

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

Mr. President, I move to reconsider the vote.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 796

Mr. President, on behalf of Senators Feinstein and Stevens, I offer an amendment to prohibit funding from being used in fiscal 2004 for research, development, test and evaluation, procurement, or deployment of nuclear-tipped ballistic missile defense intercepts.

I move to reconsider the vote.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 779

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 746, As Modified

Mr. President, on behalf of Senator Dodd, I offer an amendment which requires the Army to study the use of a second source of production for gears incorporated into CH-47 helicopter transmissions.

I move to reconsider the vote.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 797

Mr. President, I offer an amendment on behalf of Senator Lieberman that would provide for a Department of Defense strategy for the management of the electromagnetic spectrum. I believe it is cleared on both sides.

I move to reconsider the vote.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 798

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

I thank my good friend from Virginia. We are both in the debt of the Presiding Officer, who has been patient through some long delays. They have been essential.

Something to look forward to.

A great sigh of relief.

Mr. President, I rise today in recognition of the 100th anniversary of Ford Motor Company. On June 16, 1903, Henry Ford, one of Michigan's most famous sons, founded Ford Motor Company.

It is seldom in history that one person or company makes such a dramatic, lasting impact on society. Thomas Edison modernized the light bulb and changed the way we see the world. Alexander Graham Bell invented the telephone, and communication was changed forever. Henry Ford brought the automobile to the working family, and revolutionized manufacturing, transportation, and everyday American life.

It would certainly be difficult to overestimate the importance of Ford Motor Company on the American way of life. When it was founded, virtually no one owned an automobile. The personal mobility we take for granted today was unfathomable at the turn of the last century. But that was to change rapidly. Within 25 years of its founding, Ford manufactured more than 15 million Model T's, at a price that made them accessible to the working family. Today, there are over 200 million cars and light trucks on the road in the United States--more than 1 for every licensed driver.

The founding of this company has become a legend. With $28,000 in cash, Ford and 11 associates founded what would become one of the world's largest corporations. The first moving assembly line was put into operation in Highland Park, MI, in 1913. This plant could produce a complete chassis in about an hour and a half--eight times faster than before.

At the same time, Ford began paying his workers $5 per day--more than double the industry average wage. This high salary attracted workers to Michigan from around the country and the world. The influx of immigrants was so great that many have called the Ford River Rouge complex the Michigan-annex of Ellis Island.

Henry Ford was one of the first industrialists to hire African Americans. With the belief that hiring African Americans would help racial problems, he reached out to the Black community. By the onset of World War II, roughly half of Detroit's African-American workingmen were on Ford's payroll.

Ford Motor Company has a long history of producing memorable automobiles, from the Tin Lizzie to the Explorer. In 1954, Ford introduced the Thunderbird, a symbol of postwar optimism. The Ford Mustang, introduced in 1964, quickly became synonymous with the American free spirit and has remained a classic American car for almost 40 years. In 1991, the Ford Explorer defined the SUV segment of the market, and remains the best selling SUV in the world.

Ford's commitment to quality and innovation continues today. Ford, the world's second largest automaker, will have a hybrid--part electric, part gasoline powered--SUV available by 2004. Ford has also produced a cutting-edge hybrid fuel cell car, and is dedicated to bringing hydrogen-powered vehicles to the market in the future.

I am proud of Ford Motor Company's accomplishments over the last 100 years. I am glad Ford calls Michigan home, and I enthusiastically offer my support for the resolution commemorating Ford's centennial anniversary.

Mr. President, today I join Senator Voinovich in introducing the Highway Funding Equity Act of 2003.

Our bill will allow States to get back more of what they contribute in gas taxes to the highway trust fund. We do this by increasing the Federal minimum guaranteed funding level for highways from the current 90.5 percent of a State's share of contributions made to the Federal Highway Trust Fund in gas tax payments to 95 percent.

Increasing this minimum guarantee to 95 percent will bring us one step closer to achieving fairness in the distribution of Federal highway funds to States.

Historically about 20 States, including Michigan, known as ``donor'' States, have sent more gas tax dollars to the Highway Trust Fund in Washington than were returned in transportation infrastructure spending. The remaining 30 States, known as ``donee'' States, have received more transportation funding than they paid into the Highway Trust Fund.

This came about in 1956 when a number of small States and large Western States banded together to develop a formula to distribute Federal highway dollars that advantaged themselves over the remaining States. They formed a coalition of about 30 States that would benefit from the formula and, once that formula was in place, have tenaciously defended it.

At the beginning there was some legitimacy to the large low- population predominately Western States getting more funds than they contributed to the system in order to build a national interstate highway system. Some arguments remain for providing additional funds to those States to maintain the national system and our bill will do that. However, there is no justification for any state getting more than its fair share.

Each time the highway bill is reauthorized the donor States that have traditionally subsidized other States' road and bridge projects have fought to correct this inequity in highway funding. It has been a long struggle to change these outdated formulas. Through these battles, some progress has been made. For instance, in 1978, Michigan was getting around 75 cents on our gas tax dollar. The 1991 bill brought us up to approximately 80 cents per dollar and the 1998 bill guaranteed a 90.5 cent minimum return for each State.

We still have a long way to go to achieve fairness for Michigan and other States on the return on our Highway Trust Fund contributions. At stake are tens of millions of dollars a year in additional funding to pay for badly needed transportation improvements in Michigan and the jobs that go with it. According to Federal Highway Administration calculations, Michigan would have received an additional $42 million in FY 02 under the Voinovich-Levin 95 percent minimum guarantee bill. That's a critically important difference for Michigan each year. The same is true for other donor States that stand to get back millions more of their gas tax dollars currently being sent to other States. There is no logical reason for some States to continue to send that money to other States to subsidize their road and bridge projects and to perpetuate this imbalance is simply unfair.

With the national interstate system completed, the formulas used to determine how much a State will receive from the Highway Trust Fund are antiquated and do not relate to what a State's real needs or contributions are.

The Voinovich-Levin bill is consensus bill developed with the help of donor State Department of Transportation agencies and their coalition working group. This legislation would increase the minimum guarantee from 90.5 percent to 95 percent for all States. A companion bill is being introduced in the House today by majority leader Tom DeLay and Representative Barron Hill. With this legislation, we intend to send a strong message to the authorizing committees that they should address the equity issue in the Senate and House highway reauthorization bills. We are determined to make progress in this bill to redistribute the highway funds in a more equitable manner so that every State gets its fair share.

This is an issue of equity and we will not be satisfied until we achieve it.