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FDA Food Safety Modernization Act--Continued

Floor Speech

Location: Washington, DC


Mr. HARKIN. Mr. President, in about 35 minutes we are going to be voting on cloture on the food safety modernization bill, a bill that brings us forward almost 70 years. Seven decades it has been since we have modernized or changed our food inspection and safety system in America. So we are taking that step tonight. Hopefully, we will have a final vote on it by tomorrow.

I just want to take a few minutes now before that vote to again lay out why this bill is so important and why we need to invoke cloture tonight so we can have a final vote on this bill tomorrow.

First of all, the statistics are that Americans are getting sick and they are dying because of foodborne illnesses. You would think in this day with modernization and such we would not have this.

Madam President, 325,000 Americans every year are hospitalized and over 5,000 die. Many of these are kids. I have met them with a group called Safe Tables Our Priority. I have met some of these kids. They will be damaged for life, I say to my friend from Illinois, Senator Durbin, who has been such a leader on this bill. In fact, I daresay we would not be here were it not for Senator Durbin's leadership in getting this bill started, how many years ago I do not know.


Mr. HARKIN. Well, I thank my friend from Illinois, but he is being way too generous. Again, I recognize the instigators of this, the ones who started this ball rolling, and Senator Durbin is the one who got us started many years ago. And it has taken us many years to put this together. But that is why we have such a good bipartisan bill. We have worked on this. We reported this out of our committee a year ago without one dissenting vote, Republican or Democrat. Since that time, we have been working to get other people, not on the committee, obviously, onboard to get the way paved so we could have a bill that would be broadly supported.

This bill is very broadly supported, both by the industry and by the consumers. It is one of the few bills where, as a matter of fact, we have a wide range of consumer and industry support, everything from the Snack Food Association, the Grocery Manufacturers Association, Consumers Union, Center for Science in the Public Interest, the U.S. Chamber of Commerce, U.S. Public Interest Research Group. Anytime you get the Chamber of Commerce and the U.S. Public Interest Research Group on the same bill, you know you have a bill that has broad support. This bill does.

Again, I thank my colleague, Senator Enzi from Wyoming, our ranking member on our committee, for all of his help in getting this bill through and working on it diligently over the past year.

I would be remiss if I did not also thank Senator Gregg and Senator Burr for being heavily involved in this bill and working through all of the compromises a bill like this entails.

The Food Safety Modernization Act enhances our food safety system in three critical ways. It improves the prevention of food safety problems. I always think this is key. We have to get in front of this, not to just sort of catch the food once it is contaminated and try to get it done, but to try to prevent it in the beginning. We had success in the meat and poultry industry some years ago with a preventive plan to look at where pathogens could enter the food supply and stop it there. We have applied the lessons we have learned from those last 20, almost 25 years now of that to this, so now we are going to be able to look to have a better system of preventing food safety problems and foodborne pathogens.

It improves the detection or response to foodborne illness outbreaks--detect it earlier, stop it earlier, and have a better response to what is happening. In other words, for example, in the bill we provide that retailers have to in some way notify customers if a food has been recalled. That could be a grocery store putting a sign on the shelf, for example, saying: This food has been recalled, maybe putting out a notice in their supplements that they put out in order to advise consumers they may have purchased a food that has been recalled.

Third, it enhances our Nation's food defense capabilities. Right now, how many people know that less than 2 percent--about 1.5 percent--of all of the food imported into America is ever inspected? That is 1.5 percent. Well, this is going to increase those inspections. It is also going to increase the defense capabilities in case we have a problem.

For example, we have stronger trace-back authority so we can get to the source of where this happened in a better way than we ever have been able to do in the past.

As I mentioned earlier, it provides the FDA with mandatory recall authority. A lot of people are surprised to know--consumers are surprised to find out that if there is a foodborne illness or outbreak, the Food and Drug Administration has no authority to even recall the food. One may say: Well, the companies have the authority to recall it--and they do because, frankly, they don't want to get sued, obviously. So why have a mandatory recall? Well, you might have bad actors. You might have a company that is located offshore. Maybe they have imported some bad food into this country, and maybe they think they can just take a few bucks and run. The FDA would not have mandatory recall authority. Now they would have that to protect our consumers. As I said, it also requires the retailer to notify consumers if they sold food that has been contaminated.

Now, again, the opponents of this bill have put a lot of rumors out there. Since I have lived with this bill for so long, I am surprised people would be saying things like this. One myth I read is that this bill would outlaw home gardens--you couldn't even have a home garden. I think that comes from Glenn Beck, if I am not mistaken, but it is factually incorrect. It said it would do away with family farms. In fact, the bill states explicitly that the produce standards ``shall not apply to produce that is produced by an individual for personal consumption.'' There is also an exemption for small farmers, small facilities, as they sell their products at roadside stands, farmers markets, places such as those.

Then there is another rumor that anyone who grows any food will now come under the jurisdiction of the Department of Homeland Security. I heard this myth that Homeland Security agents now will be tromping through your farms and your pastures and your tomato plants--again, absolutely, totally, factually wrong.

I am proud to say this legislation comprehensively modernizes our food safety system and does so without injury to farms and small processors; otherwise, we wouldn't have all of the industry groups on board if we were adding undue hardship on our processors and farmers. Our food safety system will continue to fail Americans unless we modernize our food safety laws and regulations. We should give the FDA the authority it needs to cope with the growing, varied risks that threaten today's more abundant food supply. We need to act, and we need to act now. We need to invoke cloture on this bill in just a little over half an hour.

How much time do I have remaining?

The PRESIDING OFFICER. Eight minutes 10 seconds.

Mr. HARKIN. Madam President, I know my friend, Senator Coburn, was on the floor earlier talking about this bill. He has a substitute he is going to offer. I have worked with Senator Coburn over the months. I know we have a basic philosophical difference about the role of government in this area. Be that as it may, we have worked hard, as I said, on bill compromises between people who do have differences of opinion. Again, as with any bill, there may be some things in here that I don't particularly like that I think we ought to do differently, but in the spirit of compromise, we don't get our way all the time around here; we have to give and take to get something done. That is what this bill is.

So I say to my friend, Senator Coburn, I know he has some problems with it, but, quite frankly, his substitute--and I wish to say this very forthrightly--his substitute kills our bill in its entirety. It kills it in its entirety. In its place, what my friend from Oklahoma would offer would be a few studies to help improve collaboration between FDA and USDA. There is weaker language on preventive contamination, which I think is so important--to prevent in the first place. The substitute will eliminate all of our prevention control provisions. It would eliminate the provisions that enhance coordination between State and Federal laboratories.

My friend from Oklahoma--and maybe later on we will get into this and debate it a little bit--my friend has always been saying we need better coordination. He is right. I said that earlier. He is absolutely right. We need better coordination between the FDA and USDA and other agencies, and that is being done. It is being done in this bill. But at the same time, his substitute would eliminate the provisions in our bill that enhance the coordination between State and Federal laboratories, which is exactly what we need to do--have State and Federal coordination. His substitute would eliminate the trace-back provisions that are so important to find out where the foodborne pathogen might be originating from. It would eliminate the important foreign supplier verification provisions we put in this bill--that if you are importing food from a foreign country, you have to verify that the food has met the same kinds of inspection standards we have in our own country. The substitute of my friend from Oklahoma would eliminate that provision. It would eliminate the requirement that we increase our inspection frequencies in this country, and it would eliminate the FDA's ability to recall food--the mandatory recall provision we have--even when life-threatening contamination is detected.

So for all of those reasons, I hope the substitute will not be adopted. As I said, I know my friend has some feelings about this bill. I understand that. But many of the things Senator Coburn brought up earlier and in good faith I worked with him and his staff on--some of his ideas, we appropriated in this bill. Senator Coburn--I say this as a friend--has a keen eye a lot of times for things that are duplicative or things that maybe sound good but don't do what you think they are going to do. He has a keen eye. I give him credit for that. So a lot of those things we have looked at that in the past he suggested, and we have adopted those things and put them in the bill.

Lastly, one of Senator Coburn's objections is that the bill is not paid for. Again, I think that is misguided. He knows my feelings on this issue. This is an authorization bill. Any funding that would come for this would have to be appropriated in the future. There would be absolutely no deficit increase at all.

This is from the Congressional Budget Office. From our bill, we asked them what would it do to increase the deficit. As my colleagues can see, from 2010 to 2020, there is a zero increase in the deficit because of our bill.

So, again, while I understand Senator Coburn has problems with the bill, I think his substitute really wipes out everything we have done on a bipartisan basis. Senator Enzi has worked hard, as well as Senator Gregg, Senator Burr, and others. We have worked with industry and consumer groups for over a year now to make sure we had a good bill, a comprehensive bill--one that was a true compromise between competing interests but one that gets the job done. And what is the job? To help reduce the number of foodborne illnesses in this country.

I say in closing, is this bill going to stop everybody from getting sick while eating food? No, no. It will not be 100 percent. Will it be better than what we have? You bet. It is going to prevent a lot of foodborne illnesses that otherwise would happen in this country under the present system.

Just think about this: We are operating under a food inspection safety system in this country that was adopted 70 years ago. Think of how our food supply--the growing, the processing, and the shipping--have all changed in that 70 years. We go to the grocery store in the wintertime and we buy fresh raspberries from Chile or blueberries from Argentina. We go to the store in the summertime and we buy produce made in this country from all over, commingled and shipped together. A lot of times, you don't know where it is coming from. There are so many different things that have happened over the last 70 years. Yet our inspection system has not kept up with how our food is produced, how it is processed, how it is shipped and stored, and we have not updated what we should do with imported foods. We are getting more and more imported foods into this country.

So for all of those reasons, I hope we will have a good, strong vote, a good bipartisan vote on the cloture issue and that the other measures that are coming up--we have an amendment on taxes--if either the Johanns amendment or the Baucus amendment is adopted, it will kill this bill. It will kill the bill.

I happen to be one of those who think we have to change the 1099 provisions for small businesses but not on this bill. We will do that before the end of the year, but if it is adopted on this bill, it will kill our food safety bill because the House will blue-slip it because the Constitution says bills of revenue have to originate in the House, not in the Senate; likewise, the earmark provision Senator Coburn will be offering--we will have a good debate on that too--again, if that is adopted, it will kill the bill. There is just no doubt about it.

So we worked hard for many years to get to this point. We have a good bipartisan bill. We have a bill we believe the House will pass and send on to the President to keep our people more safe. So I hope this body will reject any extraneous amendments.

Madam President, I yield the floor and note the absence of a quorum.


Mr. HARKIN. Mr. President, I thank the Senator from Hawaii for yielding me 15 minutes of our time.

I challenge anyone--even my friend from Colorado who just spoke, a new Member of this body--I challenge anyone to identify any other part of the Federal budget that is more transparent, more open, more subject to scrutiny, more accessible to the media and the public than congressionally directed funding or earmarks. Every Member who requests an earmark in an appropriations bill must post his or her request online at least 30 days before the Appropriations Committee considers the bill. Every Member who requests an earmark must certify that he or she does not have a pecuniary interest in those requests. Each and every earmark that comes before the Senate is listed in the committee report for all to see, and if you log on to the committee Web site, you can find a link to every single request any Member has made. It is all out there in the open.

I remind people of this because one of the misleading arguments against congressionally directed earmarks is that they are supposedly done in secret, hidden from the public eye. At one time, that may have been true to some extent but today, thanks to reforms that were implemented by Democrats, by a Democratic House and a Democratic Senate in 2007, there is more sunshine on congressionally directed spending than on any other spending decisions in the entire Federal Government.

There is more sunshine on congressionally directed funding than on any other Federal spending in the entire Federal Government. Why do I emphasize that? Let's consider how the executive branch--the President--directs spending to States and local communities. Make no mistake about it, the executive branch earmarks funding, but there is very little sunshine when it comes to those decisions. They are very hidden.

When a Federal agency announces that a facility should be built in Nebraska rather than Texas or Alabama or whether a defense contract should go to a company in Colorado or Arizona rather than Rhode Island or Ohio, there may be no accountability to voters for those decisions. The employees of Federal agencies are civil servants. They are good people, but they are not elected. They do not meet with constituents. They cannot possibly understand the needs of local communities as well as those who stand for election.

Most important, no one knows when those civil servants get a phone call from their bosses, higher up, telling them, for example, to jiggle, to rig a grant competition for political reasons. Does anyone doubt that is done? Every single year it is done.

Frankly, Senators and Congressmen do it. What Senator worth his or her salt or any Member of the House fighting for their constituency doesn't call up the Secretary of Transportation, Secretary of Housing and Urban Development, Secretary of Defense? We all do it. We all do it to protect our own constituents. And if you happen to be on the right committee--for public works, maybe, or for education or for the myriad of things the Federal Government does--those Secretaries tend to pay attention, and they especially pay attention if they are in the same party you are or they may pay attention if they want your vote for something else.

An example: A few years ago during the Bush administration, I asked the inspector general to examine a program in the Employment and Training Administration called High-Growth Jobs Initiative. It sounds great, doesn't it--High-Growth Jobs Initiative. This was an executive branch program. The IG reported that, of the 157 grants awarded under the program, 134 had been awarded without any competition.

Noncompetitive awards accounted for 87 percent of the total funding, and the inspector general found many serious lapses in the award process. For example, a failure to explain why there was no competition; the lack of any documentation regarding potential conflicts of interest.

So was it any surprise when we found out that some of these noncompetitive grants went to organizations that supported President Bush's reelection campaign or was this just a coincidence? Let's not be naive. This happens. I may have pointed out President Bush because it happened to be an investigation I asked for. It happens under Democratic Presidents too.

If this amendment passes, if the Coburn amendment passes, there will still be earmarks. There will be earmarks, but only the executive branch will be able to do it. They will have the power to designate where those earmarks go, and that flies in the face of the clear intent of the Constitution. Article 1 of the Constitution expressly gives the power of the purse to the Congress. We are all familiar with the principle of checks and balances.

One way the Constitution puts a check on the executive branch is by giving this branch, the legislative branch, the final say on spending. I have said so many times that the President of the United States cannot spend one dime that we do not authorize him to, and we can take it all back if we want. Oh, they have set up an executive branch but only because Congress gives that power to the President.

The Constitution gives Congress the final say on spending. I realize the Constitution may seem like ancient history to some people. I am sorry to say it may seem like ancient history to some Members of this body. So let me paint a picture of a world where only the executive branch can decide to direct Federal spending. Let me paint this picture. Let's imagine the Coburn amendment passes and a future President wants Congress to pass a bill. It can be a Democratic President or it can be a Republican President. It does not matter.

The vote on the bill is going to be close. The President calls Senator Jones and says: Senator, I would like your support on this bill. Senator Jones says: I am sorry, Mr. President, I have thought hard about it. I am not going to be able to support that bill.

Oh, there is probably a little pause on the phone, and the President says: You know, Senator, I know that replacing that bridge in your capital city is real important to you. It would be a real shame if your State missed out when the executive branch is setting its priorities for next year. Now, Senator Jones, would you like to reconsider how you are going to vote on that bill?

That is executive branch earmarking. Again, as I said, it makes no difference whether the President is a Republican or Democrat. It is a matter of respecting the Constitution and preserving the constitutional prerogatives of the legislative branch. Some people say: Well, Harkin, why do you fight so hard for these earmarks? As Senator Udall says, it is 1/2 percent of total Federal spending. I fight so hard because the Constitution gives that power to the legislative branch. We should protect the constitutional prerogatives of the legislative branch, not just willy-nilly give them to any President of the United States, which is what the Coburn amendment does.

Read the amendment carefully. See how it defines ``earmarks.'' It applies only to ``a provision or report language included primarily at the request of a Senator or Member of the House of Representatives.''

There is nothing in the Coburn amendment to prohibit any earmarks by the President. They can earmark anything, and they will because they always do. They will earmark, and guess what. Senators--Senators--will start going to the President and saying: Mr. President, can you, please, I need that bridge. I need that flood control project. We just had a disaster, Mr. President.

Well, Senator, I will think about it when we set our priorities next year. Well, now, Senator, how are you going to vote on my priorities?

Do you want to be in that position? I do not want to be in that position. I want to be in the position where Congress fulfills its Constitutional prerogative. So under the Coburn amendment, if Congress requests, it is an earmark; if the President requests, it is not an earmark. How does that make sense? How does that make sense?

Well, here is an example again of the double standard. The fiscal year 2011 Labor, Health and Human Services, Education appropriations bill that the Senate will probably vote on in December includes funding for national education groups such as Teach for America, Reading is Fundamental, Reach Out and Read, the National Writing Project, and many others. These are successful, proven programs with significant bipartisan support.

But under the definition of the Coburn amendment, all are earmarks and none would be funded. They would all be eliminated. But under the terms of the Coburn amendment, if the President wanted to fund those programs, no problem. They would not be considered earmarks at all and they could receive funding, as long as the President wanted to do it. Again, I ask, what sense does that make?

My State of Iowa had terrible floods in 2008--a lot of damage. Louisiana and Texas have had destructive hurricanes on a regular basis. In the wake of these disasters, typically the Corps of Engineers comes up with a plan to mitigate the damage from future possible disasters. For example, the Corps is now working to improve a flood prevention program in Cedar Rapids, IA, which was devastated by the worst flood in the history of Iowa in 2008.

If the Coburn amendment passes, whatever the Corps plan comes up with will be final, even if local officials strongly disagree with that. Under the terms of the Coburn amendment, a strong case may be made that any legislative action by Members of Congress to modify the Corps plan would be an earmark--an earmark. Representing my constituents, it would take an extraordinary two-thirds vote in the Senate to change the Corps of Engineers plan--not a majority, not 60 percent but two-thirds of the Senate. Again, I again ask you, what sense does that make? How are we fighting for our constituents when the President decides it; we cannot.

We have local constituents who say: We have better ideas and plans on what to do. The Corps says no. Well, that is the end of it, unless the President tells the Corps what to do. I do not want to lose my ability to intervene effectively for local or State officials when this kind of issue arises, and I do not think Senators from Texas, Louisiana or any other State want to lose their ability to stand for the best interests of their State. I cannot imagine any Senator who would forfeit this important constitutional prerogative, give up, give up your constitutional prerogative to the President, so you would not be able to fight for your State and your constituents. Is that what you are going to tell them?

Proponents of this amendment say: Forget about article 1 of the Constitution. We have to do whatever it takes to cut the deficit. The only way to do that is to ban earmarks.

This is grossly misleading. Yes, we do need to cut the deficit. Banning earmarks will not do anything to help.

Congressionally funded mandates, as I said, are less than one-half of 1 percent of total Federal spending. As one observer noted: The best way to lose weight is to shave. My friend, Senator Udall, said reforms circumvent the budget process. No, it does not. Nothing we do on appropriations at all circumvents the budget process.

He said: When you are in a hole, stop digging. Well, sure, we can stop digging. We can stop the earmarks here. We are just going to shift them to the President. That is all. That is all that is going to happen.

Lastly, I had to laugh when I read this quote from Representative Michele Bachmann in the House. This was in Congressional Quarterly Today. She is founder of the House Tea Party Caucus, one of several lawmakers who have pledged not to seek earmarks. But she told the Minneapolis Star Tribune she thinks the word ``earmark'' should not apply to infrastructure projects. ``I don't believe that building roads and bridges and interchanges should be considered an earmark.''

Oh, so she gets to decide what is an earmark. She wants no earmarks except for what she wants as an earmark. That is it. Congressman Mica of Florida said: ``There are some bills that require some legislative language to direct the funds, otherwise you're just writing a blank check to the administration.'' That is a Republican Congressman from Florida.

Congressionally directed spending is congressionally directed spending whether it is a highway or a hospital, whether it is in Wyoming or Tennessee. I, for one, am proud of the directed funding that I have been able to secure on behalf of my State and for other States that I have worked hard for or other entities such as Teach for America. It does not necessarily help Iowa but it helps a lot of States.

These fundings have created jobs, trained nurses, built roads, and, as the distinguished chairman said, one time I remember when Pete Domenici put that money in there for the Human Genome Project, it led to the establishment of the Human Genome Institute and a complete mapping and sequencing of the human gene. Had that money not been directed, it never would have happened, I say to my chairman.

So a lot of times Congressmen, Senators have good ideas on what to do to direct some of this funding. I think we ought to be proud of that. As long as the sunshine is on it, it is out in the open, everybody knows where it goes, everybody knows who has requested it, to me, this is the constitutional prerogative of the Senate and the House, and we should not--should not--give it up to any President.

I yield the floor.


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