Congressional Record: July 24, 2003 (Senate)
Page S9857-S9887
                       (H.R. 2555)

                           Amendment No. 1373

  Mr. BYRD. Mr. President, last November Congress enacted the largest 
reorganization of the Federal Government in half a century. At that 
time, the Senate was under extraordinary pressure to pass a bill 
quickly. The President traveled the country giving campaign speeches 
accusing the Senate of not caring about homeland security. The Senate 
responded by hastily approving the massive reorganization before 
Members had a chance to study the contents of the 484 pages that were 
dropped into our laps just a few days before the vote.
  There were a lot of items in that legislation that would not have 
survived scrutiny had the Senate spent more time debating the bill. A 
number of Senators objected to certain provisions in the bill and 
introduced amendments. But those amendments were never considered 
because the Senate voted to shut off debate.
  A good many Senators wanted to put the bill behind us even if it 
meant settling for a bill that needed more scrutiny. One of the 
imperfections that the Senate was willing to accept was the 
unprecedented secrecy that was given to the new Department of Homeland 
  Although the original version of the bill took a responsible, 
moderate approach to ensure public accountability, the final version 
that was dumped on the Senate gave the Department carte blanche to 
conduct its operations in secret.
  I filed amendments to scale back this excessive secrecy, as did 
several other Senators. But those amendments were never considered 
because, as I have already indicated, debate was shut off by cloture.
  Now we read in the papers that full advantage is being taken of the 
secrecy in the Department. Their friends and contributors in the 
private sector have a seat at the homeland security table. Corporate 
leaders and campaign contributors have been awarded coveted seats on 
the advisory committees that make policy recommendations to Secretary 
Ridge and to others in the Department.
  Consequently, not only do these companies have a direct role in 
shaping our homeland security policy, but they also have direct access 
to Department officials who award the private sector contracts for 
implementing those policies.
  Last month, for the first time, the Homeland Security Advisory 
Council met to provide advice and recommendations to the Homeland 
Security Secretary about this Nation's homeland security needs.
  It is my understanding Secretary Ridge took the opportunity to remind 
the council that the Homeland Security Department was soliciting a wide 
array of innovative counterterrorism technologies. ``There are several 
million dollars available to the private sector,'' Secretary Ridge 
said. That information no doubt would have been more than just passing 
interest to the members of the advisory council. With six CEOs and a 
member of the board of directors from three top companies, the Homeland 
Security Advisory Council represents some of the top business interests 
that are in competition for government contracts related to homeland 
  It is worth noting that, according to the New York Daily News, of the 
818 members chosen to sit on the advisory committee, 11 members have 
collectively given more than $200,000 in direct contributions to the 
Republican Party at a time when questions are already being raised 
about the propriety of former aides to Secretary Ridge lobbying a 
Homeland Security Department for Government grants. It is troubling 
that the Homeland Security Secretary would risk further damage to the 
Department's credibility by naming to advisory council representatives 
of top companies that are vying for homeland security contracts and 
  At a time when questions are being asked or raised about the 
preferential treatment given to major corporate campaign contributors 
in bidding on Government contracts, it is disconcerting that companies 
such as Dow Chemical, Eli Lilly, Conoco-Phillips,

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Black & Decker, Procter and Gamble, and Lockheed Martin are 
representatives serving on the advisory council.
  This volunteering by these companies of their CEOs and board members 
to serve on the advisory council may well be a selfless act of 
patriotism, but that does not stop them from profiting from the 
contracts and grants awarded by the Department.
  Eli Lilly used its connections to use a provision in the Homeland 
Security Act to shield vaccine makers from lawsuits relative to the use 
of thimerosal, a mercury-containing preservative once added to 
childhood vaccines.
  Dow Chemical received $1.4 million in port security grants from the 
Homeland Security Department last spring.
  Lockheed Martin won a long-term contract to help modernize the Coast 
Guard, a contract that could be worth up to $17 billion. It also 
contracted to assist the Transportation Security Administration in 
developing CAPPS II, a controversial data tracking system that will 
reportedly collect information about nearly every adult American who 
buys an airline ticket.
  Despite the specter of the conflict of interest, and despite numerous 
warnings from Government watchdog groups, the advisory council has been 
exempted from public disclosure laws. The American people have no way 
of knowing what is being discussed or what advice is being recommended. 
There is no way to identify the financial interests of these council 
members in any advice or recommendations they may make to Secretary 
  With a $40 billion homeland security budget and the expectation that 
the Federal Government will spend hundreds of billions of dollars in 
the coming years on homeland defenses, corporate America is salivating 
over the money that is to be made from the grants and contracts being 
doled out by the Homeland Security Department.
  Also, being at the table when advice is given to the Homeland 
Security Secretary can be a very powerful tool. That is all the more 
reason the Congress should provide the American public with some kind 
of check to ensure that the advice being given to the Secretary is in 
the best interests of the Nation's defenses and not just in the best 
interests of companies soliciting a Government contract.
  I am concerned about the makeup of these advisory committees and how 
they are being used. We have no way of knowing what kind of 
recommendations these corporate CEOs are making to Secretary Ridge or 
what actions this Department is taking in response to those 
recommendations. We have no way of knowing whether there are real 
conflicts of interest when contracts are awarded to the same people who 
recommended the contracts in the first place.
  By requiring that the Department of Homeland Security comply with the 
Federal Advisory Committee Act, my amendment will ensure that Congress 
and the American people know how these advisory committees are being 
used. This law has served us well for over 30 years for advisory 
committees throughout the Federal Government. It includes long-accepted 
protections for sensitive information relating to law enforcement and 
national security, so there is no danger of disclosing information that 
would make our Nation more vulnerable.
  My amendment will require that the Department disclose basic facts 
about who is participating in these advisory committees and what kinds 
of recommendations are being made. The American people have a right to 
know that the Department of Homeland Security is acting in their best 
interests, not simply in the interests of any administration's friends 
in the private sector. This knowledge will strengthen our homeland 
security efforts, not weaken them, and will ensure public confidence in 
the policies that any administration--not only this one, but any future 
administration--chooses to follow.
  The safety of the American people is at stake. I believe the 
amendment will make the people safer and better informed.
  I urge the Senate to adopt this amendment.
  Mr. President, I call attention to the fact that the amendment is 
proposed by Mr. Byrd, for himself, Mr. Lieberman, and Mr. Levin.
  I ask unanimous consent that Senator Clinton's name be added as a 
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. I send the amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  Mr. BYRD. I ask unanimous consent that the reading of the amendment 
be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The legislative clerk read as follows:

       The Senator from West Virginia [Mr. Byrd], for himself, Mr. 
     Lieberman, Mr. Levin, and Mrs. Clinton, proposes an amendment 
     numbered 1373.

  The amendment is as follows:

(Purpose: To prohibit funds appropriated under this Act from being used 
   by any advisory committee that has been exempted from the Federal 
                        Advisory Committee Act)

       At the appropriate place, insert the following:
       Sec. 616. None of the funds appropriated by this Act may be 
     used to fund the activities of any advisory committee (as 
     defined in section 3 of the Federal Advisory Committee Act) 
     that has been exempted from the Federal Advisory Committee 
     Act (5 U.S.C. App.) pursuant to section 871 of the Homeland 
     Security Act of 2002 (6 U.S.C. 451).

  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. COCHRAN. Mr. President, section 871 of the Homeland Security Act 
allows for an exemption to the Federal Advisory Committee Act so that 
meetings of advisory committees at the Department of Homeland Security 
could go forward in emergency and other unforeseen situations.
  To form an advisory committee, the Federal Advisory Committee Act 
requires notice of meetings, publication of meetings in the Federal 
Register, timely public release of documents associated with the 
advisory committee meetings, and so forth, including making reading 
rooms available for members of the public to read the documents that 
are being discussed by the advisory committee.
  The Department of Homeland Security and its representatives, when 
this legislation was being developed, convinced the committee and the 
Congress to grant a narrow exemption to the Department to permit it to 
do its job in emergencies to protect and respond to threats to protect 
the homeland.
  For example, it was suggested if we had another attack, such as we 
experienced on September 11, and damages were caused to the 
telecommunications systems of the east coast, the Department would need 
to convene a committee of experts and people who understood things that 
needed to be done to put the telecommunications systems back in running 
order. And they may not have time to put a notice of an advisory 
committee meeting in the Federal Register, or to give publication or 
notice of the meeting, or to have what the act requires: timely public 
release of documents associated with the meeting to be held.
  It was the view of the Congress, at the time the act was written 
creating the Department of Homeland Security, that there were emergency 
situations that could develop that would require such an exemption.
  Also, the Department suggests that it requires the ability to meet 
with private sector officials in private from time to time, as 
necessity might require.
  The Department, as I understand it, has not invoked this exemption up 
to this time, so there is no indication that they are abusing the 
exemption that has been granted them. They are following the provisions 
of the Federal Advisory Committee Act, I assume, in every other 
respect. We have received no notice. I have no information personally 
that any violations of the act have occurred.
  The Senate passed the Homeland Security Act just months ago, and the 
Department has been operational only since March, I think, of this 
year. So to repeal a part of the Homeland Security Act in an 
appropriations bill that passed the Senate overwhelmingly, and where 
there has been no indication of abuse, seems to be unnecessary.
  So I hope the Senate will reject the amendment that is offered by the 
Senator from West Virginia.
  Mr. BYRD. Mr. President, the Secretary can, under the Federal 
Advisory Committee Act, exempt committees from notice rules in an 

[[Page S9866]]

under existing law, whenever he determines it is necessary for national 
  It is important that this amendment be adopted. We are not just 
talking about this administration. We are not just talking about this 
Secretary of the Department. We are saying that there should not be a 
blanket exemption available to any Secretary of this Department, when 
we keep in mind that from a national security standpoint, the 
Department is exempted, the President can exempt it, the Department 
head in this case can exempt it.
  But there are matters other than national security which are 
important and which are discussed by this Department. For the 
protection of the American people not only under this administration 
but also under other administrations that may come and may go, this 
amendment should be adopted. It is in the interest of the American 
people that they be protected and that we know that the American people 
know who is being asked to make recommendations, what recommendations 
are being made and whether those recommendations are in the interest of 
the American people.
  I hope the amendment will be adopted. I urge my colleagues to vote in 
support of it.
  Mr. COCHRAN. Mr. President, I ask for the yeas and nays on the 
amendment of the Senator from West Virginia.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.


                           Amendment No. 1373

  Mr. COCHRAN. Mr. President, if under the order it is permitted, we 
are ready to proceed to a vote on the Byrd amendment on which we just 
  The PRESIDING OFFICER. The Senator is correct. The question is on 
agreeing to amendment No. 1373. The yeas and nays have been ordered. 
The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. Reid I announce that the Senator from North Carolina (Mr. 
Edwards), the Senator from Massachusetts (Mr. Kerry), and the Senator 
from Connecticut (Mr. Lieberman), are necessarily absent.
  I also announce that the Senator from Minnesota (Mr. Dayton) is 
attending a funeral.
  I further announce that, if present and voting, the Senator from 
Minnesota (Mr. Dayton) and the Senator from Massachusetts (Mr. Kerry) 
would each vote ``yea''.
  The PRESIDING OFFICER (Mr. Alexander). Are there any other Senators 
in the Chamber desiring to vote?
  The result was announced--yeas 46, nays 50, as follows:

                      [Rollcall Vote No. 303 Leg.]


     Graham (FL)
     Nelson (FL)
     Nelson (NE)



[[Page S9867]]

     Graham (SC)

                             NOT VOTING--4

  The amendment (No. 1373) was rejected.
  Mr. COCHRAN. I move to reconsider the vote.
  Mr. NICKLES. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.