S2630 CONGRESSIONAL RECORD — SENATE April 24, 2012 one person confirmed by the Senate Again, it is a congressional privilege And finally they go on and say: who was against it. So it was a 1-to-1 and we should take advantage of it. It There is an alternative—a bill proposed by tie. That would normally defeat any- is a chance to send a message that we Rep. Darrell Issa that would create a super- thing. want all of our boards to be fair and visory body to oversee the Postal Service’s The biggest thing that is being taken equal. finances and, if necessary, negotiate new away in this, the biggest thing that I yield back any remaining time. labor contracts. The bill . . . is not perfect, collapsed the time down to a potential The PRESIDING OFFICER. Time but offers a serious solution that does not leave taxpayers on the hook. 10 days, the biggest thing is elimi- was yielded back. So we now have legislation before us nating the preelection hearing. That is f when the employees—the employees— that makes it harder, if not impossible, get their fairness of finding out exactly VIOLENCE AGAINST WOMEN REAU- for the Postal Service to close post of- who is going to be represented, who is THORIZATION ACT OF 2011—MO- fices and mail processing plants by going to be part of their unit, and get TION TO PROCEED—Continued placing new regulations and limita- any of their questions answered about The PRESIDING OFFICER. Under tions on processes for closing or con- this organization that is about to re- the previous order, the Senate will re- solidating mail processing facilities, a ceive their dues. It seems like the em- sume consideration of the motion to move in the wrong direction. It puts in ployees, for fairness, ought to have proceed to S. 1925. place significant and absolutely un- that right. It also ought to be for the The Senator from Arizona. precedented new process steps and pro- employers to have that right, espe- POSTAL REFORM cedural hurdles designed to restrict cially small businesspeople to have the USPS’s ability to manage its mail Mr. MCCAIN. Mr. President, I want time to get it together so they are not to discuss one of the amendments that processing network. violating any of the National Labor I believe we will be voting on later, and Additionally, the requirement to Relations Board’s rules that they can redo completed but not implemented easily step into and be in big trouble basically what it does is it establishes a BRAC-like process in order to con- mail processing consolidation studies during one of these elections. will ultimately prevent any consolida- I urge all of my colleagues to support solidate redundant, underutilized, and costly post offices and mail processing tions from occurring this calendar this resolution of disapproval and stop year. the National Labor Relations Board’s facilities. We found over the years that Con- What we have to realize in the con- ambush election rule. This vote will text of this legislation is that we now send a message to the National Labor gress was politically unable to close a base or a facility that had to do with have a dramatic shift, technologically Relations Board that their job is not to speaking, as to how Americans commu- stack the odds in favor of one party or the military, so we adopted a process where a commission was appointed, nicate with each other. That is what another—under this administration or this is all about. We now have the abil- another—but to fairly resolve disputes those recommendations to consolidate excess and underutilized military bases ity to communicate with each other and conduct secret ballot elections. without sitting down with pen and We have heard from several speakers were developed, and Congress was given paper, just as we had the ability to on the other side of the aisle that this an up-or-down vote. This is sort of transfer information and knowledge by debate and vote are a waste of time. based on that precedent. means of the railroad rather than the Debating the merits of this regulation The bill before us clearly doesn’t Pony Express. is not a waste of time for the millions offer any solutions. According to the We now have facilities that are way of small businesspeople and millions of Washington Post editorial: oversized and unnecessary, and we are employees who are going to be nega- The 21st Century Postal Service Act of facing a fiscal crisis. According to the tively impacted by it. In fact, once it 2011, proposed by Senators Joseph Lieberman Postal Service: goes into effect next week, I believe all and Susan Collins and passed last week by of us will be hearing from unhappy con- the Senate Committee on Homeland Secu- The current mail processing network has a stituents and asked what we did to stop rity Government Affairs, is not a bill to save capacity of over 250 billion pieces of mail per the U.S. Postal Service. It is a bill to post- year when mail volume is now 160 billion this legislation, and we will be asked. pone saving the Postal Service. pieces of mail. The contention that we should not be So now we have overcapacity that is able to raise concerns about the Na- I agree with the Washington Post. I nearly double what is actually going to tional Labor Relations Board’s ambush usually do. The Service’s announce- be the work the Postal Service does, election regulation before it goes into ment that they lost $5.1 billion in the and all trends indicate down. More and effect sounds a lot like what the Na- most recent fiscal year was billed as more Americans now acquire the abil- tional Labor Relations Board is trying good news. That is how dire the situa- ity to communicate by text message, to do to small businesses and employ- tion is, the fact that they only lost $5.1 Twitter, and many other means of ees who have questions about a certifi- billion. communications. So to somehow get cation election. The Collins-Lieberman bill, which trans- This regulation will take away the fers $7 billion from the Federal Employee mired into while we cannot close this right to question whether the appro- Retirement System to the USPS—to be used post office, we have to keep this one to offer buyouts to its workers and paying priate employees are in the bargaining open, we have to do this—we have to down debts—can stave off collapse for a realize it in the context that a large unit or whether it includes supervisors short time at best. and managers who should not be in the portion of the U.S. Postal Service’s Nor do the other measures in the bill offer business is conducted by sending what union or whether it leaves out a group much hope. The bill extends the payment of employees who should be in the schedule for the Postal Service to prefund its we call ‘‘junk mail’’ rather than the union because they have similar jobs, employee retirement benefits from 10 to 40 vital ways of communicating that it and if they are excluded, they will lose years. Yes, the funding requirement is oner- was able to carry out for so many ground against the newly unionized ous, but if the USPS cannot afford to pay for years. employees. This regulation takes away these benefits now, what makes it likely In addition, the Postal Service has a that it will be able to pay later, when mail massive retail network of more than the right to present evidence and testi- volume has most likely plummeted further? mony at a preelection hearing and to 32,000 post offices, branches, and sta- The bill also requires two more years of tions that has remained largely un- file briefs supporting a position. studies to determine whether a switch to Because of the Congressional Review five-day delivery would be viable. These changed despite declining mail volume Act, we Senators have had the oppor- studies would be performed by a regulatory and population shifts. The Postal Serv- tunity to present evidence and have de- body that has already completed a laborious ice has more full-time retail facilities bate. That is a privilege the NLRB is inquiry into the subject, a process that re- in the United States of America than taking away from many small employ- quired almost a year. Starbucks, McDonald’s, UPS, and ers and employees, and that will lead The Washington Post goes on to say: FedEx combined. And according to the to some suffering of the employees. This seems a pointless delay, especially Government Accountability Office, ap- I urge my colleagues to vote for the given a majority of Americans support the proximately 80 percent of these retail motion to proceed to S.J. Res. 36. switch to five-day delivery. facilities do not generate sufficient

VerDate Mar 15 2010 03:22 Apr 25, 2012 Jkt 019060 PO 00000 Frm 00018 Fmt 4624 Sfmt 0634 E:\CR\FM\G24AP6.025 S24APPT1 PWALKER on DSK7TPTVN1PROD with SENATE April 24, 2012 CONGRESSIONAL RECORD — SENATE S2631 revenue to cover their costs. That is payers’ money—because they are on annual cost savings, criteria and proc- what this debate is all about. I hope the hook for $2 billion a year—if you ess used to develop the plan, method- my colleagues understand that we are went from 6-day to 5-day mail delivery, ology and assumptions used to derive looking at basically a dying part of I guarantee you that the overwhelming the estimates and any changes to proc- America’s economy because of techno- majority of Americans do support a 5- essing, transportation, delivery or logical advances, and in this legisla- day delivery schedule rather than 6-day other postal operations anticipated as tion we are basically not recognizing delivery schedule. a result of the proposed closures and that problem. This, of course, kicks the can down consolidations. When 80 percent of their facilities the road. The bill also has at least five The Commission will be required to don’t generate sufficient revenue to budget points of order against it about publish in the Federal Register the def- cover their costs, then any business in which the ranking member of the inition of ‘‘excess mail processing ca- the world—in the United States of Budget Committee came to the floor pacity’’ with a period of public com- America—would right-size that busi- yesterday and spoke. ment. ness to accommodate for changed situ- So the BRAC-like amendment is es- After receiving the plans, the BRAC- ations. This bill does not do that. It sential, in my view, to moving this like Commission will be required to continues to put up political road- process forward. I don’t know how hold at least five public hearings. blocks that prevent tough but essential many more billions of dollars of tax- Finally, the Commission will be re- closings and consolidations. payers’ money is going to have to be quired to vote on the recommenda- I grieve for the individuals who took spent to adjust to the 21st century. tions, with the concurrence of at least care of the horses when the Pony Ex- There is no business, no company, no four of the members, and submit the press went out of business. I grieve for private business in America that when recommendations to Congress. Any the bridle and saddle and buggymakers faced with these kinds of losses recommendation will be the subject of when the automobile came in. But this wouldn’t restructure. And they would a congressional vote of approval or dis- is a technological change which is good restructure quickly because they would approval. The amendment recognizes the fact for America in the long run because we have an obligation to the owners and that the current business model for the can communicate with each other in- the stockholders. We are the stock- Postal Service is no longer viable. If we stantaneously. So we have a Postal holders. We are the ones who should be continue to act in an irresponsible way Service—and thank God for all they did acting as quickly as possible to bring by putting up political roadblocks, the all those years, in fact, to the point this fiscal calamity under control. American taxpayer will be the one who where they were even mentioned in our The GAO, the Government Account- ultimately suffers in the form of higher Constitution. But it is now time to ac- ability Office, states: postage prices and bailouts. We should commodate to the realities of the 21st The proposed Commission on Postal Reor- make hard choices now so future gen- century, and the taxpayers cannot con- ganization could broaden the current focus erations of Americans will have a via- tinue to pick up the tab of billions and on individual facility closures—which are ble Postal Service. billions of dollars. Again, last year it often contentious, time consuming, and inef- ficient—to a broader network-wide restruc- I ask unanimous consent the Wash- lost only $5.1 billion, which they sug- ington Post editorial, ‘‘A Failure to gested was good news. turing, similar to the BRAC approach. In other restructuring efforts where this ap- Deliver Solutions to Postal Service’s All this bill does is place significant proach has been used, expert panels success- problems,’’ be printed in the RECORD. and absolutely unprecedented and new fully informed and permitted difficult re- There being no objection, the mate- process steps and procedural hurdles structuring decisions, helping to provide rial was ordered to be printed in the designed to restrict USPS’s ability consensus on intractable decisions. As pre- RECORD, as follows: manage its mail processing network. viously noted, the 2003 Report of the Presi- [From the Washington Post, Nov. 18, 2011] Additionally, the requirement to redo dent’s Commission on the USPS also rec- ommended such an approach relating to the A FAILURE TO DELIVER SOLUTIONS TO POSTAL completed but not implemented mail SERVICE’S PROBLEMS consolidation studies will ultimately consolidation and rationalization of USPS’s mail processing and distribution infrastruc- The 21st Century Postal Service Act of prevent any consolidations from occur- ture. 2011, proposed by Sens. Joseph I. Lieberman ring this year. (I–Conn.) and Susan Collins (R–Maine) and So what do we need to do? We obvi- We pay a lot of attention to the Gov- passed last week by the Senate Committee ously need a BRAC. We need a group to ernment Accountability Office around on Homeland Security and Governmental Af- come together to look at this whole here and this is something the Govern- fairs, is not a bill to save the U.S. Postal situation, find out where efficiencies ment Accountability Office rec- Service (USPS). It is a bill to postpone saving the Postal need to be made—as any business in ommends as well. In addition: Service. America does—and come up with pro- The service’s announcement that it lost posals, because Congress does have a [GAO] reviewed numerous comments from $5.1 billion in the most recent fiscal year was special obligation, and have the Con- members of Congress, affected communities, billed as good news, which suggests how dire and employee organizations that have ex- gress vote up or down. This bill will its situation is. The only reason the loss was pressed opposition to closing facilities. Such not greater is that Congress postponed continue the failing business model of concerns are particularly heightened for the Postal Service by locking in mail USPS’s payment of $5.5 billion to prefund re- postal facilities identified for closure that tiree health benefits. According to the Gov- service standards for 3 years which are may consolidate functions to another state ernment Accountability Office, even $50 bil- nearly identical to those that have causing political leaders to oppose and po- lion would not be enough to repay all of the been in place for a number of years. tentially prevent such consolidations. Postal Service’s debt and address current The clear intent of this provision is We should listen to the Government and future operating deficits that are caused to prevent many of the mail processing Accountability Office, take politics out by its inability to cut costs quickly enough plant closures that the Postal Service of this delicate process, and move for- to match declining mail volume and revenue. itself has proposed as part of its re- ward with their recommendations. The Collins-Lieberman bill, which trans- structuring plan. It also prohibits the Our proposal would be composed of fers $7 billion from the Federal Employee Retirement System to the USPS—to be used Postal Service from moving to 5-day five members appointed by the Presi- for offering buyouts to its workers and pay- mail delivery for at least 2 years with dent, with input from the House and ing down debts—can stave off collapse for a significant hurdles that must be Senate and the Comptroller General, short time at best. cleared before approval, even though with no more than three members Nor do the other measures in the bill offer the Postmaster General has been com- being of the same political party. much hope. The bill extends the payment ing to Congress since 2009 and asking The Postal Service, in consultation schedule for the Postal Service to prefund its for this flexibility. with the Postal Regulatory Commis- employee retirement benefits from 10 to 40 One of the largest single steps avail- sion, will be required to submit a plan years. Yes, the funding requirement is oner- ous, but if the USPS cannot afford to pay for able to restore USPS’s financial sol- to the BRAC-like Commission on clo- these benefits now, what makes it likely vency would save the Postal Service at sures and consolidations, which will in- that it will be able to pay later, when mail least $2 billion annually. If you told clude a list of closures and consolida- volumes most likely will have plummeted Americans that we would save the tax- tions, a proposed schedule, estimated further?

VerDate Mar 15 2010 03:22 Apr 25, 2012 Jkt 019060 PO 00000 Frm 00019 Fmt 4624 Sfmt 0634 E:\CR\FM\G24AP6.027 S24APPT1 PWALKER on DSK7TPTVN1PROD with SENATE S2632 CONGRESSIONAL RECORD — SENATE April 24, 2012 The bill also requires two more years of country who depend on the mail. The the situation worse—which our bill, studies to determine whether a switch to estimate is there are approximately 8 through a reasonable process, is trying five-day delivery would be viable. These million jobs in our country, most of to avoid—which is a kind of shock studies would be performed by a regulatory them, of course—almost all of them—in therapy whose effect will be, as the body that has already completed a laborious inquiry into the subject, a process that re- the private sector, that depend in one McCain substitute would be, to actu- quired almost a year. This seems a pointless way or another on the functioning of ally drop the revenues of the post office delay, especially given that a majority of the U.S. Postal Service. and accelerate its downward spiral. Americans support the switch to five-day de- It is not fair and it is not realistic to I think the two numbers to think livery. speak as if the Postal Service is dead about—the ones that come from the We are sympathetic to Congress’s wish to and gone and it is time to essentially Postal Service itself—are these: By avoid killing jobs. And the bill does include bury it with the McCain substitute. I 2016, if we do nothing, the Postal Serv- provisions we have supported—such as re- cannot resist saying that Senator COL- ice will run somewhere between a $20 quiring arbitrators to take the Postal Serv- LINS and I come not to bury the U.S. ice’s financial situation into account during billion and $21 billion annual deficit. If collective bargaining and demanding a plan Postal Service; we come to change it we pass this bill and it is enacted into for providing mail services at retail outlets. but to keep it alive and well forever be- law, that deficit will be down to around But this plan hits the snooze button on cause it is that important to our coun- $1 billion—a little more—and heading many of the postal service’s underlying prob- try. toward balance in the years that fol- lems. Eighty percent of the USPS’s budget Secondly, Senator MCCAIN speaks as low. goes toward its workforce; many of its work- if the substitute legislation, S. 1789, So I urge my colleagues to vote ers are protected by no-layoff clauses. Seven that we are proposing—bipartisan leg- against the McCain substitute and the billion dollars’ worth of buyouts may help to islation—does nothing; that it is a sta- shrink the workforce, but this so-called over- BRAC amendment. The BRAC-like payment will come from taxpayers’ pockets, tus quo piece of legislation; it is not Commission amendment I think is not and it is a hefty price to pay for further even a bandaid on the problem. We all necessary. It is not necessary for us in delay. know, because we have talked about it Congress to give up and give in. We There is an alternative—a bill proposed by incessantly since we went on this bill, have a good resolution to the problem. Rep. Darrell Issa (R–Calif.) that would create that the Postal Service is in financial Incidentally, if we get this enacted, I a supervisory body to oversee the Postal difficulty. Incidentally, I wish to say think we will send a message to the Service’s finances and, if necessary, nego- there is not a dime of taxpayer money tiate new labor contracts. The bill, which American people that we can face a just emerged from committee, is not perfect, in the Postal Service. Ever since the tough problem that exists in a public but it offers a serious solution that does not Postal Service reforms occurred, it has service, deal with it in a reasonable leave taxpayers on the hook. been totally supported by ratepayers, way, and ask people to sacrifice but Mr. MCCAIN. I don’t know what the basically by people who buy the serv- keep a venerable and critically impor- ultimate result of the votes in the Sen- ices of the Postal Service, with two tant American institution alive and ate will be. I do know that if it passes, small exceptions which are small—one well. it will be strongly opposed in the other to pay for overseas ballots for members I thank the Chair and I yield the body, the House of Representatives. If of the military so they can vote and floor for my distinguished ranking it is passed and signed into law, we will another special program to facilitate member. be back on the floor within 2 years ad- the use of the mail by blind Americans. The PRESIDING OFFICER. The Sen- dressing this issue again because this is But it has a problem: $13 billion lost ator from Maine. not a solution. This isn’t even a man- over the last 2 years. Ms. COLLINS. Mr. President, I am date. It is a proposal that will do busi- This proposal of ours—Senator COL- only going to speak very briefly. I wish ness as usual and an abject failure to LINS and I, Senator CARPER and Sen- to shine a spotlight on a provision of recognize there are technological ator SCOTT BROWN—is not a status quo Senator MCCAIN’s substitute that has changes that make certain practices proposal. It makes significant changes. not yet been discussed that actually obsolete, and that is what this is all There are going to be about 100,000 raises constitutional issues. about. Is it painful? Yes. Is it difficult? fewer people working for the Postal All of us believe the labor force of the Yes. But the overall taxpayer obvi- Service as a result of this bill being Postal Service is too large and unfortu- ously wants us to act in a fiscally re- passed. There will be mail processing nately will have to be reduced, and we sponsible manner. facilities that close. There will be post do that through a system of buyouts I yield the floor. offices that will be closed and/or con- and retirement incentives through a The PRESIDING OFFICER. The Sen- solidated. There will be new sources of compassionate means very similar to ator from Connecticut. revenue for the Postal Service. The the way a large corporation would han- Mr. LIEBERMAN. Mr. President, bottom line: The U.S. Postal Service dle the downsizing of its employees. knowing we are scheduled to go out at itself estimates that our legislation, if But Senator MCCAIN’s alternative 12:50, I ask unanimous consent to stay enacted as it is now, as it is phased in takes a very different approach. It in session for no longer than 10 min- over the next 3 to 4 years, by 2016, will would have this new control board that utes more, so we will break at 1 p.m., save the Postal Service $19 billion a would be created to impose on the for Senator COLLINS and I to respond to year. This isn’t a bandaid. This is a Postal Service an obligation to renego- Senator MCCAIN—hopefully, sooner real reform, a real transformation of tiate existing contracts to get rid of than that. the Postal Service to keep it alive—$19 the no-layoff provision. The PRESIDING OFFICER. Without billion. I will say I was very surprised when objection, it is so ordered. Let me put it another way. This is a the Postmaster General signed the Mr. LIEBERMAN. I thank the Chair, bipartisan proposal. We have worked kinds of contracts he did this spring. particularly since the Chair will be oc- on it very hard to keep it bipartisan. The fact is Senator MCCAIN’s amend- cupied by the distinguished Senator We think it can pass the Senate and it ment—section 304 of which amends sec- from Montana between now and then. can ultimately be enacted. If Senator tion 1206 of existing law—requires ex- I wish to respond very briefly to the MCCAIN’s substitute were to pass the isting contracts to be renegotiated. statement of my friend from Arizona, Senate, nobody thinks it is going to That creates constitutional questions. with a couple big points. The first is get enacted into law. It would not. Cer- The potential constitutional issue de- that Senator MCCAIN has declared the tainly, the President of the United rives from the contracts clause of arti- Postal Service of the United States States would not sign it, and that will cle I, which prohibits States from pass- dead much too prematurely. He com- mean nothing will be done. What will ing laws impairing the obligation of pares it to the Pony Express. Of course, be the effect of that? The effect will be contracts. Of course, this provision electronic mail and other changes have that the post office will go further and does not apply to the Federal Govern- occurred but, today, every day, the further into debt and deficit. Also, the ment. The Congressional Research Postal Service delivers 563 million Postmaster General will be faced with Service has explained in a memo- pieces of mail—every day. There are a choice of either enormous debts and randum to me on this topic in July of businesses and individuals all over our deficits or taking steps that will make 2011 that the due process clause of the

VerDate Mar 15 2010 02:35 Apr 25, 2012 Jkt 019060 PO 00000 Frm 00020 Fmt 4624 Sfmt 0634 E:\CR\FM\A24AP6.001 S24APPT1 PWALKER on DSK7TPTVN1PROD with SENATE April 24, 2012 CONGRESSIONAL RECORD — SENATE S2633 fifth amendment has been held to pro- stated that a party wishing to terminate or Process Clause of the Fifth Amendment has vide some measure of protection modify an agreement must serve timely been held to provide some measure of protec- against the Federal Government im- written notice on the other party. If parties tion against the federal government impair- pairing its own contracts. I ask unani- cannot agree on a resolution or adopt a pro- ing its own contracts, but the limitations cedure for a binding resolution of a dispute, imposed on federal economic legislation by mous consent that the CRS memo- the Director of the Federal Mediation and the latter clause have been held to be ‘‘less randum I just referred to be printed in Conciliation Service must appoint a medi- searching’’ than those involving the state the RECORD. ator. This section also provided authority to legislation under the Contract Clause. In two There being no objection, the mate- establish an arbitration board under certain Depression-era cases, however, the Supreme rial was ordered to be printed in the circumstances and said that board decisions Court held that some statutes which im- RECORD, as follows: are conclusive and binding on the parties. paired obligations to pay purchasers of feder- A collective bargaining agreement is a ally issued war risk insurance and bond- CONGRESSIONAL RESEARCH SERVICE, contract between the Postal Service and a holders that Congress had enacted as econ- Washington, DC, July 7, 2011. recognized bargaining unit. Can Congress af- omy measures exceeded constitutional lim- MEMORANDUM fect a collective bargaining agreement its. To: Senate Committee on Homeland Secu- through legislative action? The power of If a court should be influenced by the rea- rity and Governmental Affairs Atten- Congress over employee-management rela- soning expressed in these cases, it may tion: Lisa Nieman. tions at the Postal Service, including these strike down as a Due Process Clause viola- From: Thomas J. Nicola, Legislative Attor- agreements, may be divided into prospective tion a statute it finds to impair a term of a ney, 7–5004. authority versus authority over existing Postal Service collective bargaining agree- Subject: Congressional Authority to Alter agreements. Congress has authority to mod- ment before that agreement expires. If a Postal Service Employee-Management ify the scope of bargaining prospectively. In court should wish to avoid deciding a case Relations, Including Collective Bar- the Postal Reorganization Act of 1970, Con- involving whether such a statute violates gaining Agreements. gress granted the Postal Service authority the Due Process Clause, a constitutional to bargain over compensation, benefits (such This memorandum responds to your in- ground, it may uphold the statute, but re- as health insurance and life insurance, for quiry regarding the authority of Congress to quire the United States to pay damages for example), and other conditions of employ- alter Postal Service employee-management breaching a term of the agreement. Alter- ment, but it could amend that statute to relations, including collective bargaining natively, because the limitations on federal limit the scope of bargaining subjects in the agreements. The employee-management au- impairment of contracts have been held to be future. It could, for example, provide that thority that Congress has granted to the ‘‘less searching’’ than those that apply to health insurance no longer will be the sub- United States Postal Service in the Postal state impairments under the Contract Clause ject of collective bargaining after collective Service Reorganization Act of 1970, P.L. 91– of the Constitution, which are permitted if bargaining agreements that address that 375, is broader than authority that it has found to be ‘‘reasonable and necessary,’’ a subject expire. court may uphold a statute that impairs a granted to most federal entities. Congress A more difficult question is whether Con- term of a current Postal Service collective enacted the 1970 Act, codified in title 39 of gress could modify agreement terms that the bargaining agreement and not assess dam- the United States Code, to enable the U.S. Postal Service and recognized bargaining ages against the United States. Postal Service to operate more like a busi- representatives have bargained collectively ness than a government agency. Before this and included in collective bargaining agree- Ms. COLLINS. There is also a Su- statute became law, postal services were op- ments before they expire. Article I, section preme Court case, Lynch v. The United erated by the Post Office Department, a cab- 10, clause 1 of the United States Constitu- inet level government agency. States, which makes clear that the due tion, the Contract Clause, provides that laws process clause prohibits the Federal The Act established the Postal Service as impairing the obligation of contracts shall an independent establishment in the execu- Government from annulling its con- not be passed, but this prohibition applies to tracts and the United States is as tive branch of the United States Govern- the states, not to the federal government. ment. While Congress applied to the Postal Nevertheless, the jurisprudence under this much bound by its contracts as are pri- Service some statutes including those relat- clause may help inform an inquiry regarding vate individuals. ing to veterans’ preference and retirement the power of Congress to modify terms of In the landmark case of U.S. v. that apply to federal agencies, it provided in collective bargaining agreements while they Winstar decided in 1996, the Supreme 39 U.S.C. section 1209(a) that, ‘‘Employee- are in effect. management relations shall, to the extent Court cited Lynch for the proposition In United States Trust Co. v. New Jersey, that the Federal Government ‘‘has not inconsistent with the provisions of this the Supreme Court said that, ‘‘Although the title [title 39 of the U.S. Code], be subject to Contract Clause appears literally to pro- some capacity to make agreements the provisions of subchapter II of chapter 7 scribe ‘any’ impairment, this Court has ob- binding future Congresses by creating of title 29[,]’’ i.e., the National Labor Rela- served that ‘the prohibition is not an abso- vested rights,’’ even though the Con- tions Act, which governs private sector em- lute one and is not to be read with literal tract Clause does not directly apply. ployee-management relations. By contrast, exactness like a mathematical formula.’ ’’ It Obviously, one Congress cannot bind provisions relating to those relations for fed- added that: eral agencies are codified in chapter 71 of another, and no Federal agency can The Contract Clause is not an absolute bar bargain away the right of Congress to title 5 of the United States Code. to subsequent modification of a state’s own In section 1005 of title 39, Congress identi- financial obligations. As with laws impairing legislate in the name of the people. But fied subjects of Postal Service collective bar- the obligation of private contracts, an im- no one would ever sign a contract with gaining—compensation, benefits, and other pairment [of those obligations] may be rea- an instrumentality of the Federal Gov- terms and conditions of employment. This sonable and necessary to serve an important ernment if that contract could be re- scope of subjects differs from the scope for public purpose. In applying this standard, written by Congress at will. federal agencies identified in chapter 71 of however, complete [judicial] deference to a title 5, which is limited to ‘‘conditions of em- Recognizing this, the courts have dis- legislative assessment of reasonableness and tinguished between acts which affect ployment.’’ necessity is not appropriate because the Addressing the transition from the Post state’s self interest is at stake. A govern- contracts in general, where the Federal Office Department to the businesslike U.S. mental entity can always find a use for extra Government is exercising its sovereign Postal Service, Congress in 39 U.S.C. section money, especially when taxes do not have to powers, and acts directly altering the 1005(f), as amended, stated, in relevant part, be raised. If a state could reduce its financial obligations of contracts to which the that: obligations whenever it wanted to spend the Federal Government is itself a party. No variation, addition, or substitution money for what it regarded as an important The Winstar case I mentioned before with respect to fringe benefits shall result in public purpose, the Contract Clause would illustrates this distinction. Winstar a program of fringe benefits which on the provide no protection at all. whole is less favorable to the officers and Based on the United States Trust Co. case, was brought by a financially healthy employees in effect on the effective date of courts subsequently developed a three-part Savings & Loan institution that was this section [enacted on August 12, 1970], and test when assessing the constitutionality of asked by Federal regulators to take as to officers and employees/or whom there state action challenged as an impairment of over failing thrifts during the S&L cri- is a collective-bargaining representative, no contracts—(1) whether the state action in sis of the 1980s. After Winstar entered such variation, addition, or substitution fact impairs a contractual obligation; (2) into a contract with the Federal Sav- shall be made except by agreement between whether the impairment is substantial; and ings & Loan Insurance Corporation the collective bargaining representative and (3) whether the impairment nevertheless is stipulating that it could count the the Postal Service.’’ (Emphasis supplied.) reasonable and necessary to serve a public In section 1207 of title 39, Congress pro- purpose. ‘‘goodwill’’ of the thrifts it took over vided procedures for terminating or modi- Although the Contract Clause does not to offset the liabilities it was assum- fying collective bargaining agreements. It apply to the federal government, the Due ing, Congress changed the underlying

VerDate Mar 15 2010 02:35 Apr 25, 2012 Jkt 019060 PO 00000 Frm 00021 Fmt 4624 Sfmt 0634 E:\CR\FM\G24AP6.029 S24APPT1 PWALKER on DSK7TPTVN1PROD with SENATE S2634 CONGRESSIONAL RECORD — SENATE April 24, 2012 law. Based on that change, the regu- it to Republicans: We are going to The PRESIDING OFFICER. The Sen- lators reneged, declared Winstar ‘‘inad- have—after this first vote, I ask unani- ator from Alabama. equately capitalized,’’ and seized its as- mous consent that we have 10-minute Mr. SESSIONS. Mr. President, I ap- sets. votes. preciate the good work of our col- In that case, the Supreme Court held The PRESIDING OFFICER. That is leagues on this legislation. Unfortu- that even though Congress had the the order. nately, the legislation spends $34 bil- right to change the law in general, the Mr. REID. And we are going to en- lion, all of which would be borrowed, Federal Government could still be lia- force that. So if people are not here, all of which adds to the debt of the ble for breach of contract it had en- they are going to miss a vote. Unless United States and is contrary to the tered into with Winstar, and for dam- there is a situation where we have a Budget Control Act limitations that ages. close vote, then we will extend it a lit- were passed just last August. It is real- I am concerned that if the Postal tle bit because that is what the tradi- ly a grievous problem, not one that can Service reopens and renegotiates its tion has been. So I repeat, everybody be avoided lightly. collective bargaining agreements to be here or you are going to miss a vote Just last August we agreed to certain comply with the McCain amendment, if you are not here at the end of the debt limits—the amount of debt we courts could find the Postal Service in time. would incur and add to the U.S. Treas- breach of those agreements, and force Mr. President, I ask for the yeas and ury. It was a fought-over agreement, it to pay damages. nays on this matter. but we reached it and we stood by it. I At a minimum, it strikes me that The PRESIDING OFFICER. Is there a believe we have a moral obligation to Senator MCCAIN’S language could tie sufficient second? not mislead the people who elected us There appears to be a sufficient sec- up the Postal Service in litigation for when we said we intend to stand by the ond. years, which would defeat our efforts limits on increasing debt. This bill in- The clerk will call the roll. to reduce the workforce costs faced by creases debt above that limit. The Con- the Postal Service. The legislative clerk called the roll. Mr. KYL. The following Senator is gressional Budget Office scores it as Bottom line: I am very concerned necessarily absent: the Senator from adding $34 billion in debt to the United that if the Postal Service is forced by Illinois (Mr. KIRK States. the McCain substitute to reopen and ). The PRESIDING OFFICER. Are there Chairman CONRAD has certified that renegotiate current collective bar- any other Senators in the Chamber de- a budget point of order is legitimately gaining agreements, the courts would siring to vote? placed against it. I would expect we find the Postal Service in breach of The result was announced—yeas 45, would have a motion to waive the those agreements and force it to pay nays 54, as follows: budget point of order. I would expect damages and also that it would be [Rollcall Vote No. 68 Leg.] there might be a motion to say, well, found to be unconstitutional. The ap- YEAS—45 we do not agree with CBO or that proach we have taken does not raise somehow this is so important we need those constitutional concerns. It does Alexander DeMint McCain Ayotte Enzi McConnell to add to the debt anyway. But, col- not have Congress stepping in to abro- Barrasso Graham Moran leagues, if we mean what we say, if at gate contracts, which is a very serious Blunt Grassley Paul this time in history we begin to at and potentially unconstitutional step Boozman Hatch Portman Brown (MA) Heller Risch least stay within the limits we agreed for us to take. Burr Hoeven Roberts and we don’t do that, then I think we Finally, I would say I agree with ev- Chambliss Hutchison Rubio will lose further credibility with the erything my chairman has said. Sen- Coats Inhofe Sessions American people. ator MCCAIN’s amendment does not ad- Coburn Isakson Shelby Cochran Johanns Snowe I respect the work of my colleagues dress the true problems of the Postal Collins Johnson (WI) Thune on the bill, but I think we are setting Service. Instead, it assumes that the Corker Kyl Toomey a great precedent. It is a matter of im- Postal Service is obsolete, that they Cornyn Lee Vitter Crapo Lugar Wicker portance for our own integrity and the cannot be saved, and that we should fiscal stability of America. I believe it just preside over its demise. I reject NAYS—54 is important that we adhere to that that approach. Akaka Hagan Murray limit. Thank you, Mr. President. Baucus Harkin Nelson (NE) Begich Inouye Nelson (FL) The spending measure, amendment f Bennet Johnson (SD) Pryor No. 2000 to S. 1789, the 21st Century Bingaman Kerry Reed Postal Service Act, would violate Sen- RECESS Blumenthal Klobuchar Reid ate pay-go rules and increase the def- The PRESIDING OFFICER. Under Boxer Kohl Rockefeller Brown (OH) Landrieu Sanders icit; therefore, I raise a point of order the previous order, the Senate stands Cantwell Lautenberg Schumer against this measure pursuant to sec- in recess until 2:15 p.m. Cardin Leahy Shaheen tion 201(a) of S. Con. Res. 21, the con- Thereupon, the Senate, at 1:01 p.m., Carper Levin Stabenow current resolution on the budget for recessed until 2:15 p.m., and reassem- Casey Lieberman Tester Conrad Manchin Udall (CO) fiscal year 2008. bled when called to order by the Pre- Coons McCaskill Udall (NM) The PRESIDING OFFICER. The Sen- siding Officer (Mr. WEBB). Durbin Menendez Warner ator from Connecticut. f Feinstein Merkley Webb Franken Mikulski Whitehouse Mr. LIEBERMAN. Mr. President, PROVIDING FOR CONGRESSIONAL Gillibrand Murkowski Wyden pursuant to section 904 of the Congres- DISAPPROVAL OF THE RULE NOT VOTING—1 sional Budget Act of 1974 and the waiv- SUBMITTED BY THE NLRB RE- Kirk er provisions of applicable budget reso- LATING TO REPRESENTATION The motion was rejected. lutions, I move to waive all applicable ELECTION PROCEDURES—MOTION sections of the act and budget resolu- TO PROCEED—Continued f tions for purposes of the pending The PRESIDING OFFICER. Under 21ST CENTURY POSTAL SERVICE amendment for reasons that we de- the previous order, the Senate will re- ACT scribed in the debate we had here on sume consideration of the motion to The PRESIDING OFFICER. Under the floor yesterday. The U.S. Postal proceed to S.J. Res. 36. the previous order, the clerk will re- Service says this bill will, in fact, save The question is on agreeing to the port the pending business. $19 billion a year. motion. The legislative clerk read as follows: I ask for the yeas and nays. The majority leader. A bill (S. 1789) to improve, sustain, and The PRESIDING OFFICER. Is there a Mr. REID. Mr. President, we are transform the United States Postal Service. sufficient second? There is a sufficient going to have a bunch of votes today, Pending: second. and we are going to have to do them Reid (for Lieberman) modified amendment Mr. LIEBERMAN. I ask unanimous quickly. I say this to Democrats; I say No. 2000, in the nature of a substitute. consent that the vote on this motion to

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